Fair Work examines whether raising employment rights led to retaliatory dismissal
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application from a worker who argued his employment was terminated shortly after he raised concerns about unpaid wages and missing superannuation contributions.
The worker had been employed for seven months in a remote role when his employment abruptly ended following a meeting with the company director.
The employer contended the worker's skills did not match his resume, though no prior performance issues had been raised.
The worker pointed to a temporal connection between raising his employment entitlements and the sudden termination of his employment.
He argued that he had received no negative feedback about his work performance prior to dismissal and that the employer's stated reasons were unsubstantiated.
The employer was directed on multiple occasions to participate in the proceedings and file material, but failed to appear at hearings or respond to correspondence.
The case required the FWC to examine whether the dismissal was harsh, unjust or unreasonable under section 387 of the Fair Work Act 2009, and whether the timing of events suggested a retaliatory dismissal.
Remote role ended after pay queries
The worker started working for a technology services company on 30 September 2024 in a role described as a Microsoft Dynamics team leader and project manager.
The company provided services to clients relating to Microsoft products, and the worker was responsible for carrying out project duties with clients.
The job was entirely remote, with the worker based at home whilst the company was established in Sydney.
The worker said he was not provided with any negative feedback or warnings about his work performance prior to his dismissal.
The worker said he did not receive any superannuation contributions during the entirety of his employment, which lasted seven months.
He raised the superannuation issue with the company director in late February 2025 and again on 31 March 2025, but did not receive any reply.
On 30 April 2025, the worker did not receive his fortnightly pay for the period worked between 13 April 2025 and 26 April 2025.
He emailed the director about the unpaid wages and superannuation in two separate emails on 30 April 2025.
The worker said he did not receive any reply to his emails, so the next morning, on 1 May 2025, he asked the director about them in a meeting held via Microsoft Teams.
The director replied, saying he had seen the emails and scheduled another meeting later that morning to discuss them.
Meeting delivered unexpected termination news
A meeting was held later on 1 May 2025 via Microsoft Teams, but rather than discussing the unpaid wages and superannuation, the director said "he wanted to talk to me because he doesn't feel we are moving together in the same direction...he further added, my work does not reflect the professional experience or skills and competencies described in my resume, and we have reached the end of the road".
In response, the worker disputed this and said he was not offered the tasks for the role and responsibilities that he was promised in his job interview.
The director also alleged that the worker had not worked 40 hours every week and said the worker had not been paid for the last fortnight because of this.
The worker said this was not true and that the spreadsheet provided by the director did not take into account public holidays and paid annual leave.
The worker told the director that he was entitled to be paid for paid annual leave and public holidays, but the director did not appear to accept this.
The director said "he will look into both today and will be sending a deed of release letter" that would include the reason why it was "the end of the road" and would involve a "settlement" for the unpaid work.
A document was sent later that day, but the worker considered the numbers incorrect and did not sign it.
The worker's access to the company's systems was stopped within a few days following 1 May 2025, and he did not perform any work after this date.
Valid reason for dismissal examined
The FWC examined whether there was a valid reason for dismissal related to the worker's capacity or conduct. For a reason to be valid, it should be "sound, defensible or well founded" and should not be "capricious, fanciful, spiteful or prejudiced".
The FWC found that on the evidence before it, there had been no prior criticism levelled at the worker's work.
The Commissioner observed that "a temporal connection exists between [the worker] raising discrepancies in his pay and superannuation entitlements and [the director's] sudden and unsubstantiated decision to terminate [the worker's] employment".
The Commissioner stated: "Taking into account that on the evidence before me, the criticism of [the worker's] skills and competencies were not justified and there had been no issues previously raised with his performance, I consider it likely that the reason, or a reason for the decision to terminate his employment was retaliatory, in response to [the worker] raising these employment rights issues."
The FWC found the employer did not have a valid reason for dismissal relating to the worker's capacity or conduct, stating that the director's comment about the worker's skills "was not sound, defensible or well founded".
The Commissioner concluded this circumstance weighed "heavily in favour of a finding that the termination of [the worker's] employment was harsh, unjust and unreasonable".
Procedural fairness failures identified
The FWC examined whether the worker was notified of the reason for dismissal and given an opportunity to respond before the decision was made.
The FWC found there was no evidence that the worker was informed of a valid reason before he was told of the decision to terminate his employment on 1 May 2025.
The Commissioner stated: "This factor weighs in favour of a finding that the termination of [the worker's] employment was unfair."
The FWC found there was no evidence that the worker was given an opportunity to respond to the decision before he was told about it.
The Commissioner stated: "I find [the worker] was not provided with an opportunity to respond to the reason for his dismissal. This factor weighs in favour of a finding that the termination of [the worker's] employment was unfair."
On warnings about unsatisfactory performance, the Commissioner noted that "there is no evidence before me that [the worker] was warned about unsatisfactory performance at any stage prior to dismissal".
The FWC considered whether the size of the employer's enterprise or the absence of human resources specialists would impact procedures. The worker said the employer had 20 to 25 employees at the time.
However, the Commissioner stated: "However, there is a difference between the ignorance which may result from a small business not having access to human resources expertise, and a failure to adhere to basic standards of decency with respect to an employee. I do not consider the size of the business, or the absence of human resources expertise excuses the abrupt and cursory manner in which [the director] effected the termination of [the worker's] employment."
Dismissal found harsh, unjust and unreasonable
The Commissioner concluded: "The weight of these considerations bears in favour of a finding that the dismissal of [the worker] was harsh, unjust and unreasonable and I find [the worker] was unfairly dismissed."
The FWC also noted that on the evidence before it, the employer appeared to have failed to make superannuation contributions and did not pay the worker his salary in the final few weeks of employment, stating these matters "weigh in favour of a finding that the termination of [the worker's] employment was unfair".
The worker did not seek reinstatement, and the FWC found in these circumstances that reinstatement was inappropriate.
The FWC examined the worker's length of service, which was about seven months, finding this "is not a particularly significant period of time and does not weigh heavily in favour of a significant award of compensation in this matter".
The FWC found: "I consider that in all the circumstances, [the worker's] employment would have continued for at least a further two months."
The worker gave evidence that he had applied for hundreds of jobs without success since the dismissal.
The FWC accepted this evidence and found the worker had sought to mitigate his loss. The worker had not earned any remuneration since the dismissal.
The Commissioner stated: "The effect of the dismissal over [the worker] where he has experienced this period without income is therefore significant."
Compensation ordered despite employer's absence
The FWC calculated compensation based on the worker's remuneration and the anticipated period of employment.
The Commissioner stated: "First, I consider that it is reasonable to forecast that [the worker's] employment would have continued for at least a further two months. Secondly, I also consider that the significant effect of the dismissal over [the worker's] personal and financial circumstances warrants a further amount of compensation equivalent to one month's pay."
The FWC ordered the employer to pay the worker three months' pay, calculated at $1,538.40 per week, or $18,460.80 less taxation as required by law, plus a superannuation contribution of $2,215.30 into his nominated fund, within 14 days of the decision.
The Commissioner concluded: "I consider this level of compensation is appropriate, having regard to all the circumstances of the case."
The employer was directed on multiple occasions to participate in the proceedings but failed to appear at hearings on 23 September 2025 and 29 September 2025 or respond to correspondence from the FWC.
The FWC proceeded to determine the matter in the employer's absence based on the worker's evidence and material.
