Farah v Arbias Limited [2026] FWC 2409

Employee awarded more than $12,000 after unfair dismissal following disputed role change

The Fair Work Commission found that a disability services provider unfairly dismissed a specialist case manager after directing him to move into a substantially different role. The employer claimed he had failed to return to work, but the Commission found that he had been trying to negotiate arrangements for his return and had not abandoned his employment.

Case details

Case: Ali Farah v Arbias Limited [2026] FWC 2409
Commission: Fair Work Commission
Member: Commissioner Redford
Decision: 30 July 2026
Location: Melbourne
Hearing: 29 June 2026
Legislation: Fair Work Act 2009, s394
Outcome: Unfair dismissal established; compensation of $12,174.32 gross plus $1,460.92 superannuation ordered.
Representation: G. Dircks, agent for the employee; Mr Shaw, counsel for the employer.

Background

The employee commenced employment with Arbias Limited in September 2019 as a Specialist Case Manager working on Transport Accident Commission (TAC) matters.

His responsibilities included assessing client needs, coordinating rehabilitation and support services, liaising with medical and allied health professionals, dealing with TAC representatives and assisting clients with return-to-work and independence goals.

After approximately six and a half years of employment, his employment was terminated in March 2026.

The dispute arose following a deterioration in the employment relationship and the employer’s decision to move the employee away from his specialist case management position into a Disability Support Worker role involving direct client-facing support.

The employee considered the proposed position substantially different from the role he had been employed to perform. It involved less complex work and, in his view, was an inferior position.

The proposed role change and stand-down

In February 2026, the employer directed the employee to undertake the Disability Support Worker role.

The employee objected to the proposed change. The employer subsequently relieved him from duty, apparently without pay, while the dispute continued.

The employer maintained that it was consulting with the employee about the proposed change under clause 8 of the Social, Community, Home Care and Disability Services Industry Award 2010. However, the Commission identified an obvious difficulty with this position: the employee was supposedly being consulted about the change while simultaneously being directed to undertake the new role.

Following a Fair Work Commission dispute conciliation on 2 March 2026, the employer offered the employee two options: accept the alternative role or agree to a separation arrangement.

The employee indicated that he preferred to remain employed. The employer treated this as acceptance of the alternative position.

The employee’s attempt to return to work

On 10 March 2026, the employee wrote to the employer explaining that the circumstances surrounding his suspension, warnings, investigation and proposed redeployment had caused significant work-related stress and affected his health and wellbeing.

He confirmed that he remained committed to returning to work and cooperating with the employer.

However, he requested arrangements that would allow him to return safely, including the possibility of working from home while further allegations were investigated.

The employer rejected the request, explaining that the proposed Disability Support Worker role required direct client-facing duties.

The employer subsequently dismissed the employee, asserting that he had failed to return to work.

What was the actual reason for dismissal?

The Commission examined the evidence of the employer’s CEO, Mr Eyre, and Executive Manager, Client Services, Mr Nuzzo.

Both witnesses maintained that the reason for dismissal was the employee’s failure to return to work.

The employer attempted to distinguish this from abandonment of employment, but the evidence revealed considerable uncertainty about when the termination decision had actually been made and what had prompted it.

The termination letter was dated and sent on 17 March 2026, although it purported to make the termination effective from 16 March.

The Commission found that the employee had not abandoned his employment. His correspondence with the employer only days before the dismissal demonstrated that he was attempting to negotiate arrangements for his return.

Commissioner Redford observed that this conduct was inconsistent with an assertion that the employee had refused to return to work.

The Commission also considered that the employee’s objection to undertaking a substantially different role was understandable in the circumstances. The proposed transfer had not been properly explained or justified, and the employee was entitled to take issue with being moved away from his contractual position.

Previous warnings and allegations of misconduct

The employer also relied on events involving an October 2025 workplace meeting, subsequent warnings and allegations concerning discrepancies between the employee’s billing activity and vehicle telematics information.

The employee had been given a warning following a meeting on 30 October 2025. He was later subjected to an investigation concerning the same incident and received another warning in February 2026.

The Commission considered the evidence about the October meeting incomplete. It found that the employee probably overstepped the bounds of professional workplace communication because he was upset, but considered the employer’s suggestion that other participants had been unsafe to be overstated.

Importantly, the conduct was not sufficiently serious to justify dismissal.

The Commission was also critical of the employer’s handling of the alleged billing discrepancies.

The allegations suggested that the employee had arranged for TAC to be billed for activities exceeding those actually provided. However, the employer’s evidence was largely hearsay, and the relevant fleet manager was not called to give evidence.

Commissioner Redford found:

“The evidentiary case provides no basis whatsoever to conclude that the Applicant engaged in any improper billing or other activity with respect to TAC or any other of the Respondent’s clients.”

The CEO also conceded that the allegations had not been properly put to the employee so that he could respond. They were not the reason for the dismissal.

Nevertheless, the employer had reported its suspicions to TAC and the Victorian Disability Workers Commission before properly obtaining the employee’s response.

The Commissioner considered this conduct particularly unfair and potentially damaging to the employee’s future employment prospects.

