Procedural pitfalls during termination process give rise to successful unfair dismissal claim

The Fair Work Commission’s recent finding in Unicomb v SESLS Industrial Pty Ltd [2025] FWC 186 serves as a timely reminder for employers to exercise caution when dismissing an employee. In this case, labour hire company SESLS was ordered to compensate a worker the equivalent of eight weeks’ pay after it was found that SESLS had unfairly dismissed the employee. Despite possessing valid reasons for dismissal, the Commission found the termination process flawed because the worker was not afforded a proper opportunity to respond to the reasons for dismissal.

Preliminary facts

In May 2020, the employee commenced employment with SESLS where he was assigned to work at an open cut coal mine in New South Wales. The mine was owned and operated by Whitehaven Coal Mining Ltd (WHC).

In April 2023, the employee underwent an Order 43 assessment, which was a mandatory periodic medical examination undertaken by all coal mine workers assigned to WHC. During this examination, the employee disclosed that he was taking the drug Temazepam to treat his bipolar and depression disorders. The following year, in June 2024, the employee commenced a temporary period of leave due to work-related stress.

Before returning from leave, the employee was contacted by SESLS’s Health and Safety Manager, who told the employee that his impending return to work was conditional on him committing to a Medical Management Plan that prohibited the use of Temazepam while at work because it was contrary to WHC’s safety rules. The employee agreed to this condition in writing before returning to work at the mine.

Circumstances giving rise to employee’s dismissal

On 23 July 2024, the employee submitted to a random drug test at the mine where he returned a non-negative result for Temazepam. Despite this preliminary finding, the mine permitted the employee to continue working on-site while the test sample was sent to an external third party for further analysis. Two days later, the employee underwent a second drug test, which again returned a non-negative result for Temazepam.

On the same day, the employee was also involved in a separate work health and safety incident where he deliberately covered an in-vehicle safety camera for 25 seconds while driving a vehicle at the mine and used mouthwash while covering the Onboard Assessment System to alleviate what he described as ‘burning mouth syndrome’.

Upon learning of these indiscretions, a representative of SESLS attended the mine, escorted the employee off-site and stood him down from work. The following day, at a two-minute meeting in the car park of SESLS’s premises, the employee was dismissed with immediate effect. During this meeting, the employee was not provided an opportunity to formally respond to the reasons for dismissal.

Issues for determination

In terms of the present case, the underlying issues for determination were whether:

• SESLS had a valid reason to dismiss the employee
• the employee was given an opportunity to respond to any valid reason.

Was there a valid reason for dismissal?

The Commission found that SESLS did have a valid reason to dismiss the employee when specific regard was had to the totality of the employee’s conduct. This was because:

• the employee breached the medical management plan on two occasions by way of testing positive on-site to the use of Temazepam, which directly contravened the requirement imposed on the employee
• the employee had placed himself and others at an undue risk by disabling safety equipment on a 300‑tonne mining vehicle while operating it at 35 kilometres per hour, with the Commission finding such conduct wilful because the employee had extensive training in the safe use of mining equipment and was acutely aware that tampering with the safety equipment was strictly prohibited.

Was the employee given an opportunity to respond?

The Commission found that at no point during the termination process was the employee given an opportunity to respond to the allegations and therefore, while SESLS possessed a valid reason to dismiss the employee, the absence of procedural fairness rendered the termination process ‘manifestly inadequate’.

Takeaways for employers

Acting with haste during the termination process may inadvertently give rise to liability for unfair dismissal, especially in instances where procedural fairness requirements have not been satisfied. Even in circumstances where the reasons for dismissal are valid, it is important to afford the employee the opportunity to respond to these reasons.

If you have any questions about unfair dismissal, please contact Annie Smeaton or a member of the workplace relations and safety team.