s.394 - Unfair dismissal

• [1] On 7 July 2025, Mr Dean Underwood (Mr Underwood or the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act), alleging that he has been unfairly dismissed from his employment with Aushield Pty. Ltd. (the Respondent). Mr Underwood seeks compensation.

• [2] As the matter could not be resolved at conciliation, the matter was listed for a determinative conference which was held on 31 October 2025. Neither party sought permission to be represented by a lawyer or paid agent and both parties were self-represented at the determinative conference. Mr Underwood gave evidence on his own behalf. Mr Steven Boyd (General Manager), Mrs Rebecca Boyd (Business Manager), Mr Oisin Donnelly (Operations Manager), and Mr Jayden Needham (Workshop Supervisor) gave evidence on behalf of the Respondent. Mr Donnelly was not available for examination at the determinative conference, however, Mr Underwood confirmed he did not require Mr Donnelly for questioning and did not dispute his evidence. Mr Underwood filed submissions in the Commission on 19 September and 8 October 2025. The Respondent filed submissions in the Commission on 26 September 2025.

• [3] It is not in dispute that Mr Underwood was dismissed at the initiative of the Respondent. Mr Underwood is a person protected from unfair dismissal as his employment was covered by the Manufacturing and Associated Industries and Occupations Award 2020. Mr Underwood filed his application within the 21-day time period as required by the Act. Mr Underwood's dismissal was not a case of genuine redundancy. The Small Business Fair Dismissal Code (SBFDC) did not apply to the termination of Mr Underwood's employment as the Respondent employed more than 14 employees at the time of the dismissal.

• [4] The Respondent submits that there was a valid reason for the termination of Mr Underwood's employment, that being that Mr Underwood had failed to attend work for an extended period and failed to communicate his absence from work to the Respondent. The Respondent formed the view that Mr Underwood had abandoned his employment and therefore made the decision to terminate his employment.

• [5] The Respondent confirmed that Mr Underwood's attendance had been a concern for some time and provided evidence in the form of a performance improvement plan (PIP) which had been provided to Mr Underwood on 28 January 2025. A required outcome of the PIP was a "significant improvement in attendance rates at work".

• [6] From the payroll data provided by the Respondent, Mr Underwood's attendance, starting from May 2025, declined significantly. In the month of May 2025, Mr Underwood had six (6) days of unpaid leave out of twenty-two (22) working days.

• [7] From the text message evidence provided by the parties, Mr Underwood was in contact with his supervisor (Mr Needham) via text message between Wednesday 4 June and Monday 9 June 2025. The text messages from Mr Underwood to Mr Needham stated that he was unwell and would not be attending work on Wednesday 4 June 2025. Mr Underwood sent similar text messages on Thursday 5 and Friday 6 June 2025.

• [8] On Monday 9 June 2025, Mr Underwood sent a text message confirming that he was still unwell and that he would return on Wednesday 11 June 2025. Mr Underwood confirmed that he was planning to speak to Mr Boyd upon his return on 11 June 2025. Mr Underwood did not return to work on 11 June 2025 and did not respond to the communicate from the Respondent after this period.

• [9] After Mr Underwood failed to return to work on 11 June 2025, as he had indicated to Mr Needham via text message, the Respondent formed the opinion that Mr Underwood was abandoning his employment and that he was unlikely to return to work.

• [10] The Respondent sent an email to Mr Underwood, on 12 June 2025; this email was sent to Mr Underwood's private email address which was used for other work-related communication purposes such as issuing pay slips. The letter emailed to Mr Underwood confirmed that the Respondent was concerned about Mr Underwood's failure to attend work or provide an update in relation to his return to work, invited Mr Underwood to make contact with the Respondent in relation to his absence from the workplace, and confirmed that if Mr Underwood did not contact the Respondent by 16 June 2025 his employment would be terminated for abandonment.

• [11] After Mr Underwood failed to contact the Respondent by Monday 16 June 2025 as instructed, the Respondent decided to terminate Mr Underwood's employment on Tuesday 17 June 2025.

• [12] Mr Underwood submits that there was no valid reason for the termination as he had not abandoned his employment with the Respondent.

• [13] Furthermore, Mr Underwood outlines that, at the time of his dismissal, he had been suffering from significant mental health and personal health issues which impacted his ability to communicate with the Respondent. Mr Underwood provided four (4) medical certificates; however, these medical certificates relate to earlier absences from the workplace, not the period in question surrounding the dismissal.

