In a recent decision the Fair Work Commission found that an aged care business unfairly dismissed a senior cook for allegedly refusing to attend a mediation for addressing workplace conflict with her manager.
The Facts
The employee was employed as a cook at the employer’s aged care facility from May 2023 until her dismissal on 27 August 2025.
The employee complained of bullying by her manager. The employer’s CEO asked her to participate in mediation with the manager, which she said she would think about, and agreed it would be discussed further between them.
On 15 July 2026 the CEO emailed asking if the employee had given any thought to mediation?
On 4 August 2025 a mediator emailed the employee, seeking to arrange a meeting as a first stage in a mediation process.
On 18 August 2025 the CEO emailed some more information about mediation to the employee.
On 19 August 2025 the employee was again encouraged by the CEO to participate in mediation. Towards the end of their discussion, the employee said, “I don’t really have a choice.”
After further contact from the mediator, the employee agreed to taking part in a first meeting for the process on 17 August 2025. The employee did not notify the employer at the time, as she believed the process was intended to be confidential.
Whilst the employee was taking part in the meeting with the mediator, the employer sent her an email notifying termination of employment, for failing to comply with a direction to participate in mediation.
After the meeting the employee called the employer notifying she had just completed the first meeting with the mediator, however the employer did not change its position about the termination.
The employee applied for unfair dismissal.
The Decision
The Commissioner upheld the employee’s application, finding that there was no valid reason for dismissal in circumstances where:
The employer had urged the employee to participate in mediation but had not directed her to attend.
The employee had not refused to participate in mediation, and in fact attended the first meeting with the mediator.
Although the employee had been reluctant to participate in mediation, she was not disingenuous (dishonest) in her responses to the employer. Rather, her attitude towards mediation changed over time, to the point where she agreed to participate in the process.
The Commissioner observed that, after becoming aware that the employee had attended a meeting with the mediator, the employer should have realised that the reason for dismissal was contrary to the facts and reconsidered the decision to dismiss.
The Commissioner also found that the reasons for dismissal were not raised with the employee prior to her dismissal, so that:
She was not notified of the reason for her dismissal, and
She was not given an opportunity to respond to the reasons for dismissal.
The Commissioner was satisfied that there was no misconduct on the employee’s part that contributed to her dismissal and ordered the employer to pay compensation of $67,741.
Implications
The case illustrates the important distinction between encouraging an employee to participate in a process such as mediation and directing an employee to participate.
The case serves as a reminder to employers to raise reasons for dismissal with an employee for their input before making a decision about dismissal.
The case is also a timely reminder that failing to admit mistakes and take steps to rectify them can have costly consequences.
At WorkLegal our experienced team can answer your questions and put you on the right track. A range of fixed-price Initial Consultations will suit most people’s needs in quickly learning what their options are.