The Commission’s findings on unfair dismissal

Under s387 of the Fair Work Act, the Commission must consider whether the dismissal was harsh, unjust or unreasonable.

No valid reason for dismissal

The employer’s stated reason was that the employee had failed to return to work.

The Commission rejected that explanation. The employee had communicated his intention to return and had sought to negotiate suitable arrangements. There was no sound, defensible or well-founded basis for concluding that he had refused to return or abandoned his employment.

The Commission also found that neither the October meeting nor the alleged billing discrepancies provided a valid reason for dismissal.

Failure to notify the employee and provide an opportunity to respond

The employee was not told before the termination decision that his alleged failure to return to work might result in dismissal.

He was not given an opportunity to respond to that allegation before the decision was made.

Commissioner Redford emphasised that notification of the reason for dismissal must occur before the decision is made, so the employee has a genuine opportunity to influence the outcome.

The employer’s failure to follow this process weighed strongly in favour of finding the dismissal unfair.

Procedural fairness and employer conduct

The Commission also considered the employer’s decision to stand the employee down without pay and its handling of the allegations against him.

The employer’s approach, including reporting untested suspicions to external organisations before properly hearing the employee’s side, was considered capricious and unfair.

The Commission found that the manner in which the employer treated the employee had worsened the personal and economic consequences of the dismissal.

Having considered all the relevant factors under s387, Commissioner Redford concluded that the dismissal was harsh, unjust and unreasonable.

Why reinstatement was refused

The employee sought reinstatement.

The Commission recognised that reinstatement is the primary remedy under the unfair dismissal provisions and considered the principles discussed by the High Court in Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29.

However, Commissioner Redford concluded that reinstatement was inappropriate.

There were three principal concerns:

Health and capacity to return: The employee had raised concerns about his health and wellbeing and whether he could safely return to the workplace without adjustments.
Breakdown in working relationships: There was significant acrimony between the employee and senior management, particularly Mr Nuzzo and Mr Eyre. Formal complaints had been made by both sides, and the Commission considered the deterioration in trust and confidence to be more than ordinary workplace friction.
Damage to the TAC relationship: The employer’s allegations had potentially damaged the employee’s reputation with TAC, the principal client associated with his specialist role.

The employee proposed that reinstatement could be achieved by placing him in another case management position or an alternative role on no less favourable terms.

The Commission was not satisfied that the evidence established a suitable alternative position or that reinstatement to another role would resolve the underlying difficulties.

Consequently, compensation was considered the appropriate remedy.

Compensation of $12,174.32 plus superannuation

The Commission applied the established Sprigg formula to calculate compensation.

The employee’s ordinary weekly remuneration was $1,822.86.

Commissioner Redford considered that, had the dismissal not occurred, the employment would probably have continued for at least another three months, notwithstanding the deterioration in workplace relationships.

This produced an estimated lost remuneration of $21,874.32 gross, plus superannuation.

The Commission then deducted earnings obtained by the employee through Uber driving. He had earned approximately $7,000 by the hearing date, with the Commissioner estimating total earnings of approximately $9,700 by the date the compensation order was to be complied with.

The Commissioner did not apply a further deduction for contingencies or misconduct.

The resulting compensation calculation was:

Calculation	Amount
Estimated remuneration for 12 weeks	$21,874.32
Estimated earnings since dismissal	-$9,700.00
Compensation	$12,174.32
Additional superannuation	$1,460.92
Total ordered	$13,635.24

The statutory compensation cap did not require any reduction.

The employer was ordered to pay $12,174.32 less taxation as required by law, together with a superannuation contribution of $1,460.92 into the employee’s nominated fund, within 14 days of the order.

Why this decision matters

This decision is significant for several reasons.

1. An employee’s objection to a proposed role change does not automatically amount to refusal to work.

An employer cannot simply characterise an employee’s objection to a substantially different role as a refusal to return to work. The circumstances surrounding the proposed change, the employee’s contractual position and the employee’s actual communications must be considered.

2. An employer should not prematurely dismiss an employee who is trying to negotiate a return to work.

The employee had expressly communicated his willingness to return and requested arrangements to facilitate that return. The employer dismissed him without first properly establishing his intentions or giving him an opportunity to respond to the allegation that he had failed to return.

3. Serious allegations require proper investigation and evidence.

The Commission was critical of the employer’s reliance on hearsay and its failure to properly put the billing allegations to the employee. It also criticised the decision to report those suspicions to external organisations before hearing the employee’s response.

4. Reinstatement is not automatic, even where dismissal is found to be unfair.

Although reinstatement is the primary remedy, the Commission may award compensation where the employment relationship has deteriorated to the point that reinstatement is inappropriate.

5. Compensation depends on likely future employment, not simply length of service.

Despite six and a half years of service, the Commission assessed that employment would probably have continued for at least another three months, rather than indefinitely. It then deducted the employee’s post-dismissal earnings.

The decision demonstrates the importance of properly managing workplace changes, conducting fair investigations and giving employees a genuine opportunity to respond before dismissal.

Representatives

Employee: Mr Ali Farah — G. Dircks, agent.
Employer: Arbias Limited — Mr Shaw, counsel.

Commission Member

Commissioner Redford.