1

ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – functus officio – ss.604, 739 Fair Work Act 2009 – Full Bench – appellant failed to implement outcome of dispute determined by Full Bench in its earlier decisions – first instance dispute concerned whether employees who drive concrete agitator trucks on Snowy Hydro 2.0 project in NSW are correctly classified as Tunneller Class 2-TW2 or Tunneller Class 1-TW3 under SC Hydro P/L – AWU Tunnel and Associated Works Greenfield Agreement 2021 – 2025 (Agreement) – in first appeal decision handed down on 28 May 2025, Full Bench determined disputed question of construction in relation to classifications, allowed appeal, quashed first instance decision and directed parties to confer as to whether there was any remaining dispute as to implication of decision of Full Bench for particular employees subject of dispute – parties were unable to agree on implications of first appeal decision – following receipt of further submissions, Full Bench handed down second decision on 29 July 2025 in relation to classifications of certain employees – on 17 November, CFMEU indicated to Commission that they sought order from Commission reflecting determination made on 29 July 2025, since CFMEU wished to commence court proceedings against appellant for failure to comply with arbitrated outcome – appellant submitted Full Bench had no power to make orders in nature sought by CFMEU – Full Bench considered whether Commission is ‘functus officio’ in sense that Full Bench has no power to take any further step with respect to dispute as it is requested to do so by CFMEU – acknowledged ss.738(b) and 739 of FW Act provide for Commission to ‘deal with’ a dispute if a term of an enterprise agreement that provides a procedure for dealing with disputes requires or allows Commission to perform that function – noted in hearing appeal in matter, Full Bench is undertaking appeal which itself forms part of process of private arbitration – observed question of whether Commission can be functus officio once it has exercised a power is not straightforward – doctrine of functus officio refers to circumstance in which, having exercised a statutory power, authority of a decision-maker is spent and decision-maker has no power to revisit or alter their decision [Jayasinghe] – observed Commission’s power to vary or revoke a decision under s.603(1) means Commission cannot be functus officio in sense Commission is prevented from reopening or revisiting a decision – observed the public interest in finality of litigation is relevant in deciding whether discretion to vary or revoke a decision should be exercised [Grabovsky] – noted availability of appeal under s.604(1) likely to mean Commission will be reluctant to vary or revoke decision where applicant for order is person who is simply aggrieved by decision and should pursue an appeal – Full Bench acknowledged question which arose was whether clause 3.12 of Agreement (arbitration of dispute by Commission) has removed power Commission generally has to vary or revoke one of its decisions when dealing with dispute referred to it under Agreement – Full Bench found parties who choose to go to arbitration with Commission take body as they find it with knowledge of its structure and powers, including power of Commission under s.603 – Full Bench did not consider power of Commission to vary or revoke its decision has been removed merely because clause 3.12(h) of Agreement provides for Commission to arbitrate or to make a determination that is binding on parties – similar conclusion found in Glen Cameron Nominees P/L – Full Bench did not accept that it is functus officio or lacks capacity to take further steps in dispute – Full Bench considered whether Commission can make orders when resolving a dispute under clause 3.12 of Agreement – Full Bench observed s.739(4) authorises Commission to ‘arbitrate’ a dispute if parties have agreed for it to do so – noted term ‘arbitrate’ not defined in Act, however s.595(3) provides that in dealing with a dispute by arbitration, Commission may make ‘any orders it considers appropriate’ [Falcon Mining; Murthi] – acknowledged s.595(3) makes clear that once Commission is authorised to arbitrate a dispute by s.739(4), capacity to ‘arbitrate’ includes Commission may make ‘any orders it considers appropriate’, including remedial orders – noted conclusion is harmonious with intention of Parliament, from terms of Act, that Commission be able to effectively resolve disputes – Full Bench considered whether any further order or determination should be made – acknowledged question is a matter of discretion – noted Full Bench previously determined classifications of 7 employees as Tunneller Class 1 in their current roles and they must be treated and paid at that classification moving forward as long as they have been performing their existing roles, at least after completing 6 months of experience as Tunneller Class 2 role – noted determination of Full Bench is binding on appellant and it cannot challenge determination simply on basis it disagrees with conclusion – observed extent that appellant continues to fail to pay identified employees at classification of Tunneller Class 1, it is contravening Agreement – acknowledged identified employees and CFMEU can commence proceedings in Federal Court or Federal Circuit and Family Court to recover underpayments or for pecuniary penalties to be imposed with respect to apparent non-compliance – Full Bench satisfied earlier decision should be varied, making additional and more specific orders as to what appellant is required to do to resolve dispute – satisfied appropriate to make orders in form proposed by CFMEU.

