A backdated letter, no selection process, and a question about timing
A Fair Work ruling from 2 April 2026 raises pointed questions about managing redundancy when an employee is returning from maternity leave.
The case of Jessica Wadeson v Highmark Homes Pty Ltd [2026] FWC 1151 began when Wadeson, a Sales Leader at Highmark Homes, commenced maternity leave in September 2024 and gave birth to her son in November 2024. From 14 January 2025, she had a series of conversations with director Anthony Savona about returning to work. She was told her job was still there but that a decline in work made finding a suitable role for her difficult.
The picture grew more complicated from there. On 28 April 2025, Wadeson emailed Savona asking him to formally make her position redundant so she could access better Centrelink childcare subsidy rates. On 2 May 2025, she followed up asking for her position back at a similar role with the same pay scale, or a formal redundancy. On 3 May 2025, Savona allegedly replied saying he would write a redundancy letter purely for the sole purpose of sending to Centrelink so she could achieve cheaper childcare fees and find employment. On 5 May 2025, she received a termination letter dated 17 April 2025, stating the position of Sales Leader was no longer needed due to the economic downturn and decline in sales. Commissioner Perica found the effective date of termination to be 5 May 2025, the date Wadeson received the letter.
Wadeson told the Commission that she had asked for the letter on 5 May 2025, and that Savona had backdated it to 17 April 2025 to help her out. She also claimed Savona had assured her the redundancy was not genuine but was "purely for the sole purpose to send to Centrelink so [she] could achieve cheaper Centrelink child care fees." Savona denied ever giving that assurance.
In her application, Wadeson also claimed she was dismissed due to her pregnancy under s 351 of the Fair Work Act 2009. Commissioner Perica noted that as Wadeson had already given birth at the time of her dismissal, that particular protected attribute was technically unavailable to her. The Commission instead examined her argument that she was dismissed for having taken maternity leave, a separate but related claim under general protections provisions ss 340, 341 and 343.
The Commission paid close attention to the timing and process of the redundancy. It emerged in the conference that three employees in total were made redundant. Highmark filed a letter from Mr Brad Savage, a Partner of KPMG in Business Advisory, summarising a meeting with Savona that had taken place the week of 5 May 2025 — the same week Wadeson was dismissed. Commissioner Perica found this raised questions, observing that the more likely scenario was that the termination decision had been made before the oral advice was received. The Commissioner also noted there was no evidence before the Commission on the process by which employees were selected for redundancy.
The Commission further noted there was "temporal proximity in her request to return to work from maternity leave and the decision to terminate her," and found the general protections claim arguable. That claim could not be assessed, however, because of the timing of her application.
Wadeson filed her application on 27 January 2026, placing it 246 days past the 21-day statutory deadline. She cited severe post-natal depression and PTSD as reasons for the delay. Commissioner Perica acknowledged these conditions but found that without medical evidence demonstrating how they affected her capacity to file, they could not support an extension of time. The Commission also found that a delay of 246 days was presumed to cause, and did cause, forensic prejudice to Highmark through the fading of witness memories. Both factors counted against a finding of exceptional circumstances.
The remaining three statutory factors — action taken to dispute the dismissal, the merits of the application, and fairness as between the applicant and other persons in a similar position — were each found to be neutral. On balance, with two factors against and none in favour, the Commission was not satisfied that exceptional circumstances existed to justify granting an extension of time.
The application was dismissed on 2 April 2026.
For HR professionals, the case surfaces several considerations worth noting: the level of scrutiny that applies to redundancies involving employees on or returning from parental leave, the importance of sequencing and documenting redundancy decisions before they are communicated, the need for a demonstrable and documented selection process, and the evidentiary standards expected when mental health is raised in employment proceedings.
