Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for relief from unfair dismissal - alleged abandonment of employment - finding of summary dismissal - summary dismissal consistent with Small Business Fair Dismissal Code - application dismissed

[1] Ken O'Rourke operates the Enterprise Collision Centre smash repairs business at Tweed Heads in Northern New South Wales as a sole trader as the Trustee for the O'Rourke Investment Trust (Enterprise). Hunter Bowen commenced employment with Enterprise as an apprentice panel beater on 13 July 2021. There is no dispute that Mr Bowen took annual leave to travel to Canada to visit a relative from around 26 August 2025 to 16 September 2025. Mr Bowen alleges he also had approval from Enterprise to take unpaid leave from around 16 September 2025 to 9 October 2025. That is denied by Enterprise. Mr Bowen attended Enterprise's premises on 13 October 2025. Mr Bowen was advised that he was no longer employed by Enterprise because he had abandoned his job. Mr Bowen filed an unfair dismissal application on 17 October 2025. This decision concerns whether Mr Bowen was unfairly dismissed by Enterprise.

[2] I conducted a hearing via video on 4 March 2026. I refused permission for Mr Bowen to be represented by a paid agent at the hearing. My reasons for that decision are set out in an email that was sent to the parties on 25 February 2026. Mr Bowen represented himself at the hearing and relied on his own witness statement. Mr O'Rourke represented Enterprise at the hearing. Enterprise relied on evidence from Mr O'Rourke, Brenton Benard (Manager), Brock Guy (Panel Beater), Caleb Rigney (Apprentice Panel Beater), Brock Keegan (Spray Painter), Terry Hughes (Tradesman Panel Beater), and Mathew Claridge (Panel Beater).

[3] Under s.396 of the Fair Work Act 2009 (FW Act), the Commission is obliged to decide the following matters before considering the merits of an unfair dismissal application:

(a) whether the application was made within the period required in subsection 394(2).

(b) whether the person was protected from unfair dismissal.

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code (SBFDC).

(d) whether the dismissal was a case of genuine redundancy.

[4] There is no dispute, and I find, for the purposes of s.396 of the FW Act that:

• Mr Bowen's application was filed within 21 days of when his dismissal took effect.
• Mr Bowen was a person protected from unfair dismissal.
• Mr Bowen's dismissal was not a case of genuine redundancy.

[5] Enterprise did not argue that Mr Bowen's dismissal was consistent with the SBFDC. However, there does not appear to be any dispute that Enterprise had less than 15 employees when Mr Bowen was dismissed. Mr Bowen indicated in his unfair dismissal application that Enterprise had between 1 to 14 employees. Enterprise indicated in its employer response form that it had eight employees when Mr Bowen was dismissed. That means Enterprise was a small business employer when Mr Bowen was dismissed and I am required by s.396 of the FW Act to decide whether Mr Bowen's dismissal was consistent with the SBFDC before I consider the merits of the application.

[6] Enterprise has suggested that Mr Bowen abandoned his employment and that he was not dismissed by Enterprise. I reject that argument. I do not consider either party communicated an end to the employment relationship until 13 October 2025. Mr Bowen attended for work on 13 October 2025 and was told by Mr O'Rourke that he was no longer employed by Enterprise because he had not attended for work since 16 September 2025 without explanation. I consider Mr Bowen was summarily dismissed by Enterprise on 13 October 2025 because of an alleged unauthorised absence from work.

[7] Mr Bowen provided evidence that Enterprise approved his absence from work from around 26 August 2025 to 9 October 2025 so he could travel to Canada to spend time with his dying aunt. Mr Bowen provided evidence that he attended a meeting with Mr O'Rourke and Mr Benard where he provided a copy of his travel itinerary which showed him returning to work after 9 October 2025. Mr Bowen's evidence is that Mr O'Rourke and Mr Benard were aware of the duration of his overseas trip and approved the taking of annual leave for three weeks and then unpaid leave for the remainder of the trip.