Appeal by SC Hydro P/L against decision of Crawford C of 20 November 2024 [[2024] FWC 3196] Re: Construction, Forestry and Maritime Employees Union and Anor

C2024/8921

[2026] FWCFB 27

Gibian VP
Boyce DP
Butler DP

Sydney

9 February 2026

2

TERMINATION OF EMPLOYMENT – Merit – reinstatement – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – appeal – Full Bench – appellant lodged appeal against first instance decision of Commission made on 18 September 2025 – appellant is an abattoir in regional town of Cowra, NSW – respondent commenced employment as production worker in 2017 and was terminated without notice for alleged serious misconduct, involving racist comments – at first instance, Commission found respondent was unfairly dismissed and ordered reinstatement and continuity of employment – Commission was satisfied order for lost pay was appropriate, but was unable to make order on materials filed – directions were issued for further material in relation to quantum of order with respect to lost remuneration – appellant made 12 grounds of appeal – appellant sought admission of new evidence (witness statement) on appeal under s.607(2) – Full Bench not satisfied it was appropriate to admit witness statement as new evidence on appeal simply to permit a party to remedy a deficiency in drafting of its evidence, and would result in procedural unfairness to respondent – Full Bench granted permission to appeal in relation to some of the appeal grounds concerning approach adopted by Commission to hearsay evidence, and satisfied in public interest under s.400(1) – Full Bench considered appeal grounds – in relation to ground that evidence given by Production Manager should not have been considered to be hearsay evidence, Full Bench found submission misconceived – found there was no error by Commission considering hearsay nature of evidence when assessing whether to accept respondent’s evidence – Full Bench considered grounds regarding alleged racist comments by respondent to other employees at abattoir who were from Pacific Islander background, referring to them as ‘tree apes’, ‘black cunts’ and ‘monkeys’ – at first instance, Commission was not satisfied respondent made racist comments at work – accepted Commission treated evidence given by Beef Foreman that respondent had made racist comments to other employees, as hearsay – Commission had understood that Beef Foreman had not himself witnessed respondent making racist comments – observed Beef Foreman was not cross-examined about truth of allegation that respondent had made racist comments to Pacific Islander employees – Full Bench noted appellant had not relied upon racism to justify respondent’s dismissal – Full Bench found Commission erred in treating evidence of Beef Foreman in relation to racist statements made by respondent as hearsay, since it was clear Beef Foreman had personally witnessed respondent making racist statements – however, Full Bench found Commission did not make an error by considering fact respondent was not cross-examined in making factual findings as to whether respondent made racist statements – Full Bench considered ground that Commission erred in finding respondent did not make racist comments towards other staff members and that Beef Foreman did not say he witnessed respondent making racist comments – Full Bench found Commission erred by misreading witness statement of Beef Foreman and finding he did not say that he personally witnessed respondent making racist statements – noted this error infected Commission’s finding that respondent did not make racist comments because finding was made, on incorrect understanding that Beef Foreman did not witness respondent making racist comments – found significant error of fact for purposes of s.400(2) – Full Bench held Commission erred in treating evidence of Beef Foreman in relation to racist statements alleged to have been made by respondent as being hearsay rather than direct evidence – observed Commission may still have found statements were not made – noted evidence does not establish when events were alleged to have occurred, the racist statements were not treated by appellant as warranting disciplinary action and allegation was not relied upon at time of dismissal – observed racist statements, if they were made, constitute instances of repugnant and deplorable racism – permission to appeal granted – appeal allowed – first instance decision quashed – matter remitted to Commission to redetermine question of remedy, consequent upon finding that dismissal was harsh, unjust or unreasonable.

Appeal by Cowra Meat Processors P/L against decision of Walkaden C of 18 September 2025 [[2025] FWC 2793] Re: Moiler

