Fair Work Act 2009

s.394 - Unfair dismissal

Application for relief from unfair dismissal - valid reason related to ongoing incapacity - lack of procedural fairness - absence of suitable remedy - dismissal not unfair - application dismissed.

• [1] Jessica Wei commenced full-time employment with Echo Group Corporation Pty Ltd (Echo Group) on 1 February 2024 as a Service, Warranty & Maintenance Coordinator. Echo Group is a wholly owned subsidiary of EnergyAustralia. Echo Group creates smart integrated solar system and battery storage solutions for commercial and residential customers. Ms Wei became unfit for work on around 5 September 2024 due to mental health conditions. Ms Wei exhausted her paid leave entitlements on around 1 October 2024 and then commenced a period of unpaid leave. Ms Wei's employment was terminated by Echo Group on 3 February 2025 on the basis that she was not fit to perform the inherent requirements of her role. Ms Wei filed an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (FW Act) on 24 February 2025.

• [2] Ms Wei's unfair dismissal application was heard via video on 23 June 2025. A schedule of the material relied on by the parties is attached at the end of this decision. I have considered all the evidence and submissions.

• [3] There is no significant dispute between the parties about the following critical factual matters:

1. Ms Wei was an efficient and productive employee who played an important role in reducing the number of outstanding tickets for Echo Group during the first half of 2024.
2. Ms Wei and Toby Pilton (Service, Warranty & Maintenance Coordinator) had a disagreement on 4 September 2024. Ms Wei was upset that Mr Pilton had contacted a customer that Ms Wei had previously been dealing with. Ms Wei was concerned about the advice Mr Pilton had provided to the customer.

• iii. Ms Wei has been unfit for her full duties since at least 26 September 2024.[1] Ms Wei was certified fit to work one day per week by Dr Rugara on 18 December 2024 and 21 January 2025, however that was subject to Ms Wei having no contact with David Fitzsimons (Field Operations & Metering Leader).[2] Echo Group could not accommodate those restrictions.
• iv. Ms Wei remained unfit for work until at least 5 May 2025.[3]

1. Echo Group did not provide Ms Wei with notice that her employment may be terminated prior to sending her the termination letter on 3 February 2025.

Initial matters - uncontested provisional views

• [4] Under s.396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the 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 SBFDC;

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

• [5] Ms Wei's unfair dismissal application was filed on 24 February 2025, which was within 21 days of her employment ending on 3 February 2025.

Was Ms Wei a person protected from unfair dismissal?

• [6] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high-income threshold.

• [7] Echo Group employed around 55 employees when Ms Wei was dismissed on 3 February 2025. That means Echo Group is a non-small business employer and that the minimum employment for Ms Wei was six months. There is no dispute that Ms Wei had completed that period of employment with Echo Group when she was dismissed.

• [8] Echo Group accepts Ms Wei's employment was covered by the Electrical Power Industry Award 2020. Ms Wei's earnings were also below the high-income threshold.

• [9] I find Ms Wei was a person protected from unfair dismissal when her employment ended on 3 February 2025.

• [10] The Small Business Fair Dismissal Code is not relevant because Echo Group was not a small business employer when Ms Wei was dismissed.

• [11] Echo Group did not argue that Ms Wei's employment ended by reason of genuine redundancy. I find Ms Wei's employment did not end due to a genuine redundancy.

• [12] Given my findings above in relation to the initial matters, I am required to consider the merits of Ms Wei's unfair dismissal application.

• [13] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

• [14] I am required to consider each of these factors, to the extent they are relevant to the factual circumstances before me.[4]

Was there a valid reason for dismissal related to Ms Wei's capacity or conduct?

