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[2026] FWC 349
General information, not legal advice.
Fair Work Commission
2026-02-20
Original judgment source is linked above.
s.394 - Unfair dismissal
[4] The Small Business Fair Dismissal Code does not apply in this case. The dismissal was not a case of genuine redundancy. The question is whether I am satisfied that the dismissal was harsh, unjust or unreasonable. For the reasons that follow, I find the answer to be 'No'. The result is that Mr Subedi has not been unfairly dismissed.
[6] On Friday 20 June 2025, Mr Subedi had a phone call with his family who asked him to come home urgently to Nepal to assist with a property sale.
[7] On Sunday, 22 June 2025, Mr Subedi booked a one-way plane ticket to Nepal, for travel with his daughter on the morning of Tuesday, 24 June 2025.
[8] On Monday 23 June 2025, Mr Subedi attended for work. At some point during the shift, he told 'Bijay', who was usually in charge of rostering and leave approvals along with Mr Baloglow, that he needed to travel to Nepal for an emergency the following day. According to Mr Subedi, Bijay said, 'if it's an emergency, just go', and 'tell Sheena [Reid] (Operations Manager) and Chris [Baloglow] (Owner)'. Mr Subedi asked Bijay to print him out a leave application form.
[9] The leave application form is in three sections. The first section asks simply for the name of the employee. The second section deals with 'leave type'. Mr Subedi ticked 'Annual Leave' and did not tick 'Unpaid Leave'. He wrote the dates of his proposed leave as '24/06/2025' to '02/08/2025' and circled 'No' in response to the question 'Are there any public holidays to Pay?'. The third section of the form deals with 'Authorisation'. There is space for the employee to sign and to declare whether they have checked the balance of their leave. There is a separate space for the name and signature of the supervisor or manager approving the leave. This section was not signed by Mr Subedi or completed by anyone from CBC.
[10] At the bottom of the leave application form there is a note:
[11] After filling in the first two sections of the leave application form, Mr Subedi left it on the computer desk in the office. He did not follow what seems to be the agreed 'usual process' of pinning it to the adjacent notice board.
[12] Mr Subedi spoke to Ms Reid about midway through his shift. He said that he needed to take leave the following day because of an emergency at home, that he did not know how long it would be, but it could be up to 10 weeks. Ms Reid was unhappy and told Mr Subedi that she could not approve his leave because she could not cover it in time. Mr Subedi said he already had a ticket and it really was an emergency, Ms Reid replied by saying 'well you already have the ticket, what else can we do'.
[13] Mr Subedi saw Mr Baloglow on his way out the door at the end of his shift on 23 June 2025. By this time, Mr Baloglow had spoken to Ms Reid about Mr Subedi's travel plans. As Mr Subedi left, Mr Baloglow said 'goodbye'. He was unsure that he would see Mr Subedi again and assumed he had decided to quit.
[14] On 24 June 2025, Mr Subedi did not attend for work. CBC advertised for another Baker straight away. Mr Subedi travelled to Nepal as planned. When his family's property sale did not proceed, Mr Subedi booked return plane tickets to Australia on 7 July 2025 (for travel on 9 July 2025).
[15] On 2 July 2025, CBC made what would be its last payment of wages to Mr Subedi, including payment for Monday, 23 June 2025 and annual leave for the remainder of the week. This was not a 'final pay' in the sense of paying out Mr Subedi's employment entitlements, because Mr Subedi's payslip shows a small remaining unpaid balance of accrued annual leave. I accept Mr Baloglow's evidence that he didn't think Mr Subedi was coming back but did not know what was going to happen and decided to just leave it at the time.
[16] On 9 July 2025, Mr Subedi and his daughter left Nepal to travel back to Australia. They arrived in Sydney on 10 July 2025.