C2025/9482

[2026] FWCFB 33

Gibian VP
Saunders DP
Dobson DP

Sydney

13 February 2026

3

ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – permission to appeal – appeal – Full Bench – Construction, Forestry and Maritime Employees Union (CFMEU) through its Maritime Union of Australia Division (MUA) sought appeal of Commission’s decision regarding arbitration of a dispute under s.739 of FW Act and clause 14 of Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021 (Agreement) – clause 14 permits Commission to deal with a dispute by arbitration – first instance dispute concerned proper payment under Agreement to a shiftworker rostered off on a public holiday – shiftworker was an employee of Sydney International Container Terminals P/L (SICTL) and a member of MUA – shiftworker was employed on SICTL 12 Hour General Maintenance Roster, paid an annual salary and required to work 32 hours per week – MUA claimed Agreement incorporated clause 30.3 of Stevedoring Industry Award 2020 (Award) which provided a shiftworker rostered off on a public holiday to be paid for a public holiday at ordinary rate of pay in addition to ordinary weekly wage – Commission arbitrated ‘on the papers’ by considering two issues in first instance about proper payment due to a shiftworker – (1) whether reference to shiftworker in clause 30.3 of Award meant a person who worked an average of 35 hours per week; and (2) if not, whether express provisions of Agreement concerning public holidays, particularly clause 29 (public holidays) ‘covered the field’ in relation to public holiday entitlements, meaning clause 30.3 of Award was not incorporated by clause 2 of Agreement on grounds of inconsistency – in relation to (1), Commission determined meaning of shiftworker under Award was not limited to an employee who worked an average of 35 hours per week – Commission answered first issue in favour of MUA, finding employee considered to be a shiftworker – in relation to (2), Commission considered extent of Award incorporation and other clauses in Agreement – Commission considered clause 2 of Agreement which provided for Award incorporation, to extent of inconsistency – Commission considered public holidays clause of Agreement constituted a comprehensive set of conditions and the omission of an entitlement in relation to payment for a shiftworker rostered day off on a public holiday reflected employer’s intention that there not be any additional benefit in that circumstance – Commission determined public holiday clause wholly displaced public holiday provision in Award – Commission determined a shiftworker rostered off on a public holiday was not entitled to ordinary rate for public holiday in addition to ordinary weekly wage – MUA sought leave to be heard by Full Bench in appeal – submitted Commission erred in making findings in relation to intention of Agreement and failed to give proper reasons – Commission granted permission on public interest grounds and otherwise on basis of general discretion under s.604 – Full Bench acknowledged proper construction of Agreement primary issue to be determined – whether clause 2 of Agreement incorporates clause 30.3 of Award, or whether such incorporation is precluded due to inconsistency – Full Bench considered Maribyrnong City Council v Australian Municipal, Administrative Clerical, and Services Union where an approach to ascertaining inconsistency between Part A and Part B terms of Agreement was identified – Wheelahan J identified in order that there be inconsistency between terms of Part A and Part B, the terms must be such that they cannot sensibly or fairly be read together – Full Bench accepted inconsistency between incorporated terms of Award and express provisions of Agreement arises where ‘they cannot sensibly or fairly be read together’, test of inconsistency to be applied after incorporation – Full Bench reviewed express provisions of Agreement and terms of Award, including whether terms of Agreement demonstrate an intent to cover a subject-matter to exclusion of corresponding incorporated terms of Award – Commission considered clause 29 of Agreement makes no express provision for a public holiday monetary benefit to a shiftworker who is not rostered to work, which indicates clause 29 not intended to comprehensively deal with subject of public holidays – found clause 30.3 of Award confers entitlement of additional pay on shiftworkers rostered off on a public holiday – Commission held clause 30.3 of Award can only confer additional pay for an NES public holiday and is not permissible to construe incorporated clause 30.3 as conferring an additional days’ pay in respect of public holidays as prescribed by clause 29 of Agreement – Full Bench allowed appeal – first instance decision of Commission quashed – Full Bench redetermined matter – terms of Agreement require SICTL to pay shiftworkers rostered off on the day on which a public holiday prescribed by clause 30 of Award falls, at ordinary rate for public holiday in addition to their ordinary weekly wage.

Appeal by Construction, Forestry, and Maritime Employees Union against decision of Easton DP of 2 April 2025 [[2025] FWC 923] Re: Sydney International Container Terminals P/L t/a Hutchison Ports Sydney

C2025/3124

[2026] FWCFB 44

Gibian VP
Slevin DP
Farouque DP

Sydney

23 February 2026

4

TERMINATION OF EMPLOYMENT – Misconduct – CCTV footage – ss.387, 394 Fair Work Act 2009 – applicant commenced employment with respondent as a train driver around 2014 and worked in rail industry since 2007 – on 6 March 2025, respondent contended applicant made Nazi salute gesture twice while on platform at Mittagong Railway Station – on 26 May 2025, applicant terminated for serious misconduct concerning incident on 6 March – respondent further submitted applicant was on duty during incident, applicant was identifiable as employee of respondent, conduct breached respondent’s Code of Conduct and Respect Policy, and conduct brought respondent into disrepute – applicant denied performing Nazi salute and contended he performed an ‘all clear’ hand signal used in rail industry and/or a gesture of camaraderie between train crew – Commission considered whether dismissal was harsh, unjust or unreasonable – considered valid reason under s.387(a) – observed CCTV footage of incident was not made available to parties until 17 September 2025, being two days before filing of applicant’s materials and almost four months after dismissal, which meant respondent determined whether it had a valid reason for dismissal on basis of materials that differed significantly from evidence on which Commission would determine valid reason – Commission found on 6 March 2025 at 12.38pm, applicant gestured by way of Nazi salute toward Aurizon service and at 1.21pm, applicant gestured by way of Nazi salute toward SCT Logistics service – observed CCTV footage was compelling and even isolated still images from CCTV footage showed applicant performing Nazi salute – found applicant’s contention he was giving an ‘all clear’ signal was disingenuous on evidence – Commission observed applicant not considered to be person who harbours Nazi sympathies or advocates such ideology, he simply made two extremely inappropriate gestures, noting he smiled before first gesture, as jokes – acknowledged evidence of expert witness Train Crew Compliance Officer who stated he would never instruct a student to perform ‘all clear’ signal in manner applicant did – found applicant was notified of reason for dismissal under s.387(b) – found applicant was given multiple opportunities to respond to allegations and his responses were taken into account – in relation to other relevant matters under s.387(h), noted there was no dispute between parties that act of performing a Nazi salute would warrant dismissal – held respondent had valid reason for dismissal of applicant and procedural fairness afforded to applicant – held dismissal was not harsh, unjust or unreasonable – held dismissal was not unfair – application dismissed.

