Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objection that Applicant 'not protected from unfair dismissal' not upheld - dismissal not unfair - application dismissed.

[1] Mr Shannon Ardener has applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The respondent to Mr Ardener's unfair dismissal application is D.H & G.S Slessor Pty Ltd (ABN 48629339978) (the Respondent). On 13 November 2025, Mr Ardener was notified of his dismissal with immediate effect. As he lodged his unfair dismissal application with the Commission on the following day, I am satisfied the application was made within the period required in subsection 394(2) of the Act (s.396(a)).

• [2] I am also satisfied Mr Ardener was a person protected from unfair dismissal (s.396(b)). Firstly, the sum of Mr Ardener's annual rate of earnings was less than the applicable high-income threshold of $183,100 (s.382(b)(iii)). Secondly, I am satisfied that having been employed for approximately 11 months at the time when he was given notice of his dismissal on 13 November 2025, Mr Ardener had completed the required 6-month minimum employment (s.382(a) and s.383(a)(i)). I reached this latter conclusion having considered a list of 15 employees said by both parties to have been employed by the Respondent as at 13 November 2025.[1] I was satisfied that the Respondent was not a small business employer because I was not persuaded by the Respondent's submission that one of the employees on that list was not a regular casual employee at that time. In this regard, the Respondent had produced "Payroll Activity Details" for the employee in question for the 30 May 2025-12 November 2025 period and this had revealed that in all bar three weeks during the period, she had been engaged for 5 hours per week. The Respondent did not dispute that the other 14 employees on the list were to be counted for the purpose of calculating the number of employees employed by it as at 13 November 2025 (s.23).

[3] As I am satisfied the Respondent was not a small business employer at the material time, the question of whether the dismissal was consistent with the Small Business Fair Dismissal Code (Code) does not arise for determination (s.396(c)). I also note that the Respondent did not object to Mr Ardener's application on the basis that his dismissal was a case of genuine redundancy within the meaning of s.389 of the Act. I have considered this question (s.396(d)) within the context of the background facts and am satisfied Mr Ardener's dismissal was not a case of genuine redundancy. This is because I do not consider the requirement in s.389(1)(b) of the Act was met.

[4] The consequence of these findings is that I must proceed to consider the merits of Mr Ardener's application and s.385 of the Act comes into focus and. Section 385 provides:

A person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy."

[5] On the basis of the material and evidence before me, it is clear Mr Ardener was dismissed (s.385(a)) and, as outlined above, this is not a matter that involves consideration of whether the dismissal of Mr Ardener was consistent with the Code (s.385(c)). As I am satisfied Mr Ardener's dismissal was not a case of "genuine redundancy" as defined by s.389 of the Act (s.385(d)), this leaves only s.385(b) to consider. In determining whether Mr Ardener's dismissal was harsh, unjust or unreasonable, and therefore unfair, I am required to give consideration to s.387 of the Act.

[6] The Respondent is a family-run business selling and hiring out equipment to assist with independent living and mobility, such as recliner chairs, walkers, scooters and wheelchairs. It also delivers, services, repairs and sets up the equipment, operating out of premises in Devonport and Burnie. Mr George Slessor gave evidence that he had been advised by the Respondent's accountant that its wage bill was too high, its cashflow was "really bad" and that the number of workers employed was not sustainable. Mr Ardener was engaged as a casual employee but invariably worked 28 hours per week throughout his employment. Mr Slessor described Mr Ardener's duties as general labouring, which included "warehouse work", equipment cleaning and deliveries. He said that on 13 November 2025, he had three employees (including Mr Ardener) performing such roles and he made the decision to terminate two of them (Mr Ardener and Mr Dean Miliken). Mr Slessor also outlined that he analysed who he had employed in the business, what each of them was doing and how he could best distribute the available work so as to ensure that which was required to be done, was done. Ms Slessor also described making some operational changes to the way in which deliveries were to be carried out in order to make the business operations more efficient. He stated that Mr Ardener's capacity to perform delivery work was limited because he did not have a driver's licence.

[7] In this case, the reason for the dismissal given by the Respondent was that the Respondent could not afford to keep employing Mr Ardener. This does not, however, constitute a "valid reason for the dismissal related to the person's capacity or conduct..." (s.387(a)) and for its part, the Respondent did not assert that the reason for Mr Ardener's dismissal was related to his capacity or conduct. The s.387(a) consideration is therefore neutral in this case and the Respondent's reasons require consideration in connection with s.387(h), "any other matters the Commission considers relevant." This is dealt with below.

[8] Sections 387(b) and 387(c) refer to reasons related to the capacity or conduct of the employee but as I have outlined, the Respondent did not notify Mr Ardener that there was any reason for his dismissal related to his capacity or conduct, valid or otherwise, and nor did it assert that there was a valid reason for dismissal related to his capacity or conduct. The factors in s.387(b) and s.387(c) are therefore neutral considerations in this matter.

[9] As to s.387(d), the evidence before me indicates that there was no unreasonable refusal by the Respondent to allow Mr Ardener a support person at the discussion relating to his termination on 13 November 2025. Section 387(d) will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them. In terms of s.387(e), the Respondent did not rely on issues of unsatisfactory performance, such that consideration of this particular factor is not required. The s.387(d) and s.387(e) factors do not, therefore, weigh in favour of a finding of unfairness.

[10] I consider, however, that the s.387(f) and s.387(g) factors offer some explanation for quality of the process implemented by Mr Slessor. I have noted that at the time of the dismissal, the Respondent had 15 employees but did not have dedicated internal human resource management specialists or expertise. I consider these factors had a direct impact on the procedure Mr Slessor adopted and consider they weigh against a finding of unfairness.