[17] On Thursday 17 July 2025 and then Friday, 18 July 2025, Mr Subedi contacted Ms Reid and Mr Baloglow respectively to say that he was able to start work from Monday, 21 July 2025. A separate message to 'Francois' asking about when Mr Subedi could start work prompted a response from Francois on 20 July 2025 to say that he didn't do the roster and to please talk to Mr Baloglow. Mr Baloglow responded to Mr Subedi's message of 18 July 2025 by saying there were things to discuss. A meeting was proposed for Tuesday 22 July 2025 but never confirmed by CBC. Neither party followed up in the absence of a response and Mr Subedi did not return to work.
[18] On 2 August 2025, Mr Subedi saw that his access to the roster group chat had been revoked and formed the view that he had been dismissed.
Was the dismissal harsh, unjust or unreasonable?
Was there a valid reason for the dismissal related to capacity or conduct, and was it notified to Mr Subedi?
[19] CBC's reason for dismissal was that Mr Subedi failed to show up or commence work. Mr Subedi says that his absence was approved annual leave. I find that the absence was not approved by CBC. Mr Subedi took leave on his own initiative for the trip he had booked the day before. He 'was going', whether the leave was approved or not.
[20] At the time of his leave request, Mr Subedi's leave balance was 27.85 hours. This was insufficient to cover a proposed leave period of 6 weeks. Without CBC's agreement, Mr Subedi was not entitled under the Award to take annual leave in advance. Although Mr Subedi says now that he was happy to take leave without pay, he did not apply for any unpaid leave on his leave application form.
[21] The evidence does not establish that the absence from work was approved. It is not enough, but also not correct, to say that Mr Subedi was not 'told no'. There was no approval from Bijay, who said 'if it's an emergency, just go', but also told Mr Subedi to tell Ms Reid and Mr Baloglow and gave Mr Subedi a copy of the leave application form. These actions put Mr Subedi on notice that the leave would need to be approved by either Ms Reid or Mr Baloglow, including because of the short notice of leave (less than one day) and the length of the proposed leave period (6 weeks).
[22] Ms Reid expressly refused the leave request because she could not cover it in time. There was no discussion with, or approval from, Mr Baloglow about Mr Subedi taking leave.
[23] I find that Mr Subedi's absence from work without approval from 24 June 2025 to 18 July 2025 was a valid reason for dismissal. The absence occurred in circumstances where Mr Subedi knew, or should have known, that he was not authorised to be absent from work for that period. A reasonable person in Mr Subedi's position would understand that this might have put his ongoing employment at risk. Even so, the reason was not expressly notified to Mr Subedi at the time he left work on 23 June 2025 (because no decision had yet been made) or on 2 August 2025, when Mr Subedi was dismissed by his removal from the WhatsApp roster group chat. The valid reason for dismissal in this case weighs against any finding of unfair dismissal, while the absence of express notice of the reason for dismissal weighs in favour of such a finding on procedural fairness grounds.
Was there an opportunity to respond to any capacity or conduct related reason?
[24] After he left work on 23 June 2025, Mr Subedi did not have an opportunity to respond to the reason for termination before his dismissal took effect on 2 August 2025. Although CBC had a reasonable basis for considering that Mr Subedi had abandoned his employment on and from 24 June 2025, it did not do so. It is relevant that the ability to communicate with Mr Subedi during this period was limited by the fact of his travel to another country for an unknown period of time. CBC was on notice by 17 July 2025 that Mr Subedi wanted to come back to work. It proposed a meeting with Mr Subedi that did not eventuate, mainly because Mr Baloglow did not respond to Mr Subedi with details of the meeting.
[25] Neither Mr Subedi nor CBC followed up with each other to discuss the matter after that time. It seems that each was waiting on the other to take the next step and neither did until eventually, CBC decided that Mr Subedi was not coming back and removed him from the roster. The loss of an opportunity to discuss the matter with Mr Baloglow before the dismissal decision was made weighs in favour of a finding of unfair dismissal.
Was there any unreasonable refusal to allow a support person to be present to assist at any discussions relating to dismissal?
[26] There was no refusal to allow a support person to be present in discussions about the dismissal.
Was Mr Subedi warned about relevant unsatisfactory performance?
