Employer contacted worker to confirm whether he abandoned his employment during leave
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application from a worker who was employed as a driver.
The worker was employed from 30 August 2023 until 1 July 2025. On 18 July 2025, the worker applied in time for an unfair dismissal remedy under section 394 of the Fair Work Act 2009.
The employer objected to the application on the basis that the dismissal was a case of genuine redundancy.
The questions were whether the dismissal was a case of genuine redundancy, and if not, whether the dismissal was harsh, unjust or unreasonable (such that the worker was unfairly dismissed).
Limited evidence and conflicting allegations
No submissions or witness statements had been filed in support of the parties' respective cases.
The employer filed documents pertaining to the employment relationship, and it was established that, relevantly, the worker was employed as a casual delivery driver on 30 August 2023 under the General Retail Industry Award 2020.
The worker's employment was converted to full-time on 11 March 2024. The worker was paid $32.00 per hour plus superannuation.
The employer dismissed the worker on the grounds of redundancy on 1 August 2025.
Following the termination of his employment, the worker was paid 4 weeks' redundancy pay and 2 weeks' wages in lieu of notice on termination, as well as accrued annual leave.
The only document filed in support of the worker's case was his application. It was alleged that the redundancy was not a genuine redundancy due to a lack of consultation and a lack of any genuine attempt to redeploy him.
It asserted that the work the worker performed was still required to be done.
Some of the facts stated in the application appeared to be incorrect, such as start and finish dates and the period of continuous service.
The application was unreliable as an evidentiary source.
An attachment to the application form alleged that the worker took a week of leave from work due to the funeral of his former mother-in-law; that this leave was approved; that the employer subsequently contacted him to advise of its belief that he had abandoned his employment; and that upon his return to work, he was called into a meeting and handed a letter of termination.
The response form filed by the employer sought to contradict these allegations by asserting that following a review of operational requirements, the worker's role was determined to be no longer required on a full-time basis; that no suitable alternative position was available at the time; and that consultation was undertaken in compliance with the Award.
Genuine redundancy not established
The FWC examined whether the dismissal was a case of genuine redundancy. Section 389 of the Act provided the meaning of 'genuine redundancy'.
A person's dismissal would be a case of genuine redundancy if their employer no longer required their job to be performed by anyone because of changes in the operational requirements of the employer's enterprise, and the employer complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
The relevant clause of the Award dealt with consultation about major workplace changes in the workplace that were likely to have significant effects on employees.
There was a question in this case about whether the clause applied to the redundancy of the worker, if his role was the only one that was affected by the asserted review of operational requirements.
The Commissioner stated: "The difficulty is that no submissions were made on the issue, and there is no evidence other than the Employment Separation Certificate to confirm facts of relevance to [the worker's] redundancy. Even that certificate appears to be affected by error as it provides for a termination date of 15 August 2025, which I assume (without finding) reflects the end of the fortnight after termination of employment, during which [the worker's] employment entitlements were paid."
The Commissioner stated: "In the absence of evidence about the circumstances leading to the decision to make [the worker's] position redundant, or the process to give effect to that decision, I am not satisfied that the dismissal was a case of 'genuine redundancy'."
Unfair dismissal not established
The FWC examined whether the dismissal was harsh, unjust or unreasonable. Section 387 of the Act required the Commission to take into account certain matters in considering whether it was satisfied that a dismissal was harsh, unjust or unreasonable.
The Commissioner stated: "There is no evidence to satisfy me as to whether there was a valid reason for dismissal. A reference was made from the bar table about [the worker] taking a lot of leave during his employment. Leave records and payslips were filed by [the employer] in response to the application. Without submissions or a witness statement to explain the relevance of these documents to the application for an unfair dismissal remedy, I am not satisfied that they are relevant to the dismissal."
There was no evidence about whether the worker was given an opportunity to respond to any such capacity or conduct-related reason, if indeed one existed. There was no evidence of any request for, or refusal of, the participation of a support person in discussions about the dismissal.
There was no evidence of warnings about unsatisfactory performance. The assertion in its response to the application from the employer was that the redundancy decision was not related to performance or conduct.
The employer was a business of reasonable size. There was no evidence that either its size or access to human resources management specialists or expertise was a material factor in the procedures followed to give effect to the dismissal.
Regarding other potentially relevant matters, the worker asserted that he was 52 years old at the time of dismissal. His length of service was less than 2 years.
The attachment to the application alleged dismissal in connection with the taking of approved leave while indicating the existence of a dispute about whether the leave was, in fact, approved.
The Commissioner stated: "These matters would be relevant to the merits of the case if there were evidence to support them, as would the potential availability of an inference that termination was for reasons other than redundancy."
The Commissioner stated: "In other words, there is no evidence about the circumstances of the dismissal or the processes to give effect to the dismissal. In the circumstances, I am unable to be satisfied that the dismissal was harsh, unjust or unreasonable. It follows that no finding of unfair dismissal can be made."
The jurisdictional objection on the grounds of genuine redundancy was dismissed. The application was rejected.