Jordan v Pacific National Services P/L

U2025/10201

[2026] FWC 512

Cross DP

Sydney

28 February 2026

5

TERMINATION OF EMPLOYMENT – Merit – compensation – ss.387, 394 Fair Work Act 2009 – two applicants were summarily dismissed for bullying conduct – first applicant was employed as a Duty Manager since November 2023 – second applicant was employed as a Food and Beverage Supervisor since November 2023 – subject of incident was another Manager (complainant) – on 3 July 2025, first applicant arranged a small display involving rubber ducks and a hand-drawn pentagram on complainant’s desk referred to as ‘ducks engaged in a summoning ritual to summon more ducks’ – first applicant stated she intended to bring in a larger duck the following day as the ‘product’ of the spell – complainant was distressed about the rubber ducks and pentagram being placed on her desk and indicated to her managers that it was a ‘symbol evoking the devil’ and that she had past experiences which terrified her of ‘ritualistic actions’ – respondent investigated complaint – on 7 July 2025, complainant informed manager that another employee had shared with her that there existed a group chat among current and former employees that were mocking the complainant about pentagram incident – on 9 July 2025, second applicant was summarily dismissed in relation to participation in group chat and initiating bullying conduct – that same day first applicant sent complainant a text message apology – respondent determined that first applicant’s apology was not in good faith – later that day, first applicant was summarily dismissed following meeting – Commission considered whether dismissal was harsh, unjust or unreasonable under s.387 – found respondent’s view of the relationship between the complainant and applicants was based on vague assertions and hearsay evidence – evidence of applicants preferred compared to respondent – Commission accepted placing the rubber ducks was not intended to be malicious – Commission found behaviour did not constitute bullying – found first applicant consistently stated reason she had been placing rubber ducks around workplace was to boost morale of team as a whole and would tell people what she was doing – accepted her prank was not targeted towards complainant and while prank may have been unwise it was not intended to be malicious – satisfied evidence did not establish first applicant engaged in behaviour that would constitute bullying – accepted second applicant was unaware that complainant was distressed by incident at the time she joined the group chat – did not consider any of messages that second applicant contributed to group chat amounted to bullying or mockery of complainant as respondent maintained – Commission not satisfied there was a valid reason to dismiss either of the applicants and decision to dismiss applicants was disproportionate to the gravity of their conduct – noted complainant did not give evidence in proceedings – noted applicants raised complainant has since their dismissals obtained a tattoo of a pentagram, which seemed incongruent with level of impact complainant appears to have communicated to respondent that incident had on her found conduct in context did not provide a valid reason for dismissal even if it was found to have breached the Equal Opportunity, Diversity & Inclusion Policy – Commission not satisfied there was a valid reason under s.387(a) – Commission found dismissals were harsh – held dismissal of applicants unfair – Commission considered remedy – considered compensation [Sprigg] – each applicant awarded 6 weeks’ compensation for lost wages.

Donato and Anor v Queensland Venue Co P/L

U2025/12023 and Anor

[2026] FWC 362

Simpson C

Brisbane

5 February 2026

Hall v Matic Transport P/L

TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – applicant was employed by respondent as PUD driver since November 2022 – respondent offered applicant position as Operations Admin Support Officer in 2024 – respondent held dismissal meeting with applicant and her Transport Workers’ Union (TWU) representative – applicant’s absence and inability to work from non-work-related injuries was discussed – respondent had ‘accommodated’ applicant’s medical absence for 6 months – applicant had provided respondent with medical certificates dated 2 July and 12 August 2025 – respondent notified applicant she would be terminated on 20 August 2025 – applicant spoke with her TWU representative following dismissal – TWU assisted applicant to prepare unfair dismissal application – TWU obtained ABN of respondent from respondent’s HR department and determined Western Australian Industrial Relations Commission (WAIRC) was correct jurisdiction to lodge application – TWU lodged unfair dismissal application on behalf of applicant with WAIRC within their 28-day timeframe – on 14 November 2025, respondent gave notice to WAIRC that it was a constitutional corporation and WAIRC was absent jurisdiction – on 24 November 2025, WAIRC application was withdrawn by TWU and new application was lodged with Commission – respondent observed applicant had until 10 September 2025 to lodge application within 21-day timeframe, given employment was terminated on 20 August 2025 – application was lodged 75 days outside statutory period – Commission considered s.394(3) of FW Act whether exceptional circumstances allow for further period for application to be made [Nulty; Stogiannidis] – Commission considered reason for delay under s.394(3)(a) – Commission noted previous decisions referred to credible, acceptable, or reasonable explanations for delay were in favour of granting an extension [Stogiannidis; Blake; Roberts] – Commission considered decisions in Palmer, Sydner, King v Gourmet Beef which presented similar circumstances – Commission viewed it was conduct of respondent, and to a lesser extent TWU, that contributed to period of delay – Commission considered ABN on payslips may have confused applicant – Commission considered applicant was entitled to rely on TWU acting on her behalf – Commission determined applicant was blameless for delay of lodgement – Commission considered TWU took reasonable steps to identify jurisdiction of respondent – Commission determined conduct of respondent contributed to period of delay – Commission determined there were no further steps applicant could have taken to ensure application was filed within time – Commission held extension of time should be granted.

