Applicant v Arbias Limited [2026] FWC 2409
A Fair Work Commission decision with Garry Dircks representing the applicant highlights the risks employers face when they change an employee’s role amid unresolved allegations, then dismiss the employee for allegedly failing to return to work.
Commissioner Redford found that Arbias Limited unfairly dismissed the applicant, a specialist case manager, and ordered the employer to pay $12,174.32 in compensation, plus $1,460.92 in superannuation.
Background
The applicant had worked for Arbias, a provider supporting people with brain injuries, since September 2019. His role involved coordinating rehabilitation and services for clients covered by the Transport Accident Commission (TAC).
Following workplace conflict and an investigation into his conduct, the employer proposed moving him into a disability support worker role involving direct client care. This was materially different from his existing case management position.
The applicant disputed the change and was stood down without pay. The employer later offered him the choice of taking the new role or agreeing to a separation arrangement.
On 10 March 2026, the applicant sought permission to work from home temporarily, citing work-related stress and unresolved workplace issues. The request was refused. The employer dismissed him on the basis that he had failed to return to work.
Why the Commission found the dismissal unfair
The Commission rejected the employer’s claim that the applicant had refused to return to work. He had recently been communicating with the employer about arrangements for his return.
Commissioner Redford considered that the employer’s decision was premature. Farah had not been notified before the dismissal decision that his alleged failure to return to work might result in termination, nor had he been given a proper opportunity to respond.
The Commission also found that the proposed transfer to a different role had not been properly explained or justified. The applicant was entitled to take issue with being moved from the position he had held for more than six years.
Separate allegations about billing discrepancies were not established by the evidence. The Commissioner was particularly critical of the employer reporting its suspicions to the TAC and the Victorian Disability Workers Commission before properly hearing Farah’s response.
The Commission concluded that the dismissal was harsh, unjust and unreasonable.
Compensation and key lessons
Reinstatement was considered inappropriate because of the significant deterioration in workplace relationships and concerns about whether the employment relationship could be restored.
In calculating compensation, the Commission assessed that the applicant would likely have remained employed for at least another three months. After deducting estimated earnings since dismissal, it awarded $12,174.32 plus superannuation.
The decision reinforces three important principles:
- A direction to return to work must be considered in context. An employee questioning a disputed role change is not necessarily refusing to work.
- Procedural fairness must come before dismissal. Employers should clearly notify employees of the actual reason for potential dismissal and give them a genuine opportunity to respond.
- Unproven allegations carry risks. Employers should carefully investigate concerns and hear the employee’s explanation before making decisions that may damage their employment or professional reputation.
For employees facing dismissal after a disputed restructure, suspension or role change, the circumstances leading to an alleged failure to return to work may be just as important as the employer’s stated reason for termination.
Note: An appeal against this decision was lodged under s 604 of the Fair Work Act 2009.
Just Relations assists employees with unfair dismissal applications and representation before the Fair Work Commission.