s.365 - Application to deal with contraventions involving dismissal (consent arbitration)

Application to deal with contraventions involving dismissal - Consent arbitration - Dismissal not in contravention of Part 3-1 of the Act - Application dismissed

[1] On 18 September 2025, Mr Mitchell Coburn (the applicant) applied under s 365 of the Fair Work Act 2009 (Cth) for the Fair Work Commission to deal with a general protections dispute involving dismissal. Mr Coburn had been employed with Applied Air Solutions Pty Ltd (the respondent/employer) since 7 November 2024. Applied Air dismissed Mr Coburn on 8 September 2025.

[2] I am satisfied that I may deal with Mr Coburn's dispute by arbitration under s 369 of the Act. The Commission conducted a conference in this matter on 18 November 2025 but was unable to resolve the dispute. I issued a certificate under s 368 of the Act and the parties filed a Form F8B notification for consent arbitration on 8 December 2025.

[3] I conducted a determinative conference in this matter on 23 March 2026. Mr Coburn gave evidence on his own behalf. Mr Jarryd Trait, Director, gave evidence on behalf of Applied Air Solutions.

[4] The relevant facts in this matter are not in dispute. On 26 August 2025, Mr Coburn was working on site and injured his back. On 28 August 2025, Mr Coburn was unable to attend work and informed his manager, Mr Mark Walsh, Operations Manager, by text message. In the text message exchange that followed, Mr Coburn informed Mr Walsh that his injury was work-related. Mr Coburn provided a medical certificate that evening, which said that he had no capacity until 2 September 2025.

[5] On Sunday 31 August 2025, Mr Coburn emailed Applied Air and asked for an incident report form. Ms Tanisha Spiteri, Administration & Accounts replied on 1 September 2025. She attached the form and asked that it be returned to her. Mr Coburn completed the form and emailed it but unfortunately to the wrong email address. He then re-sent the form to Applied Air but only on 13 September 2025 (after he had been dismissed).

[6] On the evening of Sunday 31 August 2025, Mr Trait asked Mr Coburn if he could collect Mr Coburn's work van the following morning. Mr Trait and Mr Coburn arranged for the return of the work van, and Mr Trait collected it on the morning of Monday 1 September 2025.

[7] On 2 September 2025, Mr Trait found a small plastic bag in the work van. Mr Trait believed the bag to be evidence of drug use by Mr Coburn.

[8] Also on 2 September 2025, Ms Spiteri emailed Mr Coburn to ask for an update, Mr Coburn replied to say that he would have a letter from his physiotherapist the following day but expected to be off for another week.

[9] On 4 September 2025, Ms Spiteri again emailed Mr Coburn. The email said:

We'd like you to attend a formal meeting to discuss multiple concerns regarding your employment.

The purpose of the meeting is to give you an opportunity to respond to these concerns before we decide on any further action.

[10] Mr Coburn replied to ask what the concerns were, and Ms Spiteri replied:

• Disrespecting colleagues and superiors
• Poor/lack of communication to superiors
• Serious misconduct breaches
• Loss of company property

We acknowledge that you have lodged paperwork with WorkCover regarding your reported workplace injury (though you have not informed us your injury was related to work until now). This will be treated as a separate matter, and we will cooperate requirements of the WorkCover process.

[11] Mr Coburn forwarded the letter from his physiotherapist to Applied Air at 4:00pm on 4 September 2025.

[12] Despite the letter from Mr Coburn's physiotherapist indicating that he needed to be off work until 9 September 2025, the meeting went ahead on Friday 5 September 2025 by telephone. In attendance were Mr Trait, Ms Spiteri and Mr Walsh for Applied Air. Mr Trait asked Mr Coburn about the plastic bag. Mr Coburn said that he did not know anything about it. The meeting lasted no longer than about 10 minutes.

[13] On Monday 8 September 2025, Applied Air emailed Mr Coburn a letter that terminated his employment. The letter said:

This letter confirms the outcome of the meeting conducted on 5th September 2025 regarding concerns with your employment. Following that meeting, we have carefully considered the matters discussed.