U2025/18818

[2026] FWC 326

Beaumont DP

Perth

3 February 2026

Cooke v National Jet Express P/L

TERMINATION OF EMPLOYMENT – Merit – reinstatement – ss.387, 394 Fair Work Act 2009 – applicant employed as First Officer Pilot with respondent for 27 years – applicant dismissed following investigation into complaint made by Head of Flying Operations regarding comments applicant made about his personal life in a conversation with Crew Training Coordinator on 21 March 2025 – investigation resulted in allegations being substantiated and applicant was dismissed on basis of serious misconduct on 26 May 2025 – respondent submitted applicant breached respondent's Code of Conduct and Harassment Discrimination and Workplace Bullying Policy (HDB Policy) by engaging in harassing behaviour by destructively criticising or undermining staff publicly or privately and failing to behave in a professional manner at all times – respondent alleged applicant had pattern in lacking accountability for her actions – Commission considered respondent’s submissions of losing trust in applicant regarding an unsubstantiated prior incident where applicant alleged a colleague had cheated in an exam in July 2022 – applicant claimed comment was a joke – Commission found that limited documentary evidence regarding incident is sufficient to draw doubt regarding if applicant’s allegation was said as a joke – Commission noted respondent did not provide any evidence indicating applicant had been subject to a disciplinary investigation, nor that anything further was proposed apart than an assertion that a proposed group conversation would be had and the behaviours would ‘not be supported’ – Commission found respondent’s loss of trust in applicant based on unsubstantiated allegation of cheating was unreasonable – Commission noted respondent’s allegation regarding loss of trust with applicant following her lack of accountability to self-assess her fitness to fly following injury to her toe in or around February 2025 – Commission observed applicant presented a medical certificate by Designated Aviation Medical Examiner (DAME) who assessed applicant’s injured toe and deemed her fit to work and requested postponement of simulator assessment – respondent raised that applicant lacked accountability through her asserted competence in operating an aeroplane with injured toe, but not participating in a simulator session – Commission found applicant had provided a second medical certificate and applicant’s fitness to fly was relevantly assessed by DAME who are certified to make medical judgments on licenced pilots, noting respondent could have either provided further instruction to DAME, requested an additional medical examination or sought further medical opinion instead of emphasising that accountability belonged to applicant – Commission found attributing a lack of accountability to applicant due to a failure of her deeming herself unfit to fly was unreasonable – Commission considered whether dismissal was harsh, unjust or unreasonable – Commission considered whether there was a valid reason for dismissal in relation to comments made by applicant in relation to personal life of Head of Flying Operations – Commission considered evidence of respondent’s witnesses and preferred view of two respondent employees (Crew Training Coordinator and Resource Planner) – Commission accepted both their evidence regarding layout of office, that Resource Planner was in proximity at time comments were made, that they both consistently recalled context of conversation being discussions of a medical certificate, the simulator assessment and applicant expressing disparaging comments about Head of Flying Operations – Commission noted Resource Planner was not listening to entire conversation between applicant and regarded both witnesses as candid and honest – Commission found applicant had made the following comments to Crew Training Coordinator about Head of Flying Operations, being ‘he hates women’, ‘he is clearly having marital problems’, ‘he is obviously fighting with his wife’ and ‘even the Union Member agreed with these statements’ – Commission found applicant’s comments breached HDB Policy as comments were disparaging, conversation was held in an office where others could hear, concerned the Head of Flying Operations, drew on negative observations of Head of Flying Operations in his work environment which was destructively critical and undermining which constituted misconduct – Commission found applicant was notified of valid reason and provided with a meaningful opportunity to respond and engage representation, noting that applicant was denied an opportunity to respond to the previous historical allegations regarding the allegations of cheating and lack of self-accountability, however, that this did not mean applicant was denied procedural fairness due to gravity of alleged misconduct – Commission noted other relevant matters – Commission found respondent was compliant with enterprise Agreement despite applicant’s initial union representation not being initially provided with the four witness statements relied on to substantiate the allegation – Commission noted subsequent show cause letter contained sufficient particulars to enable applicant to effectively respond to allegation – Commission considered differential treatment between respondent’s differential application of HDB policy between applicant and Head of Flying Operations – Commission noted consideration of differential treatment must be exercised with caution in respect to determining whether cases were comparable and whether there was an absence of a proper basis to distinguish between the concerned employees [Darvell] – applicant submitted an incident where she complained about Head of Flying Operations making a comment referring to gendered simulator voice as a ‘bitch’ – Commission found respondent’s approach in encouraging applicant to self-resolve her complaint against Head of Flying Operations significantly differed to process and outcome of complaint about the applicant by Head of Flying Operations – noted comment made by Head of Flying Operations in relation to gendered simulator voice was condescending, disrespectful and denigrated women – Commission found inconsistent approach in respondent applying complaints procedure where Head of Flying Operations was offered an informal resolution approach when addressing applicant’s complaint about him, despite his conduct being reprehensible and not conduct that could be resolved through informal means, while only the applicant’s misconduct was addressed through formal approach – Commission determined that relationship between decision-makers involved in applicant’s termination and Head of Flying Operations did not inhibit respondent from conducting an independent review of applicant’s file, making an independent decision regarding appropriate disciplinary action or prevent them from making an informed and unbiased decision – Commission found Respondent gave significant weight to prior warnings issued in 2013 for inappropriate behaviour, a written warning for failing to be contactable in 2014 and a written warning regarding safety breach in 2020 in considering decision to dismiss applicant – Commission found respondent’s reliance on such warnings predating 2020 was unreasonably afforded a significant weight, especially as conduct had unfolded either 15, 12 or 11 years prior – Commission determined disparaging comments about Head of Flying Operations breached HDB Policy and was a valid reason for dismissal, irrespective of previous irrelevant warnings or conduct issues predating 2020 and respondent’s reliance on irrelevant information did not make decision to dismiss applicant unreasonable or unfair – Commission found while dismissal was not unjust or unfair, dismissal was significant and harsh, noting applicant had been employed by respondent for 27 years, and dismissal had a significant impact on applicant being sole provider of her family and noting emotional and financial impact on her and her child – Commission accepted respondent’s submissions regarding requisite chain of command in multi-crew safety critical environments and an employee disparaging and undermining Head of Flying Operations was not conducive to respect – Commission considered remedy – not persuaded reinstatement would pose an imminent threat to safety of respondent’s operations despite applicant’s misconduct – Commission unable to consider loss of trust and confidence between applicant and Head of Flying Operations, as he was not called for evidence – Commission found respondent bore onus of proving reinstatement was inappropriate – Commission highlighted respondent’s reliance on applicant’s conduct prior to 2020 was problematic, given prior warnings carried little weight given significant time lapsed – Commission found respondent’s reliance regarding applicant’s allegation of cheating and respondent’s unsubstantiated claim that applicant lacked accountability to self-assess her fitness to fly relied on fatally flawed examples and did not persuade Commission that reinstatement was inappropriate – Commission ordered reinstatement as appropriate remedy to take effect from 24 February 2026 with no break in period of employment – Commission did not make order for lost pay due to consequences from her own conduct – Commission noted that decision should not read to infer that an employee is prohibited from expressing dissatisfaction with their employer or leader within the business, but that there are likely appropriate avenues for expressing such views, and those views should objectively focus on offending behaviours premised upon objectivity, rather than targeting a colleague or leader on a personal basis.

