Executive terminated by letter with no explanation secures compensation despite employer silence
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application where an employer completely failed to participate in proceedings, leading to a determination made entirely in their absence.
The case involved a chief executive officer (CEO) who was terminated without warning or explanation after more than four years of service.
The worker argued that his dismissal was harsh, unjust and unreasonable, claiming he had never received any performance reviews, key performance indicators, or warnings during his employment.
He maintained that the termination letter provided no reason for his dismissal and that he was denied basic procedural fairness throughout the process.
The worker was appointed as chief executive officer of an Aboriginal corporation on 12 February 2020 and was terminated by correspondence from the chairman on 24 October 2024.
The termination occurred without any prior warnings, performance reviews, or key performance indicators being established during his four-year tenure.
The worker also claimed he had not been paid since the last week of February 2024, though this payment issue was outside the FWC's jurisdiction for unfair dismissal purposes.
The termination letter was brief and provided no explanation for the dismissal. The chairman's correspondence simply stated: "Please find attached the outcome of the Director's meeting held 22nd October, 2024 regarding termination of your employment effective immediately with [the Aboriginal corporation] and [the associated corporation]."
Following the termination, the worker lodged an unfair dismissal application with the FWC within the required 21-day timeframe. However, the employer failed to engage with the FWC throughout the entire process, despite numerous attempts at contact spanning several months.
The employer also failed to file the mandatory employer response form, which is required when responding to unfair dismissal applications.
The FWC's staff made multiple phone calls to the employer's landline, which was shared with a local store at the same premises. Representatives at the store consistently advised that no one from the corporation was available, with various excuses provided including illness and absence from the office.
The FWC's efforts included contacting a key contact person who was identified during initial proceedings, though she was frequently unavailable.
On one occasion, FWC staff were told that the contact person "was unwell and would not be coming into the office that day." These communication difficulties persisted throughout the process, with the FWC leaving multiple voice messages that went unanswered.
The FWC analysed the dismissal against the statutory criteria outlined in section 387 of the Fair Work Act 2009.
This section requires the FWC to consider various factors including whether there was a valid reason for dismissal, whether the worker was notified of the reason, and whether they were given an opportunity to respond to allegations.
The evidence revealed significant procedural failures by the employer. The worker provided unchallenged evidence that he was not provided with any key performance indicators for his role, nor were there any performance reviews undertaken during his employment.
Most importantly, the worker was not subject to any warnings about his performance throughout his four-year employment period.
The FWC found that "[the worker] was not provided with any reason for his termination. As a result, the reason for [the worker's] termination is logically, not valid."
The FWC applied established legal principles regarding unchallenged evidence, particularly relevant given the employer's complete absence from proceedings.
When one party fails to participate in proceedings, the FWC can rely on evidence from the participating party, provided that evidence is credible and not contradicted by other facts.
The FWC worked through each criterion under section 387 of the Fair Work Act 2009, finding failures across multiple areas. The worker was not provided with a valid reason for dismissal, was not notified of any reason, and was not given an opportunity to respond.
The FWC noted: "The absence of a modicum of procedural fairness for [the worker] does not satisfy this statutory entitlement" to a fair go under the Act.
While reinstatement is typically the primary remedy under the Fair Work Act 2009, the FWC determined that compensation was more appropriate.
The FWC applied an established formula to calculate appropriate compensation, considering factors such as the period the worker would likely have remained employed, any earnings since termination, and appropriate contingencies for uncertainties.
The FWC concluded: "I order that [the worker] be paid $17,999.92 less appropriate taxation, plus superannuation."
This amount reflected 11.7 weeks' pay after applying a 10% contingency discount, based on the worker's annual salary of $80,000.
