s.394 - Application for unfair dismissal remedy

Application for relief from unfair dismissal - dismissal due to ongoing incapacity - valid reason - procedural fairness provided - personal factors suggest dismissal harsh - dismissal not unfair - application dismissed

[1] Amit Dhamija was employed by MH Management (QLD) Pty Ltd (Minor Hotels) from 16 January 2016 to 4 September 2025 in the full-time position of House Keeping Manager at the Oaks Calypso Plaza, which is located on the Gold Coast in Queensland. Mr Dhamija had previously worked at the same venue as an independent contractor since 2009. Mr Dhamija was diagnosed with cancer in June 2024 and did not work for Minor Hotels since that time. Mr Dhamija was dismissed by Minor Hotels on 4 September 2025 due to his medical incapacity. Mr Dhamija has filed an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (FW Act). This decision concerns whether Mr Dhamija was unfairly dismissed by Minor Hotels and, if required, what remedy should be awarded.

[2] Mr Dhamija provided evidence in support of his application. Minor Hotels relied on evidence from Bec Smith (People & Culture Advisor). I conducted a hearing via video on 23 February 2026.

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

• • Although Mr Dhamija's application was filed more than 21 days after his dismissal took effect, the application was filed within a further period that I have previously allowed under s.394(2)(b) of the FW Act.[1]

• Mr Dhamija was a person protected from unfair dismissal.
  • The Small Business Fair Dismissal Code is not relevant because Minor Hotels is not a small business.
• Mr Dhamija's dismissal was not a case of genuine redundancy.

[4] 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.

• [5] I am required to consider each of these factors, to the extent they are relevant to the factual circumstances before me.[2]

Was there a valid reason for dismissal related to Mr Dhamija's capacity or conduct?

• [6] In order to be a valid reason, the reason for the dismissal should be "sound, defensible or well founded"[3] and should not be "capricious, fanciful, spiteful or prejudiced."[4] 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.[5]

• [7] 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.[6] It is the substantive position or role of the employee that must be considered and not some modified, restricted duties, or temporary alternative position.[7] The reference to "inherent" requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral.[8]

• [8] 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."[9]

[9] Mr Dhamija was unfit from work from June 2024 until his dismissal on 4 September 2025 due to a non-work-related illness. Mr Dhamija was certified fit to perform modified duties for a brief period from 4 August 2025, but Minor Hotels indicated it could not accommodate Mr Dhamija's restrictions. In any event, Mr Dhamija's condition deteriorated shortly afterwards, and Mr Dhamija would not have been able to perform modified duties at the time of his dismissal. Mr Dhamija requested that Minor Hotels leave his role open until he returned to full fitness, hopefully in early-to-mid 2026, rather than terminating his employment.

[10] I find Mr Dhamija's incapacity to perform his full-time House Keeping Manager role from June 2024 until 4 September 2025 constituted a valid reason for dismissal. I also consider there was no certainty regarding when Mr Dhamija would be able to return to work when he was dismissed on 4 September 2025. I may have found there was not a valid reason for dismissal if the evidence suggested Mr Dhamija would likely be fit to resume work in the short-term. Unfortunately, that was not the case here.

[11] The existence of a valid reason for dismissal weighs in favour of finding Mr Dhamija's dismissal was not harsh, unjust, or unreasonable.

Was Mr Dhamija notified of the reason for dismissal?

• [12] Proper consideration of s.387(b) requires a finding to be made as to whether Mr Dhamija "was notified of that reason." Contextually, the reference to "that reason" is the valid reason found to exist under s.387(a).[10]

• [13] 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,[11] and in explicit[12] and plain and clear terms.[13]

[14] Mr Dhamija was issued with a show cause letter on 29 August 2025. The letter outlined Mr Dhamija's lengthy period of absence and indicated Minor Hotels did not consider it was able to continue to keep Mr Dhamija's role open due to staffing requirements. The show cause letter allowed Mr Dhamija to provide a response by 3 September 2025. Mr Dhamija provided a written response on 3 September 2025. Mr Dhamija met with Ms Smith and Kylie Tranent (People & Culture Advisor) on 4 September 2025 to discuss his response. A decision was made to dismiss Mr Dhamija at the end of the meeting.

[15] I find Mr Dhamija was notified of the reason for dismissal via the show cause letter dated 29 August 2025 and that a final decision to terminate Mr Dhamija's employment had not been made at that time. I find this factor weighs in favour of finding Mr Dhamija's dismissal was not harsh, unjust, or unreasonable.

Was Mr Dhamija given an opportunity to respond to the reason?

[16] 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.[14]

• [17] 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.[15] 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.[16]

[18] I find Mr Dhamija was provided with an opportunity to respond to the reason for dismissal in writing on 3 September 2025 and then verbally during a meeting on 4 September 2025. Those steps were taken before a final decision was made to terminate Mr Dhamija's employment. I find this factor weighs in favour of finding Mr Dhamija's dismissal was not harsh, unjust, or unreasonable.

Did Minor Hotels unreasonably refuse to allow Mr Dhamija to have a support person present to assist at discussions relating to the dismissal?

[19] Mr Dhamija was advised in the show cause letter dated 29 August 2025 that he could bring a support person to the meeting on 4 September 2025. Mr Dhamija declined that invitation. I find this is a neutral factor.

Was Mr Dhamija warned about unsatisfactory performance before the dismissal?

[20] Mr Dhamija was dismissed due to medical incapacity as opposed to unsatisfactory performance. I consider this to be a neutral factor.

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

[21] Minor Hotels is a large business. I consider that Minor Hotels followed appropriate procedures in relation to Mr Dhamija's dismissal. I consider this to be a neutral factor.

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

[22] Minor Hotels has dedicated human resource specialists and expertise. I consider that Minor Hotels followed appropriate procedures in relation to Mr Dhamija's dismissal. I consider this to be a neutral factor.

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

[24] I consider Mr Dhamija's extremely unfortunate personal circumstances are a matter that weighs in favour of finding his dismissal was harsh. Mr Dhamija's health issues are serious and ongoing.

[25] I consider Mr Dhamija's lengthy period of service for Minor Hotels weighs in favour of finding his dismissal was harsh.

[26] 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.[17]

[27] I find that Mr Dhamija's dismissal was not harsh, unjust, or unreasonable. I have found there was a valid reason for dismissal and that Minor Hotels provided procedural fairness in relation to the dismissal. There are other factors that weigh in favour of finding the dismissal was harsh. However, these factors will often be in existence where an employer makes the difficult decision to dismiss an employee with no performance or conduct issues because they have not been fit to perform their substantive role for a lengthy period. I do not consider the factors are sufficient to find that Mr Dhamija's dismissal was harsh for the purposes of the statutory test.

[28] I find that Mr Dhamija was not unfairly dismissed by Minor Hotels.

[29] I note Minor Hotels has "warmly invited" Mr Dhamija to reach out to them if his health improves in the future and that Minor Hotels "would be happy to explore any suitable opportunities that may be available at that time." Hopefully Mr Dhamija's health improves in the future, and he can take Minor Hotels up on this invitation.

[1] [2025] FWC 3552.

[2] 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].

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

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

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

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

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

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

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

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

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

[14] 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].

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

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

[17] 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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