Applicant v Brief Access Pty Ltd [2026] FWC 4165 — 26 October 2026

A recent Fair Work Commission decision for Garry Dircks of Just Relations highlights an important principle: even where an employer has genuine concerns about workplace safety, it must still establish a valid reason for dismissal and provide the employee with a fair opportunity to respond.

Background

The Applicant was employed as a leading-hand scaffolder, earning $120,000 plus superannuation. His employer had concerns about scaffolding safety, including deficiencies at work sites in Brunswick and Geelong, as well as damage to a company vehicle that had not been promptly reported.

The employer relied on the Small Business Fair Dismissal Code when terminating his employment.

Why the dismissal was unfair

The Commission accepted that there were serious concerns about The Applicant ‘s work at the Brunswick site. The Applicant himself accepted responsibility for deficiencies in that work.

However, the employer’s allegations concerning the Geelong site were not adequately established. The evidence did not establish who had installed the defective components, and the employee was not given a meaningful opportunity to respond to the relevant photographs and allegations.

The site manager whose evidence was potentially important did not attend the hearing.

The Commission also considered the employer’s handling of the dismissal process. A heated meeting and the absence of a proper opportunity to answer the allegations weighed against a finding that the dismissal was fair.

Although the employer had genuine safety concerns, that did not automatically establish that the dismissal was justified. The Commission found that the Small Business Fair Dismissal Code had not been complied with and that the dismissal was unfair.

Compensation

Reinstatement was considered inappropriate. The Commission assessed that The Applicant would likely have remained employed for another six weeks, representing $13,842 in estimated lost earnings.

It then reduced compensation by 25% to account for misconduct that contributed to the dismissal, including the Brunswick scaffolding deficiencies and the failure to report vehicle damage.

The final compensation award was $10,381.50 gross, subject to normal taxation.

Lessons for employers and employees

This decision reinforces several practical points:

• Employers must prove their allegations. Genuine concerns are not a substitute for evidence establishing the reason for dismissal.
• Employees must have a fair opportunity to respond. Relevant evidence and allegations should be put to the employee before a decision is made.
• Investigations matter. Where important witnesses or evidence are missing, the employer may struggle to establish its case.
• Employee misconduct can reduce compensation. A finding of unfair dismissal does not necessarily mean the employee receives full compensation.

For employees facing dismissal, the key question is not simply whether the employer had concerns, but whether the stated reason was established and the process was fair.

Just Relations assists employees with unfair dismissal applications and representation before the Fair Work Commission.