[27] Mr Subedi had received prior warnings for performance issues and I reject his submission to the contrary. Mr Subedi had been admonished by Mr Baloglow about truancy, lateness and performance issues as recently as 4 June 2025. In response, Mr Subedi had explained that he had taken days off in the two weeks prior to care for his sick wife. This explanation appears to have both been accepted by Mr Baloglow at the time, but it is contradicted by medical certificates showing that his wife was unwell in the week of 2 to 6 June 2025 rather than in the two weeks prior. The medical certificates were not provided to Mr Baloglow during the course of the employment. The prior warnings in relation to leave without approval are relevant considerations and weigh against a finding of unfair dismissal.
Degree to which the size of the employer's business and any absence of dedicated human resources management specialists or expertise in the business would be likely to impact on procedures followed in effecting the dismissal
[28] Although CBC is not a small business employer, it had only 16 employees at the time of dismissal. As a small bakery, its activities appear heavily weighted to operational rather than administrative matters. There is no evidence of dedicated human resources management specialists or expertise of this kind in the business. I consider that each of these features contributed to a significant degree to the lack of formal procedure followed by CBC in relation to the dismissal. This weighs against a finding of unfair dismissal.
[29] Mr Subedi says the dismissal was unfair because he was not provided with any notice, reason or opportunity to respond. I have dealt with the issues of notice, reason and opportunity above. Mr Subedi also says he was ready and willing to return to work early, and there was no misconduct or performance issue raised. The submission both ignores previous conduct and performance issues raised with Mr Subedi, and glosses over the circumstances of the dismissal, which were largely of Mr Subedi's own making. Simply put, Mr Subedi took leave to which he was not entitled, at very short notice, without CBC's agreement. His absence was unauthorised and put his ongoing employment at risk. Although it may be accepted that Mr Subedi was ready, willing and able to return to work by 21 July 2025, he was none of these things in the preceding period of one month, despite being employed on a full-time basis in a senior role in the business.
[30] When Mr Subedi told CBC he needed to travel to Nepal, he said this was necessary because there was an emergency. The evidence does not support the explanation. Mr Subedi's travel to Nepal was in connection with a property sale, and it is unclear why this would be considered an emergency.
[31] The message exchange between Mr Subedi and Mr Baloglow on 4 June 2025 indicates a relationship continuing but under strain. Mr Baloglow needed the work of Mr Subedi and others to be done but was frustrated at what he saw as constant truancy, lateness, product complaints, hygiene issues, and failure to meet production targets. He wrote that he could not 'operate a business like this' and said 'When you and your friends have decided you want to work let me know. I need to get reliable people in to make this business work'. In response, Mr Subedi said he did not understand what Mr Baloglow meant; that he had taken days off because his wife was seriously ill, that when he came to work he gave 100% but that Mr Baloglow did not seem happy. He said, 'if you really don't want us, we don't mind to quit the job, please let me know, I can start work from tomorrow or not?'. Mr Baloglow responded to say that he needed Mr Subedi and his 'guys' in, but wanted a serious talk because he was getting too many complaints. He also said he was truly sorry to hear about Mr Subedi's wife being ill and that family always came first, that he understood and encouraged that. These matters likely informed the conduct of the parties in connection with the end of the employment relationship.
[32] In this case, the valid reason for dismissal carries significant weight. There were shortfalls in the process giving effect to the dismissal, including the lack of communication from CBC about when to meet to discuss what had occurred, and about the decision to remove him from the roster. The procedural failings must be seen in light of circumstances that were largely of Mr Subedi's own making; that Mr Subedi had recently been told that Mr Baloglow was not happy about his attendance record; and in the context of CBC's relatively small, operationally demanding business that does not appear to have access to dedicated human resources management specialists or expertise.
[33] On balance, I am not satisfied that the dismissal was harsh, unjust or unreasonable. It follows that Mr Subedi was not unfairly dismissed.
[1] Subedi v Crispy Bakehouse Co Pty Ltd [2025] FWC 3612
[3] Fair Work Act 2009 (Cth), s.385
Printed by authority of the Commonwealth Government Printer
Bishwash Subedi
Crispy Bakehouse Co Pty Ltd [2026] FWC 349