• [14] Mr Underwood submits that the Respondent did not take adequate action to notify him that his employment was at risk of termination. Mr Underwood stated that he did not see the email until the morning of Monday 16 June 2025 and, upon seeing the email, he decided that his employment must be terminated as he had not contacted the Respondent by this date. Mr Underwood stated that, upon seeing this email, his mental health suffered, and he did not contact the Respondent.

• [15] I have determined that there was a valid reason for the termination of Mr Underwood's employment the Respondent (s387(a) of the Act). My reasons are as follows. Mr Underwood's conduct in the lead up to his dismissal was that he failed to attend work or communicate with his employer that he was unable to attend work. The Respondent is not a large business, and it is a fair and reasonable conclusion that the continued absence and lack of communication from Mr Underwood about his intention to return to work impacted the Respondent's operation. Whilst I appreciate that Mr Underwood was suffering from mental health issues and other personal medical issues in the lead up to his termination, that does not mean that Mr Underwood could simply stop engaging with his employer about his attendance at the workplace without expecting potentially negative outcomes for his employment. Mr Underwood was employed to work with the Respondent from Monday to Friday and his repeated conduct of failing to attend work without notification from Wednesday 11 June 2026 until Monday 16 June 2026, while further failing to provide a response to its letter regarding the issue, constituted a valid reason for the Respondent to terminate his employment.

• [16] Mr Underwood submits that his dismissal lacked procedural fairness. The Respondent submits that, on 12 June 2025, an email was sent to Mr Underwood outlining that his employment was at risk and directing him to make contact by Monday 16 June 2025 or else his employment would be terminated for abandonment. Mr Underwood asserts that the Respondent should have taken additional steps to ensure he was aware that his employment with the Respondent was at risk of termination. The Respondent provided Mr Underwood with two full business days in addition to the weekend to reply; however, Mr Underwood did not contact the Respondent. It is also acknowledged and accepted that an email to an employee's personal email address (especially one used for common communication such as issuing payslips), is a reasonable attempt by an employer to notify an employee that their employment is at risk.[1] I accept that Mr Underwood is frustrated and upset that the Respondent did not make more of an effort to ensure he was aware that his employment was at risk. However, I am satisfied that the Respondent took adequate steps in emailing Mr Underwood informing him that his employment was at risk of termination and providing him with an opportunity to respond prior to a final decision being made (ss387(b) - (c) of the Act). From the evidence provided by Mr Boyd, I believe that had Mr Underwood communicated with the Respondent about his need for additional unpaid leave from the business the Respondent would have provided Mr Underwood with additional time off.

• [17] There is no evidence to suggest that Mr Underwood was unreasonably refused a support person (s387(d) of the Act). The Respondent notes that it did have concerns about Mr Underwood's performance at work and that it previously placed Mr Underwood on a PIP. However, as the dismissal of Mr Underwood did not relate to his performance, I consider this to be a neutral consideration (s387(e) of the Act).

• [18] The Respondent is not a small business for the purpose of the Act; however, the Respondent is not a large business that has the resources of specialist internal human resources management or industrial relations support. In her evidence before the Commission, Mrs Boyd confirmed that, in her position as Business Manager, she is required to wear many hats and, as a result, was the default person who managed workplace relations matters. From the evidence before the Commission, Mrs Boyd and the Respondent, whilst not being a large employer, have put considerable effort into ensuring workplace relations matters are responsibly recorded and managed by the business. From the evidence before the Commission, I do not consider that the lack of a dedicated human resources management professional or the small size of the employer played a significant part in the reason for termination or caused any issues with the process followed (ss387(f) - (g) of the Act).

• [19] I have considered any other relevant matters raised by the parties, including the Applicant's submissions and testimony regarding his personal circumstances and difficulties at the time of his dismissal (s387(h) of the Act).

• [20] Having considered the matters in section 387 of the Act, I have determined that the dismissal of Mr Underwood was not harsh, unjust, or unreasonable. It was therefore not unfair.

• [21] Accordingly, the application is dismissed, an Order to that effect is issued.[2]

[1] [2016] FWCFB 5500, at [50].

[2] [PR793600].

Printed by authority of the Commonwealth Government Printer