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[77]
[2026] FWC 75
General information, not legal advice.
Fair Work Commission
2026-01-19
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Application for an unfair dismissal remedy; whether employee could perform the inherent requirements of the job; dismissal not harsh, unjust or unreasonable; application dismissed
[1] On 8 July 2025, Mr Jason Riley filed an application pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act) seeking a remedy in relation to unfair dismissal with respect to his former employer, Nuvei Australia Merchant Services Pty Ltd (Nuvei).
[2] Mr Riley's employment was terminated on 19 June 2025 after an absence from work which commenced on 7 March 2024. After what was described as a "show cause process", Nuvei decided there was no indication of Mr Riley's capacity to perform work changing or of there being any reasonable prospect of him returning to work or when he may have capacity to return to work in the foreseeable future.
[3] It was necessary to mention the matter several times, in order to engage with parties about the efficient conduct of the matter. During these mention hearings, I spent some time engaging with Mr Riley as to questions he had about the nature of the written material he was Directed to file in the matter. In some of these exchanges, I took the opportunity to remind Mr Riley that any medical information he has to support assertions he makes of that kind should be filed and served with his written material, particularly taking into account the nature of the matter as it had begun to emerge from the materials as they were filed.
[4] I conducted a hearing to determine the matter on 27 November 2025, and Mr Riley appeared for himself and gave evidence, as did Ms Sleiman and Mr Kawtal for the Respondent. Mr Singh appeared for Nuvei.
[6] Mr Riley made the point several times during the course of the proceeding that he has spent a significant period of time and gone to great lengths to prepare his unfair dismissal case. It is appropriate to acknowledge Mr Riley's efforts in this regard. I have digested all of the material filed by the parties in this matter - not all of it is referred to in this decision - but I have had regard to all of it. What follows is a summary of the salient evidence - the brevity of this summary should not be read by the parties as undervaluing the efforts they put into the presentation of their case. The Commission's job is however to focus on those aspects of the materials that are relevant to the questions necessary to determine the application and to explain its reasons for decision focusing on those relevant aspects of the matter.
[7] Mr Riley was employed by Nuvei on 6 September 2022 as am Account Manager. At this time, his employing entity was known as "Till Payments Solutions Pty Ltd" which was later renamed Nuvei Australia Merchant Services Pty Ltd (and is therefore referred to throughout decision generically as Nuvei). When he was hired, Mr Riley disclosed to Mr Daher, then a senior manager at Nuvei, that he had suffered from burnout at his previous employer and had dealt with mental health challenges.
[8] In about July 2023, Mr Riley moved from a role described as an Account Manager to an Account Executive. Both are sales roles, but an Account Manager is devoted to the maintenance of existing clients of the business, and an Account Executive works to grow the business, according to targets and other accountabilities, and is an important role to the success of the business. It is a role that involves a higher level of pressure than an Account Manager.
[9] Thus, when Mr Riley took on this role in July 2023, while having disclosed to Mr Daher when he started employment the previous year that he had dealt with some mental health challenges arising from his previous employment, the indications were that Mr Riley was capable of taking on the increased pressure associated with the Account Executive role.
[10] However, Mr Riley says that in the second half of 2023, his mental health began to deteriorate. He says in particular that during this period he began to take increased amounts of personal leave - something that should have been evident to Nuvei. He tendered evidence of his leave records which show that in the second half of 2023 he took about 68.4 hours of personal leave and in the early part of 2024, and a further 38 hours before his ongoing absence from work commenced. He submitted that, because he had disclosed in his initial interview he had experienced mental health challenges at his previous employer, when Nuvei saw he was taking large amounts of sick leave in the second half of 2023, it should have enquired as to his welfare, in part because it was or should have been aware of his medical history. He made the point that Nuvei did not enquire into his well-being.
[12] Mr Riley made a workers compensation claim which was not accepted. He has challenged this decision and continues to exercise his legal rights to challenge the decision. He furnished Nuvei with WorkCover Certificates of Capacity (WorkCover certificates) for the entire period of his absence, which began on 7 February 2024 and ended when his employment was terminated.
[13] Mr Riley conceded in his oral evidence that every WorkCover certificate he provided to Nuvei recorded that he had no capacity for employment. Mr Riley tendered in evidence a copy of a WorkCover certificate he had provided to Nuvei which was dated 10 June 2025. This certificate described Mr Riley's clinical diagnosis as "anxiety" and that he had no capacity for employment for the period 31 May 2025 to 27 June 2025. Mr Riley also conceded in his evidence that none of the certificates he provided contained a prognosis in relation to his health or capacity for work.