U2025/10141

[2026] FWC 434

Beaumont DP

Perth

10 February 2026

So v Greek Orthodox Community of St George Brisbane

GENERAL PROTECTIONS – extension of time – s.365 Fair Work Act 2009 – applicant lodged general protections application at 00:00:04 (AEST) on 29 October 2025 – application lodged 4 seconds outside 21-day statutory timeframe prescribed by s.366(1)(a) – applicant argued he took ‘all required steps to file the application within time’ – applicant argued any delay reflected ‘post-payment system processing or confirmation activity’ and his application should not be dismissed – argued ‘minor system-generated delay’ not valid reason for dismissing application – Commission rejected attempt to blame ‘processing delay’ – noted an application only lodged ‘[a]fter an acknowledgement email is received’ per rule 17(2)(c) of the Fair Work Commission Rules 2024 and s.14A(1)(a) of the Electronic Transactions Act 1999 (Cth) – applicant also provided system-generated tax invoice with 28 October 2025 date – Commission sought internal clarification regarding discrepancy between tax invoice and recorded date/time – noted invoices used Coordinated Universal Time (UCT) which is 10 hours behind AEST – application found to be lodged out of time – Commission considered whether to grant extension of time, taking into account exceptional circumstances under s.366(2) – Commission emphasised ‘high bar’ for extending time – found processing delays not reason for late application – rather applicant ‘simply waited, literally, until the last second’ – noted applicant aware of 21-day timeframe – found applicant demonstrated ‘lack of diligence’ when lodging application – observed Commission ‘not allowed to grant extensions of time simply because the lodgement was “close enough” to the end of the statutory timeframe’ – in considering fairness, Commission observed application in Luppino dismissed under similar circumstances – noted role of Commission to apply provisions in the FW Act, and not to go about ‘dispensing fairness in any way it sees fit’ – found no exceptional circumstances as basis to accept late application – extension of time not granted – application dismissed.

C2025/10770

[2026] FWC 390

Lake DP

Brisbane

9 February 2026

Stephens v Citic Pacific Mining Management P/L

TERMINATION OF EMPLOYMENT – costs – ss.394, 400A Fair Work Act 2009 – applicant was a FIFO worker and failed random drug test at start of a swing – applicant filed evidence after due date and on evening before hearing indicated all witnesses required for cross-examination – applicant discontinued application approximately 37 minutes before scheduled hearing time – respondent claimed it incurred costs because of unreasonable acts and omissions of applicant – respondent submitted unreasonable conduct to be (1) conduct associated with preparation for hearing; and (2) decision not to discontinue application earlier/decision to discontinue application so late in process – respondent submitted late discontinuance was indication of applicant’s intention over previous days to inconvenience it and cause it to incur costs of preparing for case applicant had no intention to run – Commission found reply materials filed by applicant at 2.00am must have taken considerable thought, effort and time to complete – Commission found applicant’s failure to respond to queries and his tardiness in filing materials was unreasonable but not satisfied these actions caused respondent to incur costs unnecessarily – Commission found discontinuance so close to commencement of hearing was unreasonable conduct but not satisfied this conduct caused respondent to incur costs – Commission held respondent incurred costs properly defending claim and applicant’s conduct was unreasonable, but not satisfied it caused respondent to incur costs it would not otherwise have incurred – costs application dismissed.