[11] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant. In this respect, I have noted Mr Ardener's relatively short period of service. I have also noted that he has a learning difficulty and that he has found it difficult to find employment both prior to and after working for the Respondent. I also accept that the timing of his dismissal was not ideal.

[12] Mr Ardener disagrees with the decision to terminate his employment. He claims his work is still being performed by others and that Mr Slessor has been making new offers of employment despite having dismissed him. Mr Slessor responded to these propositions by stating that no one extra had been employed to do work previously performed by Mr Ardener and that the Respondent's total number of employers reduced further when three employees performing different duties to Mr Ardener resigned from their employment during the period immediately following his dismissal. When Mr Ardener subsequently claimed that Mr Slessor had offered one of his former colleagues more hours following his dismissal, Mr Slessor countered with details of simply having offered more retail work to an existing employee in early 2026. Mr Slessor also volunteered that the business circumstances were now such that he was in a position to offer Mr Ardener some work performing the duties he had previously undertaken, albeit not on the hours he had previously worked. Mr Ardener advised, however, that he did not wish to work for the Respondent again.

[13] I accept that Mr Ardener does not agree with the Respondent's decision to dismiss him but I am satisfied that Mr Slessor was a credible witness and accept his straightforward explanation of the circumstances that led him having to terminate Mr Ardner's employment. I accept that the Respondent's operations are small, that its labour costs had to be reduced and that it was required to introduce some operational changes in order to improve its financial performance. I accept that the Respondent could not afford to maintain Mr Ardener's employment.

[14] I observe that concluding that a dismissal was not a case of "genuine redundancy" within the meaning of s.389 of the Act does not necessarily lead to a conclusion that it was unfair. Even if the dismissal was not a "genuine redundancy" for the purposes of s.389, it does not follow that the dismissal was not a bona fide redundancy for a legitimate reason. In this case, the Respondent in effect made the decision on 13 November 2025 that it no longer required Mr Ardener's job to be performed by anyone because of changes in its operational requirements. Primary amongst these operational requirements was its need to address its challenging financial circumstances by reducing its employee numbers. It was not suggested and nor have I been persuaded that it would have been reasonable in all the circumstances for Mr Ardener to be redeployed elsewhere within the Respondent's enterprise. Within the context of this case, I am also not persuaded that it would have been reasonable to expect a small business to continue to endure and absorb a worsening financial position so that an employee who was surplus to its requirements could be kept on.

• [15] I accept that the evidence establishes that Mr Slessor did not consult or otherwise notify Mr Ardener in relation to the reason for his termination until it notified him of the decision it had already made to dismiss him. This represents a deficiency in the procedure adopted by Mr Slessor. It is, however, relevant to consider what might have resulted from consultation,[2] or giving Mr Ardener an opportunity to respond. In this case, I do not consider that consultation/dialogue would have changed the decision to dismiss Mr Ardener. Even if the parties had discussed possible measures to avert Mr Ardener's dismissal, I am not persuaded that these would have resulted in the operational reasons in this case being overcome or that they would have either prolonged the employment in a material way or led to a different outcome. I am persuaded that the state of the Respondent's operations and the nature of its financial position at that time, as described by Mr Slessor, were such that nothing would have changed in the short term. On balance, I do not consider the failure to consult or give Mr Ardener an opportunity to respond renders Mr Ardener's dismissal unfair. The Respondent was a business that was required to address its financial circumstances and this led to the unfortunate outcome that befell Mr Ardener.

[16] Even if I am wrong in relation to the absence of consultation and an opportunity to respond, and it was considered that these factors of themselves, or in combination, rendered Mr Ardener's dismissal unfair, I would not have ordered reinstatement. Given Mr Ardner's stated opposition to returning to work for the Respondent, I would not have considered reinstatement was appropriate in the circumstances.

[17] Nor, for a number of reasons, would I have ordered the payment of compensation to be appropriate in all the circumstances of this case. Firstly, I do not consider that a consultation period for further dialogue for anything more than one or two further days would have been required at the time of his dismissal, given the (then) size and state of the Respondent's operations. In this regard, I have noted that Mr Ardener was nonetheless paid for the balance of his working week when notified of his dismissal without being required to work it out or having been entitled, as a casual employee, to a period of notice. Secondly, while I have concluded that Mr Ardener's employment was terminated by the Respondent because it no longer required his job to be done by anyone, he had no entitlement to redundancy pay in accordance with s.119 of the Act. This is because Mr Ardener was employed for less than 12 months and, more fundamentally, was a casual employee. Thirdly, while Mr Ardener is aggrieved at the manner of his dismissal, s.392(4) of the Act prohibits the Commission from ordering an amount of compensation that includes a component by way of compensation for shock, distress, or humiliation, or other analogous hurt caused to him by the manner of his dismissal.

[18] I have considered whether Mr Ardener's dismissal was harsh, unjust or unreasonable (s.385(b)) and having considered and weighed each of the matters specified in s.387 of the Act, I am not satisfied the dismissal of Mr Ardener was harsh, unjust or unreasonable. However, even if I had concluded Mr Ardener's dismissal was unfair, I would not have ordered reinstatement and nor would I have considered an order for compensation to be appropriate in all the circumstances of this case.

[19] Mr Ardener's application for unfair dismissal remedy is dismissed. Given this conclusion, I will not issue an Order.

[2] Maswan v Escada Textilvertrieb T/A ESCADA [2011] FWA 4239 at [37].

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