[14] Mr Riley also claimed that he had asked to be moved into a back-office role, perhaps to work on a customer relationship management system (CRM). The evidence in relation to this request was minimal - the assertion was made in Mr Riley's oral submissions. During his submissions Mr Riley said he made this request of someone at Nuvei on 20 April 2023. In so far as this assertion is said to have been a request by Mr Riley for an accommodation to be made by Nuvei relating to his health, there is an incongruity, which I do not consider material, between this assertion and the fact that Mr Riley took on a role described as more onerous in July 2023.
[17] On 5 June 2025, Mr Riley sent a response which asked that Nuvei's concerns be outlined in an email and said he would discuss the matters with his medical team and lawyers if necessary. In his submissions at hearing, Mr Riley claimed this was an invitation to Nuvei to engage with his medical professionals. I note that email contains no such "invitation".
[18] On 5 June 2025, Ms Sleiman sent Mr Riley what was described as a "show cause" letter. Some of the things said in the letter are:
[19] On 16 June 2025, Mr Riley sent a reply to the show cause letter. Some of the things said in the response are:
[20] On 16 June 2025, a meeting was held involving Ms Sleiman, Mr Riley, Mr Singh (who is General Counsel for Nuvei) and Ms Cahill from the Finance Sector Union.
[21] Ms Sleiman took what she described as a contemporaneous note of the meeting. Her apparent transcription of those notes, sent by her to her herself in an email in evidence and dated 16 June 2025, indicates Mr Riley said he was "doing a lot better", that "his health is in a different place", that he was "not able to provide any comments as the matter is going before the courts" and that he was waiting on lawyers and "file on the courts". Ms Sleiman said that in the meeting Mr Riley did not provide any further comment on the show cause letter other than his written response and stated words to the effect that he was not able to provide any comments as the matter is going before the courts. Ms Sleiman said in her oral evidence that the meeting finished with Mr Riley saying he had nothing more to say. The email transcription says the meeting opened at 1:30PM and closed at 1:45PM.
[22] Mr Riley conceded in his oral evidence that he did not say in this meeting that he had the capacity to return to work, pointing out that he is not a medical professional. Mr Riley said in his evidence that Ms Sleiman said, close to the conclusion of the meeting, the words "we will leave things as they are now". Ms Sleiman says she does not recall making that statement in the meeting. Mr Riley tendered a witness statement from Ms Cahill, who did not give oral evidence in the proceeding, at least in part because she was interstate and suffering from ill health. On this basis, I was asked by Nuvei not to attach weight to Ms Cahill's evidence. In my view, it was not necessary and would have been onerous to insist on Ms Cahill giving oral evidence in this proceeding and submitting to cross examination in the circumstances. I do not consider it would have assisted me to any great extent. Mr Riley says Ms Sleiman said the words "we will leave things as they are now" in the meeting. Ms Cahill said in her witness statement she recalls the statement being made. Ms Sleiman says she doesn't recall it. That is the evidence. Below I will explain why I do not consider anything of any great significance turns on this matter.
[23] Ms Sleiman says she considered Mr Riley's responses provided in the meeting and discussed the matter with Mr Kawtal. She said Mr Kawtal decided to terminate Mr Riley's employment as he was unable to perform the inherent requirements of his role. In his oral evidence, Mr Kawtal said it was his decision to terminate Mr Riley' employment, but it was made largely on the recommendation of and information provided by his HR team and advisors. Thus, while Mr Kawtal appears to have been the decision maker, he also appears to have operated to some extent at arm's length from the process concerning Mr Riley. In terms of what to make of all of this, I consider that Mr Kawtal decided to terminate Mr Riley's employment because, based on what he had been told by his team, he knew Mr Riley had been absent from work for about sixteen months, that he had not provided any information indicating he had capacity to attend work, or would be able to at any foreseeable time, despite being provided with an opportunity to do so.
[24] Ms Sleiman said Mr Kawtal decided to terminate Mr Riley's employment in part because he was taking up a "critical headcount in the team". There is no reference to this proposition in Mr Kawtal's written evidence, but, when asked about it in cross examination, he agreed with the proposition that Mr Riley's role, that was not being performed because Mr Riley was not at work, was part of the team's "critical headcount" and that Mr Riley's role could not be left open "for ten years". I consider that this reference was to the fact that Mr Riley's role was a required and important role, and the circumstance in which he was not performing the role could not be allowed to continue indefinitely.