• [15] In order to be a valid reason, the reason for the dismissal should be "sound, defensible or well founded"[5] and should not be "capricious, fanciful, spiteful or prejudiced."[6] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[7]

• [16] A reason will be "related to capacity" where the reason is associated or connected with the ability of the employee to do his or her job.[8] It is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position.[9] The reference to "inherent" requirements invites attention as to what the characteristic or essential requirements of the employment are, as opposed to those requirements that might be described as peripheral.[10]

• [17] A Full Bench has previously found, "[w]hen an employee is absent because of an incapacity to perform duties, a question of timing arises. The FW Act precludes a termination for a temporary absence of up to 3 months. If an absence extends beyond that period, it becomes a question of whether there is likely to be a return to duties in the short or medium term. Usually updated medical advice will be important to that consideration. Indeed, that medical information could have a bearing on the adequacy of the reason for termination."[11]

• [18] I find there was a valid reason for Ms Wei's dismissal related to her capacity. Ms Wei was unfit to perform her regular role for around five months and there was no realistic prospect of Ms Wei returning to her substantive position or role when Echo Group dismissed her on 3 February 2025.

• [19] This factor weighs in favour of finding that Ms Wei's dismissal was not harsh, unjust, or unreasonable.

• [20] Proper consideration of s.387(b) requires a finding to be made as to whether Ms Wei "was notified of that reason". Contextually, the reference to "that reason" is the valid reason found to exist under s.387(a).[12]

• [21] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[13] and in explicit[14] and plain and clear terms.[15]

• [22] Ms Wei was not notified of the reason for dismissal before she received her termination letter on 3 February 2025. I accept Echo Group was presented with a difficult situation given Ms Wei's mental health conditions and reluctance to attend meetings. However, I see no reason why Echo Group could not have notified Ms Wei in writing that it was intending to end her employment and provided Ms Wei with a period to respond before finalising its decision.

• [23] This factor weighs in favour of finding Ms Wei's dismissal was unjust and unreasonable.

Was Ms Wei given an opportunity to respond to the valid reason?

• [24] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee's employment.[16]

• [25] The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly.[17] Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[18]

• [26] Ms Wei was not provided with an opportunity to respond to the reason for dismissal before she received her termination letter on 3 February 2025. For the reasons identified above, I consider Echo Group could have provided Ms Wei with an opportunity to respond to the reason for dismissal despite Ms Wei being unfit for work.

• [27] This factor weighs in favour of finding that Ms Wei's dismissal was unjust and unreasonable.

Did Echo Group unreasonably refuse to allow Ms Wei to have a support person present to assist at discussions relating to the dismissal?

• [28] This is a neutral factor given there were no discussions relating to the dismissal before it was communicated to Ms Wei on 3 February 2025.

Was Ms Wei warned about unsatisfactory performance before the dismissal?

• [29] Ms Wei was not formally warned about any performance issues prior to being dismissed on 3 February 2025. Mr Fitzsimons referred to raising concerns about Ms Wei's communication style during a mid-year review in 2024. However, I do not consider that constitutes a warning about unsatisfactory performance. This is a neutral factor.

To what degree would the size of Echo Group's enterprise be likely to impact on the procedures followed in effecting the dismissal?

• [30] Echo Group is a reasonably small business, but it is a wholly owned associated entity of EnergyAustralia, which is obviously a very large business. In the circumstances, I do not accept the size of Echo Group impacted on the procedures that were followed in effecting Ms Wei's dismissal. This is a neutral factor.

To what degree would the absence of dedicated human resource management specialists or expertise in Echo Group's enterprise be likely to impact on the procedures followed in effecting the dismissal?

• [31] Echo Group has dedicated human resource specialists and expertise. This is a neutral factor.

• [32] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

• [33] Neither party argued there were any other relevant factors that should be considered. I find there are not any other relevant matters.

• [34] I have made findings in relation to each matter specified in s.387 of the FW Act. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable.[19]

• [35] This is an unfortunate case. Ms Wei is clearly a very hardworking, proud, and dedicated person. Ms Wei was passionate about her role with Echo Group and particularly about work being performed more efficiently. Ms Wei's relationship with Echo Group deteriorated dramatically following her disagreement with Mr Pilton on 4 September 2024. Ms Wei developed serious mental health conditions which are still not fully resolved. Echo Group has raised concerns with Ms Wei's conduct and performance in defending these proceedings, because it is understandably concerned about Ms Wei's request to be reinstated. The raising of these matters has been upsetting for Ms Wei in circumstances where she is already struggling with serious mental health issues.