U2025/14311

[2026] FWC 515

Easton DP

Sydney

18 February 2026

Lewis v Essential Energy

TERMINATION OF EMPLOYMENT – Misconduct – reinstatement – ss.387, 394 Fair Work Act 2009 – applicant employed as Powerline Worker at Leeton Depot of respondent – applicant involved in altercation with colleague on 20 February 2025 – applicant believed he was suffering from an anxiety attack at the time, called colleague a ‘fucking dog’ and needing ‘a punch in the head’ – applicant’s father recently diagnosed with cancer and aunt in palliative care – applicant dismissed on 14 May 2025 for a serious breach of respondent’s Code of Conduct and Respectful Workplace Procedure – applicant had no prior documented history of aggression in workplace – applicant sought reinstatement – Commission considered whether dismissal was harsh, unjust or unreasonable – found incident on 20 February 2025 out of character and not premeditated – no medical evidence presented supporting finding that applicant’s behaviour was involuntary – Commission found alleged behaviour sufficiently substantiated and satisfied of valid reason for dismissal of applicant under s.387(a) – found applicant had been notified of reason for termination – found applicant given opportunity to respond to reason by way of written responses provided on 11 March and 24 April 2025 – Commission found unlikely that respondent gave much weight to mitigating personal circumstances in explaining applicant’s behaviour and therefore failed to give applicant opportunity to address concerns – Commission considered other matters under s.387(h) – Commission found that applicant’s conduct arose from incident where colleague was abusive towards applicant four years earlier – Commission observed a reasonable employer faced with long serving employee engaging in uncharacteristically poor behaviour would ordinarily question whether there were underlying reasons – reasonable employer would draw common sense connection between employee’s difficult circumstances and uncharacteristic poor behaviour – respondent’s failure to do so weighed in favour of dismissal being unfair – respondent applied ‘one size fits all approach’ to applicant’s conduct which ignored range of ways people deal with stressful situations – respondent ignored applicant’s response to show cause which stated he did not know he was struggling with mental health – no indication that respondent sought information about relationship between applicant and colleague, weighed in favour of finding dismissal was unfair – applicant and colleague had difficult relationship over years – colleague had acted in abusive way to applicant in 2020 – complaints made about each other over the years – applicant and colleague’s positive behaviour toward one another in hearing demonstrated applicant receiving mental health treatment – evidence given that if applicant and colleague do not work together, they get along well and had worked together after incident without issue – culture at workplace created environment where professional boundaries blurred by personal relationships – familiarity resulted in non-professional behaviour creeping into workplace, tolerated by management – Commission’s findings under ss.387(b)-(d) weighed in favour that dismissal not unfair – considered other matters under s.387(h) – took into account long and satisfactory work performance of applicant weighed in favour of conclusion that dismissal of applicant was harsh, unjust and unreasonable – seriousness of applicant’s conduct outweighed by procedural deficiencies, applicant’s period of service, applicant’s difficult personal circumstances, adverse financial consequences of dismissal, applicant’s genuine expressions of remorse, and unlikely recurrence of conduct given conduct uncharacteristic and applicant seeking mental health treatment – Commission considered remedy – Commission found reinstatement appropriate – ordered reinstatement within 21 days to position of applicant prior to dismissal – orders to maintain continuity of service made – considered compensation – 20% reduction in compensation applied due to applicant’s breach of Code of Conduct – order for reinstatement and compensation issued.

U2025/9445

[2026] FWC 252

Wright DP

Sydney

30 January 2026

Knott v Tru Ninja P/L

TERMINATION OF EMPLOYMENT – Merit – compensation – ss.387, 394 Fair Work Act 2009 – applicant was employed as part-time Supervisor and Administrator with respondent since June 2024 – on 9 October 2025, applicant dismissed for taking compassionate leave after family death – on 19 September 2025, applicant’s grandmother passed away unexpectedly – applicant took 3 days leave from 19 September to 22 September – on 22 September 2025, applicant informed respondent she would be unable to work for the rest of the week and intended to use bereavement and personal leave – respondent contacted applicant on multiple occasions during grieving period on compassionate leave – respondent repeatedly requested documentary proof of reasons for compassionate leave during period of grieving – on 22 September 2025, respondent requested documentation from applicant to support leave request – applicant at that time was unable to provide supporting documentation – further communication made on 23 September 2025 between applicant and respondent discussing request for documentation – tone of calls caused concern for respondent – on 24 September 2025, respondent issued further email requesting supporting material, including death certificate, and additional documentation from applicant – in response applicant’s mother spoke on phone with respondent stating it was too soon after death of applicant’s grandmother to provide the requested material – respondent described phone call as ‘threatening’ – accounts of phone call differ between parties – applicant’s cousin also emailed respondent that same day confirming death in the family – on 25 September 2025, respondent emailed applicant repeating request for evidence and proposing annual leave to be utilised as an alternative – applicant provided medical certificate and police event number as interim evidence of death – on 26 September 2025, respondent requested additional evidence – respondent stated compassionate leave to be paid upon receipt of evidence requested – on 29 September 2025, applicant stated she had right to disconnect from work and provided funeral notice – respondent rejected applicant’s notion of her right to disconnect – respondent issued warning of disciplinary action if applicant failed to comply with lawful directions – applicant was notified of a formal meeting scheduled for 9 October 2026 – on 2 October 2025, applicant was removed from work WhatsApp group – on 9 October 2025, applicant attended disciplinary meeting – on 10 October 2025, applicant requested official termination letter and payment of four weeks’ notice – respondent did not provide payment in lieu, since dismissal was for serious misconduct – respondent stated reason for dismissal was communications between applicant’s mother and members of staff – respondent concerned about interference of third party in respondent business affairs and applicant’s refusal to respond – Commission considered whether dismissal was harsh, unjust or unreasonable under s.387 – satisfied no valid reason for dismissal under s.387(a) – Commission found communication from applicant’s mother, applicant’s cousin and applicant did not amount to communications that could be considered serious misconduct on part of applicant – Commission found applicant’s conduct did not irreparably damage employment relationship or breach any other criteria outlined under s.387 – satisfied applicant was not notified of a valid reason for her dismissal under s.387(b) – Commission found issuing warning on 8 October 2025, one day before disciplinary meeting then dismissing applicant did not provide applicant with opportunity to respond to reasons for dismissal – satisfied applicant unfairly dismissed – remedy considered – found applicant would have continued employment until around mid-2026 – amount reduced after considering business size, nature of employment, it being a part-time job during studies and contingency that studies were completed in December 2025 – compensation for 12 weeks’ pay at $7,596 and superannuation of $911.52 ordered under s.392.