[25] On 19 June 2025, Ms Sleiman sent a letter to Mr Riley advising him of the termination of his employment. Some of the things said in this letter are:
[26] Mr Riley did not provide any medical evidence to the Commission in this matter save for the WorkCover certificate which was tendered. At one point, he said that he decided he did not want to call his psychiatrist to give evidence and submit them to cross examination. As I said above, I did take the opportunity early in these proceedings to draw Mr Riley's attention to the fact that he should provide the Commission with any information in his possession that supported the assertions he makes in this matter, include those of a medical nature relating to his capacity. Mr Riley was also afforded several additional opportunities to file material after initial Directions were issued.
[27] I asked Mr Riley during the hearing whether he did have capacity to attend work at the time he was dismissed. In response, Mr Riley said he did, although the basis of this assertion was not entirely explained. He said that the author of the final WorkCover certificate, which said he was had no capacity for work from 31 May 2025 to 27 June 2025 was not his usual Doctor. He also said that after a period of hospitalization in July 2025, his psychiatrist told him he was fit to return to work. Again, I note that there was no evidence before the Commission of a medical nature substantiating this assertion.
[28] Mr Riley made several submissions about the probative value of WorkCover certificates. At this point I should note that Mr Riley made clear that he had obtained assistance in the presentation of his case by an Artificial Intelligence (AI) model, which was "legally trained". As mentioned further below, some of the references made by Mr Riley to particular legal principles or authorities may have been AI hallucinations and lacked any legal basis. To Mr Riley's credit, he did not press these when they were queried. For example, in the end he conceded that "certificates of capacity are a form of medical evidence and may be probative of diagnosis and work capacity".
[29] I do not consider that the evidence supports the notion that Mr Riley had capacity to attend and perform work of the kind he was employed to perform at Nuvei in June 2025, at the time of his dismissal. I also do not consider the evidence shows Mr Riley was about to regain his capacity for work imminently or in the foreseeable future. I do not know - because there is insufficient evidence before me to make a finding - whether Mr Riley has capacity for work now.
[30] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
Was there a valid reason for dismissal related to Mr Riley's capacity or conduct?
"The Respondent relied exclusively on WorkCover Certificates of Capacity that are administrative in nature and provide no prognosis. Despite having the contractual right under Clause 22 of the Employment Contract to require an Independent Medical Examination (IME), the Respondent did not exercise this right. Nor did it write to the Applicant's treating practitioners for clarification. By ignoring both the WorkCover certificates' limitations and its own contractual tools, the Respondent deprived itself of a proper evidentiary basis for dismissal. Accordingly, no valid reason existed under s 387(a)."
[36] By this submission, Mr Riley appears to argue that it cannot be said Nuvei's conclusion that Mr Riley could not perform the inherent requirements of his job was "sound, defensible or well founded" because it did not avail itself of the opportunity to seek more information about his medical condition and capacity for work, such as through an independent medical examination. Several aspects of the circumstances stand against this submission. First, the information which had been provided to Nuvei by Mr Riley - including a medical certificate of capacity signed by a doctor - indicated Mr Riley had no capacity for work. Second, he himself was provided the opportunity to address whether he had any capacity to perform his role. In circumstances where he was advised his employment may be terminated, I consider it reasonable for Nuvei to conclude Mr Riley had no capacity to perform his role, when he did not take the opportunity to assert that he could. Third, while I accept Nuvei could have proactively sought further medical information, it was not obliged to in circumstances where it had asked Mr Riley to provide any such information, if he wished to, to supplement what it already had in its possession.
[37] In this regard, I note that in the meeting held on 16 June 2025, Mr Riley said he was "doing a lot better". Mr Riley submitted that this information was given insufficient consideration by Nuvei, indicated by, among other things, its failure to record this feedback in its written summary of his response to the "show cause" process in its termination letter. This is a reasonable submission. However, the indication that he was "doing a lot better" still falls well short of a clear prognosis or indication as to the likelihood of a return of his capacity for work, especially in the light of the medical information in existence at the time, which recorded "no capacity" for work.
[38] As I mentioned above, Mr Riley made submissions as to the probative value of a Workers Compensation certificate of capacity, which he described as "administrative", and cited several decisions of the Commission as authority for this proposition. These decisions do not exist, nor does authority for the proposition that a certificate of capacity lacks probative value and cannot be relied upon (a point Mr Riley eventually conceded).
"Where an employee has been dismissed as a result of issues relating to their capacity, including reasons relating to their ability to perform their role, and the parties are in dispute about whether the employee possessed the requisite capacity to perform their job, the Commission must resolve this issue as a matter of fact."[12]
"When an employee is absent because of an incapacity to perform duties, a question of timing arises. The 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."
