Psychological injury defence collapses after email surfaces in case
A Fair Work Commission (FWC) decision handed down on 27 January 2026 highlighted a critical tension: what happens when an employee’s own actions contradict their claimed incapacity?
An employee worked for Harli and Harpa Pty Ltd from 30 September 2024. Her employment ended on 3 October 2025 following a meeting about performance issues. She filed a general protections application on 7 November 2025, two weeks after the 21-day deadline, claiming severe psychological injury had left her incapable of completing the application on time.
However, on 17 October 2025, well within the 21-day window, the employee sent a 17-page email to the company’s HR citing specific sections of the Fair Work Act, referencing Work Health and Safety Act obligations, and using terms like constructive dismissal, procedural fairness, and adverse action throughout.
The application was dismissed as it was submitted after the deadline.
FWC orders employer to reinstate worker who threatened colleague
FWC Deputy President Wright ruled that Essential Energy’s decision to sack an employee was harsh and unreasonable, ordering his reinstatement with backpay.
The employee had worked at the company’s depot for 16 years without a single disciplinary mark when he erupted at a colleague during a morning toolbox meeting two days after learning his father’s cancer had spread. He returned to work and apologised; the colleague accepted the apology and submitted a letter of support when he learnt the employee faced the sack.
Wright found there was a valid reason for dismissal but determined the decision was harsh given the employee’s unblemished 16-year record, his genuine remorse, his father’s terminal diagnosis, the acceptance of his apology, and the lack of any ongoing workplace safety risk.
This case highlights that even where valid reason exists, context and proportionality remain critical factors in assessing unfair dismissal.
When workplace accommodations clash with non-negotiable requirements
A hospitality manager with ADHD resigned from Open Door Pub Co. Pty Ltd after they refused to budge on punctuality requirements, but a tribunal ruled she wasn’t forced out. She started as a bar supervisor and progressed to an event manager; this led to an increase in stress which exacerbated her ADHD.
The employer attempted to work with the employee to make reasonable adjustments including the option of a transfer back to a different role at the supervisory level which she turned down.
The FWC dismissed the employee’s constructive dismissal claim on January 20, 2026, finding that the employers and the venue manager had done enough to accommodate her disability and that she left of her own accord.
The Commission found that one of the job’s core requirements was showing up on time to open the venue. The employee’s inability to meet this standard plus her struggle to complete administrative tasks during normal hours led to the conclusion that she resigned of her own free will.
FWC rules dismissal unfair after bereavement leave dispute escalates
An employee fired 20 days after her grandmother’s death won her unfair dismissal case after her employer’s documentation demands during grief went too far.
The employee worked at Tru Ninja Pty Ltd for almost 14 months without incident. When her grandmother passed away unexpectedly on 19 September 2025, she notified her manager and requested bereavement and personal leave. However, the employer immediately requested documentation that was too soon to obtain after the death.
FWC Deputy President Slevin found the dismissal unfair, stating that seeking proof of death in the days after the passing of the employee’s grandmother was an unreasonable request. The Commission found there was no valid reason for dismissal and noted the employer’s lack of HR expertise showed throughout the process.
Constructive dismissal claim rejected from employee who quit on day two
An employee who quit after two days lost his claim that he was constructively dismissed because his employer failed to accommodate his anxiety and depression. The FWC ruled on 16 January 2026 that the employee voluntarily resigned and was not forced to leave by the company’s conduct.
The employee began as a sales representative on 1 October 2025, having disclosed his mental health condition during interviews and requested structured and paced training. The company arranged for his first day to be observation-only.
The Commission dismissed the application, finding the employee was not dismissed within the meaning of the Fair Work Act. The decision highlights the high bar for establishing constructive dismissal, particularly in circumstances where an employer has made genuine efforts to accommodate disclosed conditions.
FWC blocks unfair dismissal application as service resets
In a decision issued in Sydney on 20 January 2026, FWC Deputy President Cross dismissed an unfair dismissal application, finding the employee had not completed the minimum employment period required to bring a claim against the restaurant, which was found to be a small business employer.
The employee first started with the restaurant on 16 February 2022 as a casual dishwasher. In or around August 2023, he resigned by informing the owner, by telephone and SMS that he was leaving his job.
On or around 10 November 2023, he called the employer and said “Mate, I am back in town and looking for work. Can you please hire me as casual again?” After further calls and messages, the employer asked him to come to work that night.
The Commission found this constituted a new contract of employment, resetting his service period and making him ineligible to bring an unfair dismissal claim.
Discrimination claim reveals incapacity dismissal principles
A chef filed a general protections claim arguing his aged care employer discriminated against him because of his mental disability and temporary absence due to illness. However, he filed 20 days too late.
At a hearing on 21 January 2026, it emerged that the employee had been represented by the Health Services Union throughout, and his union rep had filed an unfair dismissal application on the final day of the deadline, telling the employee his prospects in a general protections claim looked weak. The employee claimed he never read the confirmation email and only discovered the error around 1 December 2025.
FWC Deputy President Saunders dismissed the case without reaching the discrimination allegations, noting the employee’s prospects of success were weak anyway. The employee’s termination letter cited ongoing medical incapacity, the company had no record of any complaint about return to work plans, and the employee admitted under questioning he could only manage two days a week.
Vague resignation letter sparks battle over dismissal claim
A part-time employee at Smilestones Therapy Pty Ltd submitted her resignation on 28 August 2025 stating her final working day would be ‘no later than 25 September 2025’.
The employer responded informing the employee her final working day would be 11 September 2025, which the employee acknowledged. Her employment ended on 11 September 2025, but she later filed an application alleging she had been dismissed in contravention of general protections laws.
FWC Commissioner Durham found on 23 January 2026 that the phrase ‘no later than 25 September 2025’ clearly indicated the final date had not been firmly established, and it was reasonable for Smilestones to respond with their preferred end date. The Commission determined that the employee had resigned voluntarily and the application was dismissed.
Employer’s case dismissed after accepting resignation in heated text exchange
The FWC ruled on 27 January 2026 that Valor and Pride Hospitality Group Pty Ltd terminated an employee at the employer’s initiative, not through genuine resignation, after a text message dispute that unfolded in a single evening.
The trouble began at 7:44pm on 12 September 2025, when the company director texted the employee about his rostering, raised the possibility of stepping him back to casual hours, and questioned his claim of working 52 hours per week.
The Commission found the employer had terminated the employment at their own initiative.