U2025/16425

[2026] FWC 298

Slevin DP

Sydney

3 February 2026

Dale-McCormick v Sleepeezee Bedding Australia P/L

TERMINATION OF EMPLOYMENT – Merit – compensation – ss.387, 394 Fair Work Act 2009 – applicant worked as a heavy combination truck driver for respondent – on 7 May 2025, applicant returned positive result for cannabis on a preliminary roadside test – this occurred following applicant returning from work from his weekend at 6.30pm on 5 May – applicant admitted to consuming cannabis on weekend prior (either late on Saturday 3 May or early Sunday 4 May) – on 9 May, respondent drafted termination letter and advertised for a Medium Rigid/Heavy Rigid Truck driver – on 13 May, applicant attended meeting with respondent – little evidence of content of meeting aside from respondent providing applicant with termination letter dated 9 May – applicant asked for copy of drug and alcohol policy (Policy) – respondent contended applicant had breached Policy and caused serious and imminent risk to health and safety of other road users – no preliminary jurisdictional issues – Commission considered whether dismissal was harsh, unjust or unreasonable under s.387 – Commission found respondent’s reason for dismissal had no factual basis – no evidence applicant was impaired by substance in roadside test – Policy was of limited scope and prohibited being ‘under the influence’ – Commission found respondent had not demonstrated applicant was ‘under the influence’ at relevant time – Commission found no valid reason for dismissal, applicant not notified, applicant not provided opportunity to respond – Commission held dismissal was harsh and unreasonable – Commission considered remedy – found reinstatement not appropriate and order for payment of compensation appropriate – Commission considered likely applicant would have continued in employment for further 6 months, noting some dissatisfaction between parties in relationship – considered applicant’s mitigation attempts reasonable – considered appropriate to reduce compensation amount by 30% as applicant’s poor decision making in consuming cannabis contributed to decision to dismiss him, although did not rise to level of misconduct – ordered compensation of $31,304 gross (less taxation) and superannuation of $3,600.

U2025/8710

[2026] FWC 347

Clarke C

Melbourne

9 February 2026

Australian Capital Territory
Level 3, 14 Moore Street
Canberra 2600
GPO Box 539
Canberra City 2601
Tel: 1300 799 675
Fax: (02) 6247 9774
Email: canberra@fwc.gov.au

New South Wales

Sydney
Level 11, Terrace Tower
80 William Street
East Sydney 2011
Tel: 1300 799 675
Fax: (02) 9380 6990
Email: sydney@fwc.gov.au

Newcastle
Level 2, 130 Parry Street,
Newcastle, 2302
PO Box 805,
Newcastle, 2300

Northern Territory
10th Floor, Northern Territory House
22 Mitchell Street
Darwin 0800
GPO Box 969
Darwin 0801
Tel: 1300 799 675
Fax: (03) 9655 0420
Email: darwin@fwc.gov.au

Queensland
Level 14, Central Plaza Two
66 Eagle Street
Brisbane 4000
GPO Box 5713
Brisbane 4001
Tel: 1300 799 675
Fax: (07) 3000 0388
Email: brisbane@fwc.gov.au

South Australia
Level 6, Riverside Centre
North Terrace
Adelaide 5000
PO Box 8072
Station Arcade 5000
Tel: 1300 799 675
Fax: (08) 8410 6205
Email: adelaide@fwc.gov.au

Tasmania
1st Floor, Commonwealth Law Courts
39-41 Davey Street
Hobart 7000
GPO Box 1232
Hobart 7001
Tel: 1300 799 675
Fax: (03) 6214 0202
Email: hobart@fwc.gov.au

Victoria
Level 4, 11 Exhibition Street
Melbourne 3000
PO Box 1994
Melbourne 3001
Tel: 1300 799 675
Fax: (03) 9655 0401
Email: melbourne@fwc.gov.au

Western Australia
Level 12,
111 St Georges Terrace
Perth 6000
GPO Box X2206
Perth 6001
Tel: 1300 799 675
Fax: (08) 9481 0904
Email: perth@fwc.gov.au