[41] At the time of Mr Riley's dismissal, the only information available suggesting a possibility of his return to capacity for work was his comment that he was "doing a lot better". As I have said above, this contrasted with the medical information available at the time, which indicated no capacity for work, and a striking absence of anything more specific indicating his prognosis, in circumstances where he had been absent from work with no capacity for nearly a year and a half.
[42] These are circumstances in which usually, the Commission will find that a decision to dismiss based on a lack of capacity to perform the inherent requirements of the job is made for on a valid reason. I consider that to be the case in these circumstances. This weighs in favour of a finding that the termination of Mr Riley's employment was not unfair.
[43] I have considered whether it may have been unreasonable to terminate Mr Riley's employment instead of attempting to re-deploy him into another role. Mr Kawtal conceded in his oral evidence that no consideration had been given to re-deploy Mr Riley. I consider this does not invalidate Nuvei's decision. On the basis of the material before it at the time, Mr Riley had "no capacity for work" either for his role, or another role.
Was Mr Riley notified of the reason for dismissal?
[46] Nuvei submitted that Mr Riley was notified of what I consider to have been a valid reason relating to his capacity for work prior to the decision to terminate his employment having been made, on 3 June 2025 when he was initially asked to attend a "show cause" meeting for reasons that were outlined, and in the "show cause" letter of 5 June 2025, which was further elaborated on when he with Ms Sleiman and others on 16 June 2025.
[47] This submission has merit. However, Mr Riley submitted, in effect, that this process was obscured because, on his evidence, during the meeting held on 16 June 2025 Ms Sleiman said, "we will leave things as they are".
[48] I do not consider this obfuscated that if Ms Sleiman said in that meeting "we will leave things as they are", the very clear indication Mr Riley had been given that Nuvei was considering terminating his employment because in its view he could not perform the inherent requirements of his job, and had no apparent prospect of doing so. The notification was in writing and in plain terms and is what is envisaged by s 387(b) of the Act. If he had read this material, Mr Riley knew that the termination of his employment was in contemplation, and the reason why. Mr Riley was notified of the reason relating to his capacity for work prior to the decision to terminate his employment and this weighs in favour of a conclusion that the termination of his employment was not unfair.
Was Mr Riley given an opportunity to respond to the valid reason?
[51] Mr Riley was given an opportunity to respond to the reason for the termination of his employment through what was described as the "show cause" process. He availed himself of this opportunity by providing a written response and a verbal response in the meeting held on 16 June 2025.
[53] Mr Riley also submitted that Nuvei adopted a "compressed" timeline in the process it adopted which ended in the termination of his employment, indicating "predetermination". He submitted that the process only ran for 14 days, with only three days between the "response meeting" on 16 June 2025 and the termination date on 19 June 2025.
[54] This submission asks me to infer, based on the timeline, that the decision to terminate Mr Riley's employment was a fait accompli. It also asks me to ignore the direct evidence given by the witnesses called by Nuvei that his responses provided through the process were considered. In effect, Nuvei took the view that after having provided Mr Riley with an opportunity to outline the basis that he could perform the inherent requirements of his role or might be able to do so in the future, his failure to do so substantiates a decision to terminate the employment. Had Mr Riley's responses been different, this may not have been the outcome. I do not accept the submission that the timeframe suggests the process was illegitimate in the face of the direct evidence given.
Did Nuvei unreasonably refuse to allow Mr Riley to have a support person present to assist at discussions relating to the dismissal?
[55] Mr Riley complained that the attendance of Mr Singh - Nuvei's General Counsel - at the meeting on 16 June 2025 created an "substantial imbalance of arms" and that procedural fairness required "disclosure of the true level of representation and a clear indication that the Applicant may wish to seek equivalent representation". Mr Riley submitted that this is "directly relevant" under s 387(d) of the Act. This submission is misconceived. The questions posed by s 387(d) of the Act is whether there was a refusal by an employer to allow an employee to have a support person present, and if so whether such refusal was unreasonable. There is no evidence Nuvei refused to allow Mr Riley to have a support person present. In the email of 3 June 2025, it told Mr Riley he could have a support person attend the "show cause" meeting it proposed to conduct on 6 June 2025, and in the letter, it sent on 5 June 2025, said that Mr Riley could have a support person present at the meeting it proposed for 16 June 2025. I note further Mr Riley did seek, and was permitted, to bring Ms Cahil to the meeting held on 16 June 2025. No weight exists against a finding that the dismissal of Mr Riley's employment was fair, taking into account the consideration of s 387(d) of the Act.
