Fortnightly newsletter
Workplace Law is ever-changing, whether through decisions of the courts and commissions or changes to the many pieces of State and Federal legislation that regulates the relationship between Employee and Employer. We’ve put together this fortnightly update to assist by giving you easy to understand snapshots of some of the recent changes that affect Employers.
‘Missing’ child not reason for dismissal
A daycare educator was compensated for being sacked after she failed to notice a child going ‘missing’ for 10 minutes. While other employees also failed to notice the child escaping to the outdoor play area, the educator was the only one dismissed due to receiving a written warning for inadequate supervision 10 months prior.
The Fair Work Commission (FWC) held that the educator’s conduct was not serious enough to warrant dismissal. Specifically, the educator’s failure to notice the missing child was due to being ‘busy performing other childcare duties’ and not from negligence or a deliberate failure to supervise the children. The FWC noted its decision would likely have been different had she been caught looking at her phone or having non-work-related chats with other employees when the child disappeared.
Despite the high standards of care required in childcare services, the FWC did not view this as a reason to issue ‘harsh’ disciplinary action whenever issues such as a child escaping arose. As such, the educator was ordered to be compensated for unfair dismissal.
Source: Toni Ralston v LZS Pty Ltd [2026] FWC 3204 (21 August 2026)
Can you afford that redundancy? The FWC on director liability
Two directors were ordered to pay the full redundancy payments owed to their former employees, despite the directors applying to the FWC claiming doing so would lead to the insolvency of the company. The directors owed $190,000 in redundancy to 10 of their former non-award covered employees, and the directors applied to the FWC under s.120 of the Fair Work Act 2009 (Cth) (FW Act).
The FWC held it was not obligated to consider ‘other broader considerations’ such as the potential impact on remaining employees. The FWC considered the directors’ own financial capacities to personally fund the redundancy payments, in the event that the company could not, commenting it was ‘not the role of the [FWC] to protect the personal assets of directors’. The full redundancy payments owed were held to be payable.
Source: Application by R2S Medical & Emergency Response Pty Ltd [2026] FWC 3547 (16 September 2026)
Employee insults awarded with ‘fairness’
A sacked engineer was awarded $14,000 despite the FWC agreeing his insulting and offensive text messages were ‘a valid reason’ for dismissal.
On his day off, the engineer sent insulting texts regarding his manager to other employees. After handing in his resignation notice, the engineer later sent texts encouraging other employees to resign. These texts were viewed on an employee’s work monitor and shared with management, who subsequently dismissed the engineer without further notice.
Despite being sent on his day off, the FWC found the conduct was ‘sufficiently connected’ to the engineer’s employment and formed a breach of his employment contract. However, the company’s failure to raise these issues with the engineer was significant in the FWC’s decision. Specifically, the company did not hold a meeting or discuss the texts with the engineer before his dismissal, resulting in the engineer having ‘no idea’ the company had viewed them. Accordingly, the engineer was found to have been denied procedural fairness or a chance to show ‘remorse’ and thus was unfairly dismissed.
Source: Tyler Monaghan v Endacom Pty Ltd [2026] FWC 3507 (15 September 2026)
Line between casual and part-time grows thin for teachers
In a further successful casual conversion case, a TAFE teacher was found to be a part-time employee as a consequence of not meeting the definition of ‘casual employment’. The teacher (who was employed on a casual basis for three years) provided TAFE with a written notice that he did not believe he met the requirements for casual employment, which after being rejected by TAFE, led to a dispute before the FWC. The FWC considered the practical relationship between the employer and employee when the written notice was submitted, rather than the terms of the employment contract.
Relevant matters considered included that the teacher’s classes were pre-scheduled across the semester, and that TAFE was unable to refuse to offer these classes to the teacher without it disrupting the school. Further, the pre-scheduled class times suggested the teacher was engaged in ‘a regular pattern of work’, even when the teacher was not offered work between semester breaks.
As such, the FWC held that the teacher was an ‘important, regular and ongoing part’ of TAFE and did not meet the definition of casual employment. Accordingly, the FWC viewed it as fair and reasonable for the teacher to be converted to part-time.
Source: Flavio Fedele v Technical and Further Education Commission [2026] FWC 3338 (2 September 2026)
We hope you have enjoyed this fortnight’s employment law news. See you next fortnight!
