Transport coordinator dismissal — what went wrong?

Case note: Thomas Trevan v Vardan Towing & Transport Pty Ltd [2025] FWC 49

Unfair dismissal cases are the last thing a transport operator wants to see landing on their desk.  A recent case in the Fair Work Commission (FWC) is an example of how it can go wrong if you don’t address the issue squarely.

Facts of the case

Last year, a transport company (TC) dismissed a transport coordinator with eight months of service via email, claiming a ‘downturn in business’. The dismissal was immediate, and the TC promised to pay the coordinator in lieu of his notice period.

In the following weeks, the TC failed to pay the coordinator his notice and his outstanding annual leave entitlements. It also became apparent that the TC had failed to pay any superannuation or tax on his salary during the whole period of employment, despite deducting those amounts from his pay.

The coordinator lodged an unfair dismissal claim. Unfair dismissal claims must be filed within 21 days of the last day of employment. However, the claim was filed 24 days after that 21-day time period ended.

As a result, the FWC first had to decide whether the coordinator should receive an extension of time within which to lodge his application.

Could the employee lodge late?

The coordinator claimed he had ‘exceptional circumstances’, providing evidence that despite multiple requests to the TC, he could not obtain the TC’s ABN until the day before he finally lodged.

While the FWC found that he could have lodged the claim form without completing the ABN detail, it allowed the extension of time on the basis that it was unusual that he could not get access to it. The FWC also noted that the TC had failed to provide any submissions about the issue or attend the hearing.

Was the dismissal unfair?

The FWC also found that the coordinator’s dismissal was unfair and it awarded the maximum available for an unfair dismissal claim, being 26 weeks’ pay. This amount was then reduced by 25% because the coordinator did not provide any evidence that he had met his obligation to mitigate his loss by applying for other roles.

Although a downturn in business would typically give rise to a redundancy, the TC was unable to establish that the dismissal was a case of genuine redundancy because it had hired someone in the same role as the TC three weeks before the dismissal, and another person four weeks after the TC’s dismissal.

Further, it had failed to consult with the coordinator as required under the relevant award, and it had not met its obligation to consider redeploying the coordinator into the driver vacancies it had advertised at the time, despite the fact that the TC had a truck licence.

The FWC also held that the TC did not provide the coordinator with procedural fairness. Given that the coordinator had no notice of the dismissal prior to it taking effect, he had no opportunity to respond to the reason for the proposed termination of his employment, and he had no opportunity for a support person.

Employer’s failure to engage with the FWC

The FWC’s decision outlined the substantial failures of the TC to engage with it during the unfair dismissal process.  So much so that in making the order, the FWC commented it had “genuine concerns” that the TC “may simply ignore any [FWC] order based on its conduct before the [FWC]”.

Despite the TC’s general manager attending an initial conference and giving an undertaking, the TC thereafter ignored the FWC’s repeated orders to file an employer response form (form F3), provide the coordinator with his payslips, or pay his termination payment.

At the time of the extension of time hearing (prior to the final hearing), the TC had not filed any of the required documentation and did not attend.  When the FWC telephoned the general manager, she claimed she did not know about the claim or hearing (despite having been at the original conference) and sought an adjournment.  When the FWC refused the adjournment, the general manager hung up on the FWC.

Ultimately, the employer’s response form was filed and payslips were supplied but at the final hearing, the termination pay remained in dispute.

A week before the final hearing, when all deadlines had passed, the TC engaged a lawyer and tried to get permission to file submissions. This was denied on the basis that the TC had already had ample opportunity to file evidence and submissions.

Lessons to learn

In summary, this case is a reminder to:

• Ensure redundancies are genuine — where a position is declared redundant, it is important the employer can show the role is no longer required to be performed by anyone, and that the employer consulted with the employee (ensure that contracts, enterprise agreements or award requirements are checked), and has considered redeployment opportunities in the company AND related entities.
• Provide procedural fairness — in dismissing an employee for any reason, it is important that the employee is afforded a fair process. This includes following any internal policies and procedures, notifying the employee of the reason for the proposed dismissal, allowing them to respond before making a final decision and ensuring there is a valid reason related to capacity, conduct, or because of genuine redundancy.
• Engage with the FWC early and respectfully — the TC’s failure to engage with the FWC meant that it did not have evidence or submissions to support its position. It missed the opportunity to argue that the application should be rejected given it was lodged late. Had this argument been successful, the unfair dismissal claim would not have proceeded.
• Remember FWC directions are enforceable as court orders and decisions are public — it’s advisable to comply! The TC has now been referred to the Fair Work Ombudsman for its conduct and given the evidence on record about its deduction of tax and superannuation without making payment to the ATO, it can expect some close attention. This may have been avoided by early cooperation and compliance with legal obligations.

Contact us

If you are a transport and logistics company seeking advice on redundancies or employee dismissals, please contact a member of our Transport & Logistics team.