Was Mr Riley warned about unsatisfactory performance before the dismissal?
[56] The reason for the dismissal of Mr Riley's employment did not relate to his performance. This consideration therefore weighs neither for nor against a finding that the termination of Mr Riley's employment was unfair.
To what degree would the size of Nuvei's enterprise or the absence of human resources management specialists or expertise would be likely to impact on the procedures followed in effecting the dismissal?
[57] There were no submissions made that the size of Nuvei's enterprise or the absence of human resources management specialists or expertise impacted upon the procedures followed in effecting the dismissal. I can find no fault with these procedures. This is a neutral factor in my consideration of this matter.
[58] Mr Riley said I should have regard to the fact that on the evening of 25 July 2024 he was locked out of Nuvei's CRM system. He said this coincided with the date of his WorkCover conciliation conference at which he believes Nuvei discovered with surprise that he still had access to the system (having been absent from work at that time for some months). Mr Riley believes his subsequent removal from the system was a "reactive measure" and undermines the claim that "the process" was impartial. I do not accept this submission. In so far as Mr Riley is referring to "the process" arising in the termination of his employment, his access to the CRM system was removed nearly a year previously. There appears no connection between this and the decision to terminate his employment or the process that was followed to do so.
[59] Mr Riley also submitted that Nuvei disregarded its duty of care towards him in circumstances where it knew of his health vulnerabilities but failed to engage with treating practitioners, ignored opportunities to seek clarification and did not provide proactive support to him. This submission appears based on the propositions that (a) Nuvei should have proactively queried Mr Riley's wellbeing when his personal leave use began to increase in the second half of 2023, and (b) failed to make proactive inquiries or require an independent medical examination at around the time it decided to terminate his employment. As I have said above, I do not agree Nuvei was obliged to be more "proactive" than it was at the time of termination, in circumstances where it was in possession of advice that Mr Riley had no capacity for work. In terms of not reaching out to Mr Riley in the second half of 2023, even if this was an oversight, I do not consider it renders the eventual termination of his employment (some eighteen months later) harsh.
[60] I have given consideration to the impact of the termination of employment, both professionally and in terms of the effect financially and emotionally upon Mr Riley. Perhaps on one view, a less harsh approach may have been that Nuvei continue Mr Riley's employment, in circumstances where he was on leave without pay, for a longer period of time in the hope that he might regain his capacity - particularly when as he said - he was "doing a lot better". Against this view is the fact that Mr Riley's role had been left open for him for a significant period of time but was an important and required job within the business and could not be left unperformed indefinitely. Also against this view is the acute unlikelihood that Mr Riley was medically fit to perform the role, then or at any time in the immediate future, on the available evidence. I do not consider in these circumstances the impact of the termination upon Mr Riley - which was no doubt significant for him - weighs heavily in favour of a finding that the dismissal was unfair.
[61] I will observe that despite the challenges Mr Riley has been facing with his heath, his conduct in the presentation of his case, including at hearing, was competent and professional. I hope this bodes well for him in securing alternative employment in the future.
Is the Commission satisfied that the dismissal of Mr Riley was harsh, unjust or unreasonable?
[1] See Form R3 Employer Response to Unfair Dismissal Application, item 1.7
[2] Witness Statement of Jason Riley, 9 October 2025 [5]
[3] Witness Statement of Vanessa Sleiman, 17 October 2025 [15]
[4] Witness Statement of Paul Kawtal, 17 October 2025 [21] - [22]
[5] Witness Statement of Vanessa Sleiman [23]
[6] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 [14]
[7] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 [373]
[9] Raj Bista v Glad Group Pty Ltd t/a Glad Commercial Cleaning [2016] FWC 3009 [34]
[10] Kylie Smith v Bank of Queensland Ltd [2021] FWC 4 [124], [126]
[13] Jetstar Airways Pty Limited v Ms Monique Neeteson-Lemkes [2013] FWCFB 9075 [55]
[14] Witness Statement of Kawtal [26]; Witness Statement of Sleiman [38]
[15] Newton v Toll Transport [2021] FWCFB 3457 [182]
[16] Crozier v Palazzo Corporation (1996) 98 IR 137 [73]
[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] (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213
[20] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) IR 117 357 [51]; Edwards v Giudice [1999] FCA 1836 [6] - [7]
Printed by authority of the Commonwealth Government Printer
Mr Jason Riley
Nuvei Australia Merchant Services Pty Ltd [2026] FWC 75
(1995) 62 IR 371
(1996) 98 IR 137
(2010) 194 IR 1
(1995) 60 IR 1