[8] Enterprise's witnesses provided a vastly different version of events. Mr O'Rourke and Mr Benard stated that Mr Bowen and Mr Rigney were called into the office for a meeting to discuss Mr Bowen's leave request in the morning on around 13 August 2025. The meeting arose after Mr Bowen approached Mr O'Rourke the day before to request a period of leave around the time that Mr Rigney had already booked leave. Mr O'Rourke, Mr Benard, and Mr Rigney all gave evidence that it was agreed that Mr Bowen would take leave from around 26 August 2025 until 16 September 2025, which was the day before Mr Rigney's period of leave was due to commence. Mr O'Rourke and Mr Rigney provided evidence the business is short staffed and having two employees take leave at the same time creates operational issues. Mr Hughes also provided evidence during the hearing that he was standing at the door of the office and heard the conversation. Mr Hughes' account of the conversation is consistent with that provided by Mr O'Rourke, Mr Benard, and Mr Rigney. Mr Guy, Mr Keegan, and Mr Claridge also provided evidence that they had been told by Mr Bowen that he was taking leave for three weeks to travel to Canada.

[9] I accept Mr Bowen's argument that the evidence of Enterprise's witnesses must be considered in the context that they remain current employees of the business and have an interest in supporting Enterprise's case. I also consider Mr O'Rourke's evidence about wanting to help and support Mr Bowen was somewhat disingenuous given Mr O'Rourke's conduct towards Mr Bowen during the hearing. Mr O'Rourke was unnecessarily hostile and disrespectful towards Mr Bowen during the hearing.

[10] However, I do not consider I can accept Mr Bowen's evidence to the effect that he had approval to take unpaid leave from around 16 September 2025 to 9 October 2025 given the extent of contradictory evidence led by Enterprise. Mr Bowen cross-examined most of Enterprise's witnesses during the hearing and did not undermine the credibility of their evidence. Mr Bowen's recollection of the relevant discussions was also somewhat vague and limited. I do not consider I can reasonably prefer Mr Bowen's evidence given the consistent evidence provided by seven witnesses on behalf of Enterprise.

[11] After considering all the evidence, I find on the balance of probabilities that Mr Bowen received approval to take annual leave from around 26 August 2025 to 16 September 2025 and that this period of leave had been specifically approved by Mr O'Rourke and Mr Benard so that Mr Bowen would return to work before Mr Rigney commenced his period of leave on around 17 September 2025. I am not satisfied that Mr O'Rourke and Mr Benard approved a period of unpaid leave for Mr Bowen from around 16 September 2025 to 9 October 2025. I do not consider the evidence demonstrates Mr Bowen ever discussed this extended period of leave with Mr O'Rourke and Mr Benard. I find Mr Bowen's absence from work from around 16 September 2025 to 9 October 2025 was an unauthorised absence.

[12] In Pinawin v Domingo [2012] FWAFB 1359; (2012) 219 IR 128 (Pinawin), a Full Bench of then Fair Work Australia stated the following concerning the test to be applied for summary dismissal under the Small Business Fair Dismissal Code at [29]:

"There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee's conduct was sufficiently serious to justify immediate dismissal.

Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held."

[13] I am satisfied that Mr O'Rourke held a belief on behalf of Enterprise that Mr Bowen's conduct in being absent from work without authorisation from around 16 September 2025 to 9 October 2025 was sufficiently serious to justify immediate dismissal. Mr O'Rourke believed that Mr Bowen had created significant operational problems for the business by failing to return to work on the agreed date without explanation for nearly four weeks. I consider the first step in relation to the test identified in Pinawin is satisfied.

[14] I am satisfied that Mr O'Rourke's belief on behalf of Enterprise that Mr Bowen's conduct was sufficiently serious to justify immediate dismissal was based on reasonable grounds. Mr Bowen has provided no evidence to show that he attempted to contact Enterprise to request a further period of unpaid leave after 16 September 2025. Mr Bowen failed to attend work without explanation for nearly four weeks in circumstances where Enterprise is short-staffed and Mr Bowen's period of leave had been specifically approved on the basis that he would be back at work when Mr Rigney's leave commenced. Mr O'Rourke contacted Mr Bowen's stepfather on 3 and 4 October 2025 to raise his concerns about Mr Bowen's unauthorised absence. Despite this, Mr Bowen did not attempt to contact Mr O'Rourke until he attended the workplace on 13 October 2025. I find the second step in relation to the test identified in Pinawin is satisfied.

[15] I find that Mr Bowen's summary dismissal was consistent with the SBFDC.

[16] Given I have found Mr Bowen's summary dismissal was consistent with the SBFDC, Mr Bowen cannot satisfy the definition of an unfair dismissal in s.385 of the FW Act and the merits of the application do not need to be considered.

[17] Mr Bowen's unfair dismissal application is dismissed.

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