FWC rules employer's recruitment activity didn't amount to employee termination
The Fair Work Commission (FWC) recently dealt with a case where a worker claimed unfair dismissal after discovering a job advertisement he believed was for his own position.
The worker argued that finding this advertisement was effectively a dismissal, despite receiving no formal termination notice. He claimed the timing was suspicious—coming just after a meeting about a workplace incident—and that the advertisement specifically mentioned his workplace location where he was the sole person in his role.
The employer denied any dismissal occurred, maintaining they routinely advertised for similar positions and that the worker's direct manager wasn't even aware of the advertisement.
The worker filed an unfair dismissal application claiming he was dismissed on 15 May 2024 when he discovered an advertisement for what he believed was his job. The employer, a healthcare provider, denied any dismissal took place and argued alternatively that the application was lodged outside the statutory timeframe.
Section 386 of the Fair Work Act 2009 defines dismissal as either termination on the employer's initiative or resignation forced by employer conduct. The worker claimed his employment was terminated on his employer's initiative, with no evidence of resignation.
For a dismissal to exist under section 386(1)(a), the employment relationship must be terminated by employer action not agreed to by the employee. The test examines whether employer action was the "principal contributing factor" resulting in employment termination.
On 11 March 2024, the worker alleged his manager was verbally aggressive toward him, leading to a meeting with employer representatives on 14 May 2024 to discuss the incident.
The employer prepared a letter dated 15 May 2024 addressing misconduct allegations against the worker, stating that "if proven, this misconduct may result in a written warning, a first and final written warning or the termination of your employment." This letter was never actually sent to the worker.
On 15 May 2024, the employer advertised a physiotherapist position at locations including Teralba, where the worker was employed. The worker believed this was the employer's attempt to replace him, particularly because the advertisement specifically mentioned Teralba, where he was the sole physiotherapist at an aged care facility.
The worker's manager had no knowledge of the advertisement. The employer's chief operating officer testified that they advertised "constantly" for additional staff, particularly physiotherapists and allied health professionals, and denied the advertisement was for the worker's specific role.
The worker continued working and being paid by the employer from 16-23 May 2024, followed by a period of annual leave for which he was also paid.
On 4 June 2024, the worker wrote to the employer's HR manager expressing concerns about how various workplace issues had been handled. He mentioned checking with the Fair Work Ombudsman and the FWC about several workplace matters including "duty of care," "psychosocial hazards," "reasonable management actions," "unfair dismissal," and "confidentiality."
The same day, he also requested an explanation about the job advertisement. According to evidence from the chief operating officer, she instructed the HR manager to tell the worker that the company advertises for physiotherapists regularly and the advertisement was not for his role. However, the FWC found insufficient evidence that this message was actually conveyed to the worker.
On 6 June 2024, the worker saw his general practitioner, reporting that a workplace incident had caused significant mental health issues. The doctor diagnosed him with adjustment disorder and provided medical certificates declaring him unfit for work from 6 June to 2 October 2024.
On 17 June 2024, the worker filed a workers' compensation claim, which was approved, and he continued receiving these payments throughout the proceedings.
The HR manager sent supportive emails to the worker on 20 and 27 June 2024, indicating their willingness to accommodate his return to work when able. The 20 June email stated: "I want to assure you that we are here to support you during this challenging time. I'll be working closely with our team to explore all available options for assistance and to ensure we are providing you with the necessary support. We will investigate any workplace adjustments or accommodations that might help ease your transition when you are ready to return to work."
In July 2024, the worker was interviewed regarding his workers' compensation claim. In this interview, he made several statements indicating his belief that he had been dismissed, including:
"On 15 May 2024, I noticed [the employer] had advertised on Seek, for a Physiotherapist role at Waterview. I saw the ad one hour after it was posted during my lunch break. I was the only Physiotherapist employed there by [the employer]... so I concluded I was being terminated and replaced."
Later in the same interview, he also stated: "The day after the facility meeting with the senior Waterview management, with no communication with me from my employer [the employer], a job advertisement was placed on Seek to replace me by my company. I felt I had no support, there was no discussion, and I just felt used and abused. This was a deeply stressful issue for me on multiple levels. To me, this was an attempt at unfair dismissal."
Between July 2024 and January 2025, the worker attended 14 appointments with a clinical psychologist, who diagnosed him with "adjustment disorder with mixed anxiety and depressed mood, following ongoing stressors within his workplace between 2023 and 2024."
By 22 October 2024, the worker's general practitioner certified he was fit to work part-time (eight hours per day, three days a week), but specifically advised this should be with a different employer due to the worker's lack of trust in his current employer.
In November 2024, the employer tried to arrange a return-to-work meeting through its Return-to-Work Coordinator, but the worker was unaware of this and did not participate. A planned mediation between the worker and the employer was cancelled by the employer the day before it was scheduled, as the worker's healthcare providers had advised against his return to the workplace.
The worker filed his unfair dismissal application on 18 December 2024, having not performed work for the employer since 23 May 2024, though he remained on the payroll system and continued receiving workers' compensation payments.
Throughout this period, the worker had not received any written or oral communication from the employer regarding termination of his employment. The employer maintained they were willing to have him return to work when medically cleared, but the worker did not wish to resume his role with them.
The FWC did not accept the worker's claim that he was dismissed on 15 May 2024, noting he continued working for and being paid by the employer until 23 May 2024, followed by pre-approved annual leave.
The FWC explained: "I do not accept [the worker]'s contention that he was dismissed by [the employer] on 15 May 2024. There is no dispute that [the worker] continued working for, and being paid by, [the employer] in the period from 15 May to 23 May 2024. [The worker] then took pre-approved annual leave for a week. His employment with [the employer] clearly continued through this period."
The Commission found no evidence of any action by the employer that resulted in employment termination: "I am satisfied that [the worker]'s employment with [the employer] was not terminated on [the employer]'s initiative. There was no action on the part of [the employer] which was the principal contributing factor which resulted, directly or consequentially, in the termination of the employment of [the worker]. [The employer] did not communicate by its actions or words that [the worker] was terminated or dismissed."
The FWC concluded that the employer was not planning to terminate the worker's employment when advertising the position: "I find, on the balance of probabilities, that [the employer] was not planning to terminate [the worker]'s employment and replace him when its internal recruiters advertised for the position of physiotherapist on 15 May 2024. [the worker]'s manager was not aware of the advertisement. It would be very unlikely for [the employer] to have a plan to replace [the worker] if his manager was not aware of the job advertisement."
The Commission dismissed the unfair dismissal application, stating: "For the reasons given, [the worker] was not dismissed within the meaning of s 386 of the Act. He was therefore not unfairly dismissed by [the employer]."
