Failure to consult employee over workplace changes results in messy unfair dismissal
Managing employee workloads and expectations during a period of downturn can be tricky. In the decision of Robert Dodd v Roadworx Surfacing Pty Ltd [2025] FWCFB 59, the Full Bench of the Fair Work Commission (FWC) refused permission for the employer to appeal a finding at first instance that its employee was dismissed unfairly, in part because of the employer’s failure to comply with award consultation provisions in relation to workplace changes.
Facts
The Applicant, Mr Dodd commenced full-time employment with Roadworx Surfacing Pty Ltd (Roadworx) on 4 April 2018.
Roadworx operated a street sweeping business engaged by local councils, car parks and construction companies. Mr Dodd was initially employed to drive the street sweepers as allocated to him.
In 2019, Mr Dodd was tasked with supervising a team of street sweepers for a new local council. Mr Dodd was successful in being appointed the supervisor of this team following a competitive selection process. Mr Dodd continued to work as a supervisor for Roadworx for the next five years, until the contract with the local council ended.
Following this period, Mr Dodd was tasked with various other jobs at Roadworx, usually allocated by way of text message from Roadworx’s Business Unit Manager, Mr David Sciberras. Mr Dodd was involved in approximately 40 jobs, including a mixture of supervisor and driver jobs. Throughout this period, there was a requirement for Mr Dodd to work night shifts. At times during this period, Mr Dodd would access his accrued entitlement to sick leave for periods of 3-4 weeks at a time.
On 4 July 2024, Mr Dodd was allocated work at another local council. Mr Dodd was required to perform street sweeping services. Halfway through performing this job, Mr Dodd received a text message from Mr Sciberras, directing him to leave the job and attend a different job. Mr Dodd objected to this direction, and said that he needed to finish the work. Eventually, Mr Dodd agreed to leave the job and attend to the request of Mr Sciberras.
On 8 July 2024, Mr Dodd was called into a meeting with Mr Sciberras, and Roadworx’s Logistics Manager, Mr James Tory. Mr Sciberras and Mr Tory brought up the incident on 4 July 2024 to Mr Dodd. At this meeting, Mr Dodd was advised that Roadworx did not have a supervisor’s role available for him anymore due to a downturn in work. In response, Mr Dodd queried whether this was a redundancy situation, to which Mr Tory responded ‘you’re not getting a redundancy, its not going to happen, get that out of your head’. After further discussion, Mr Dodd said ‘If that’s all you have then I guess I’ll have to take it since I don’t have a choice’.
Mr Sciberras then made comments to Mr Dodd to the effect of ‘I’m sick of you never wanting to help out and taking excessive sick leave and thinking that you’re way better than what you really are’. Mr Dodd replied ‘Remember that next time you call me to troubleshoot or fix something’. Mr Sciberras replied, ‘Leave your keys and go’. Mr Dodd queried ‘Are you sacking me?’, to which Mr Sciberras repeated his comment to ‘leave your keys and go’. When Mr Dodd again asked if Mr Sciberras was sacking him, Mr Sciberras replied ‘Yes I am’.
On 11 July 2024, Mr Dodd lodged an application with the FWC pursuant to section 394 of the Fair Work Act 2009 (Cth) (FW Act), claiming that he had been unfairly dismissed from his employment with Roadworx.
On 16 July 2024, Mr Dodd was provided with a letter of termination from Roadworx, outlining that Mr Dodd was not ‘willing to work with the company’ and ‘we agree to mutually terminating your contract for employment’. Mr Dodd was paid four weeks’ notice in lieu of service.
Decision
The FWC was required to consider whether Mr Dodd was dismissed. In doing so, Deputy President Wright was required to determine differing accounts of the version of events provided by Mr Dodd and Mr Sciberras.
Roadworx maintained that the dismissal was brought about by way of mutual termination, rather than dismissal.
The Deputy President found Mr Dodd to be a ‘genuine and credible’ witness. Conversely, Roadworx failed to provide material, which it claimed verified the account that no dismissal occurred. Accordingly, the Deputy President found there was a lack of evidence supporting a mutual termination and preferred the evidence of Mr Dodd, which indicated that Mr Dodd’s employment had been terminated when Mr Dodd was told to ‘Leave [his] keys and go’ after Mr Dodd had said ‘Remember that next time you call me to troubleshoot or fix something’. The Deputy President found this was a reasonable comment to have made in the context of the discussion and accordingly there was no valid reason for dismissal.
The Deputy President also noted that Mr Dodd’s employment was covered by the Waste Management Award 2020 (the Award). In light of this, the FWC was required to consider whether Mr Dodd was properly consulted about significant changes to his employment, as was required under the Award. No evidence was presented to the FWC which indicated that any consultation occurred in changing Mr Dodd’s employment conditions, including by changing his working hours to night shift and changing his position several times. The FWC held that had proper consultation occurred, Mr Dodd would have been aware of Roadworx’s expectations of him and that more appropriate discussions could have taken place regarding Mr Dodd’s duties. The FWC held that this lack of a proper consultation process caused tension in the employment relationship, leading to Mr Dodd’s poorly handled dismissal.
In reaching her decision, the Deputy President found Mr Dodd’s dismissal to be harsh, unjust and unreasonable. The FWC then held that Roadworx pay Mr Dodd compensation in the amount of $33,913.07.
Take home message
This case serves as a reminder to employers of the importance of complying with compulsory consultation provisions found under awards. While the lack of consultation in this instance was not the direct cause of the FWC’s determination that the dismissal was unfair, it does highlight the consultation requirement under awards help to positively maintain the employment relationship and avoid a breakdown in trust and confidence. This is particularly important where conditions of employment change, including where duties of the employee change over time.
For more specific information or advice on any of the material contained in this article, please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au, or Annabelle Narayan on +61 8 8210 1292 or at anarayan@normans.com.au, or Edward De Luca on +61 447 784 887 or at edeluca@normans.com.au.