• Your recent absence from work, where although a medical certificate was provided, you failed to give timely updates regarding your return to work. This caused operational difficulties.
• The discovery of an item in your vehicle while it was located on company premises which appeared to be drug-related. We note this is particularly concerning given that we previously met with you on 30/05/2025 regarding drug use, at which time you acknowledged the issue, promised to stop, and were given another opportunity with our support.
• The failure to return a company-owned tool valued at approximately $300, or to provide any satisfactory explanation of where or when it was lost.
• The use of disrespectful and inappropriate language towards a superior, including statements that undermined authority and team respect. This behaviour is unacceptable in any workplace and constitutes serious misconduct.

After considering your response, we have determined that your conduct has breached workplace standards, damaged trust, and created safety and cultural concerns.

We acknowledge your advice that you have lodged paperwork with WorkCover regarding your claimed injury. This matter will be managed separately with the insurer and is not affected by this termination decision.

[15] On Tuesday 9 September 2025, Ms Spiteri emailed Mr Coburn to inform him that Applied Air had completed the employer section in the WorkCover claim form and forwarded the form to their WorkCover agent.

[16] Mr Coburn's WorkCover claim was accepted and there is no dispute that Mr Coburn received WorkCover payments.

[17] Section 340 of the Act says:

(1) A person must not take adverse action against another person:

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

[18] A Full Bench of the Commission in Keep v Performance Automobiles Pty Ltd [2014] FWCFBCTNeed pinpoint reference 8941 at [14] - [15] said:

The task of the FWC in a consent arbitration proceeding such as this is to determine three factual questions:

(i) Was the employee exercising a workplace right, within the meaning of s.341?

(ii) Did the employer take 'adverse action' against the employee, within the meaning of s.342?

(iii) Did the employer take the adverse action against the employee because of a prohibited reason, or reasons which included that reason?

In the context of this case the applicant bears the onus of establishing that he had exercised a workplace right at the relevant time and that adverse action was taken against him. If so established, the respondent then bears the onus of establishing that the adverse action was not taken because Mr Keep had exercised a workplace right.

[19] There is also no dispute, and I am satisfied that Mr Coburn had a workplace right that he exercised when he was off work due to his back injury and made a WorkCover claim.

[20] There is no dispute and I am satisfied that Applied Air took adverse action against Mr Coburn when they dismissed him on 8 September 2025.

[21] The only issue for me to determine in this matter is whether Applied Air took adverse action against Mr Coburn because he had exercised a workplace right.

[22] I am satisfied that that Applied Air did not dismiss Mr Coburn because he had exercised his workplace right to be off work and to make a WorkCover claim. Applied Air's evidence is clear about the reasons why they dismissed Mr Coburn. This is a not an application for an unfair dismissal remedy under s 394 of the Act and I do not have to be satisfied that those reasons are accurate or valid. Provided that none of the reasons for taking the adverse action include that Mr Coburn had workplace rights that he exercised, the dismissal will not be in breach of the general protections' provisions.

[23] It is clear that Applied Air were dissatisfied with what they perceived to be Mr Coburn's inadequate communication about his absence from work, despite it being also clear that the employer knew the reasons he was off work. The employer was entitled to request medical evidence. Mr Coburn ultimately provided it. Applied Air do not appear to challenge the evidence; their reasons relate to the insufficiency of communication.

[24] I also do not need to be satisfied that the plastic bag was a drug related item for which Mr Coburn was responsible. It is certainly the case that I do not have sufficient information to be satisfied, on the balance of probabilities, that Mr Coburn used drugs, but it is clear from the evidence that the employer believed Mr Coburn to have used drugs, and they referred to an earlier occasion when the matter was raised with Mr Coburn. I do not make any findings about whether Mr Coburn used drugs. But I am satisfied that Mr Trait believed that Mr Coburn was using drugs and that this was one of the reasons why Applied Air dismissed him.

[25] While the employer referred to Mr Coburn having made a WorkCover claim, I am not satisfied that his doing so was one of the reasons why Applied Air dismissed Mr Coburn.

[26] I am satisfied on the balance of probabilities that Mr Trait was the decision maker and none of the substantive and operative reasons for his decision to dismiss Mr Coburn included that Mr Coburn had been off work and had made a WorkCover claim.

[27] Based on the above, I am not satisfied that Applied Air dismissed Mr Coburn in contravention of Part 3-1 of the Act (the general protections provisions). I dismiss Mr Mitchell Coburn's application.

Printed by authority of the Commonwealth Government Printer