• [36] After taking account of the matters identified in s.387 of the FW Act, I find that Ms Wei's dismissal was not harsh, unjust, or unreasonable. There was a valid reason for Ms Wei's dismissal related to her capacity. I consider this factor weighs strongly against finding that Ms Wei was unfairly dismissed. Although Ms Wei's dismissal was procedurally unfair, procedural defects do not mean a dismissal will be unfair in every case. I accept Echo Group's submission that the affording of procedural fairness would have been extremely unlikely to alter the ultimate decision to dismiss Ms Wei. Ms Wei could not have provided medical evidence that she was fit to return to her substantive role with Echo Group because she clearly was not. Ms Wei remains unfit for work in mid-2025. Even Dr Pokharel, who indicated in a report dated 4 March 2025 that returning to work may be therapeutic for Ms Wei, expressed concern that "working at the pre-injury workplace could be detrimental to [Ms Wei's] mental health."[20]

• [37] Even if I had found that Ms Wei was unfairly dismissed, I am not satisfied that I could have awarded a remedy to Ms Wei. I consider reinstatement is completely inappropriate in this case. I am not satisfied it would be safe for Ms Wei to resume working for Echo Group in any role. The medical evidence suggests returning to work with Echo Group would be likely to jeopardise Ms Wei's recovery. It has been clear during this case that dealing with Echo Group creates stress and anxiety for Ms Wei. I would not order that Ms Wei return to working for Echo Group in those circumstances. Ms Wei also consistently maintained that she does not seek compensation in lieu of reinstatement. Ms Wei resisted the issuing of production orders sought by Echo Group concerning her income since dismissal on the ground that she is expressly not seeking compensation. I would be highly unlikely to conclude it is appropriate to make a compensation order in favour a person that does not wish to be compensated.

• [38] I find that Ms Wei's dismissal was not harsh, unjust, or unreasonable and that Ms Wei was not unfairly dismissed.

• [39] I order that Ms Wei's application is dismissed.

A WorkSafe Victoria certificate dated 28 January 2025.

A series of documents regarding Ms Wei's attempts to find other employment.

Various emails between Ms Wei and Echo Group representatives.

An Independent Medical Examination report from Dr Pokharel dated 5 November 2024.

An Independent Medical Examination report from Dr Pokharel dated 4 March 2025.

R1 Witness statement from Paul Watmough (General Manager - EA Solar) dated 6 June 2025 and attachments.

R2 Witness statement from David Fitzsimons (Field Operations & Metering Leader) dated 6 June 2025 and attachments.

R3 Witness statement from Toby Pilton (Service, Warranty & Maintenance Coordinator) dated 6 June 2025.

R4 Oral evidence from Aderinsola Onikoyi (Injury Management & WorkCover Specialist) during the hearing on 23 June 2025.

Ms Wei provided written submissions filed on 20 May 2025 and 16 June 2025.

Ms Wei provided oral closing submissions at the end of the hearing.

Echo Group provided written submissions filed on 6 June 2025.

Mr Henley provided oral closing submissions at the end of the hearing.

[1] Exhibit R1, Attachment PW-3, DHB page 314 to 323.

[2] Exhibit R1, Attachment PW-3, DHB page 314 to 323.

[3] Services Australia Medical Certificate Information filed by Ms Wei, DHB page 69.

[4] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[5] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373.

[7] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, 685.

[8] Crozier v Australian Industrial Relations Commission [2001] FCA 1031, [14].

[9] J Boag & Son Brewing Pty Ltd v Button [2010] FWAFB 4022, [22].

[10] X v Commonwealth [1999] HCA 63, [102].

[11] Shortland v Smiths Snackfood Co [2011] FWAFB 2303, [19].

[12] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

[13] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

[14] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

[16] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

[17] RMIT v Asher [2010] FWAFB 1200; (2010) 194 IR 1, 14-15.

[18] Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1, 7.

[19] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].

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