Workplace Wisdom – May 2026 – Recent Fair Work Commission Cases

Legal updates & tips for your business

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Recent Fair Work Commission Cases

Souza-Connell v Virgin Australia Airlines Pty Ltd [2026] FWC 1572

Topic: Misconduct Investigations – how much evidence is required to be provided to the employee?

Ms Alissa Souza-Connell took her employer, Virgin Australia to the Fair Work Commission (‘FWC’) regarding a dispute arising under the company’s Enterprise Agreement (‘EA’).

The dispute involved six allegations of misconduct against Ms Souza-Connell and a disagreement as to how much evidence was required to be provided to the employee so that she could respond.

Ordinarily, employees are only entitled to the particularlised allegations (as opposed to the original complaint or supporting evidence). This means sufficient details of who, what, where and when in respect of the alleged misconduct.

However, Ms Souza-Connell asserted that her employer was obliged to give copies of any video footage, electronic records or any other policies, manuals or documents referenced or relied upon. This was noting that the EA expressly listed this workplace right, as prefaced by the principles of procedural fairness and natural justice.

Virgin Australia rejected this position on several grounds, including that: Ms Souza-Connell had already responded to five out of six of the allegations, only the documents specific to the allegations were of relevance, and procedural fairness does not require Virgin Australia to have an ‘open file’ policy to disclose every submission or piece of evidence.

Decision: The FWC sided with Ms Souza-Connell such that Virgin was required to provide her any ‘documents’ including records of interview, interview notes or witness statements that are referenced in the allegations, except for the ‘complaint’.

“The fact that Ms Souza-Connell has already provided an initial response to all but one of these allegations, and Virgin has provided Ms Souza-Connell with further and better particulars in respect of each allegation, is beside the point. These matters do not negate the production requirements arising from a plain reading of [the EA clause], noting the mandatory language contained within it and the requirement that such material be produced (where it exists) ‘together with’ the allegations.” [para 38].

 

Key takeaways:

When considering misconduct allegations, always refer to the relevant workplace policy or agreement to clarify the relevant process of the employer and their obligations – particularly the language.

While it is unlikely that an employee under investigation will be entitled to receive a copy of the complaint, procedural fairness requires that they are given enough information to ascertain the nature of the complaint so that they can properly respond. This may include the documents that the employer relied to determine that an investigation was required.

If you are an employer, review the documents that govern your workplace investigations. Do they prescribe requirements that you won’t be comfortable meeting for every investigation? If so, you may wish to review these documents and procedures, so they are easily complied with while still allowing procedural fairness in your investigations.

If you are an employee under investigation, check any enterprise agreement or policy that may govern the process. If the employer deviates from the requirements set out in these documents, you may have an argument that you were denied procedural fairness.

 

Emtiaz v Elevant Operations Pty Ltd [2026] FWC 1520

Topic: General Protections (involving dismissal) and forced resignation

Mr Hamed Emtiaz filed a General Protections Claim in the FWC against his former employer, Elevant Operations. The employer opposed the Claim, arguing a jurisdictional objection – this being that Mr Emtiaz resigned and was not dismissed.

In some cases, an employee’s resignation can still constitute a dismissal. It can be referred to as a ‘constructive dismissal’ or ‘forced resignation’.

Mr Emtiaz contended that among several reasons, he was forced to resign because of a ‘hostile and intimidating work environment’, his Employer’s General Manager having told him to resign and that he “didn’t have any other choice” but to do so. He sought a payment of $130,000, representing the remaining value of his fixed term contract.

Elevant asserted that prior to Mr Emtiaz resigning, he was underperforming, inappropriately behaving and non-compliant with workplace policies in his five weeks of employment.

Decision: The FWC found that although Mr Emtiaz was making a claim under the General Protections provisions of the Fair Work Act 2009 (Cth), as the claim involved an alleged dismissal, it was important to consider the definition of ‘dismissed’ by reference to other provisions in the FW Act, including s 386, which provides the definition of dismissed for the purposes of an unfair dismissal claim. The FWC concluded that Mr Emitiaz had not been ‘dismissed’.

In coming to this decision, the FWC noted that Mr Emtiaz did not seek to withdraw his resignation or object to Elevant’s acceptance of the resignation, he was not in emotional or psychological distress at his resignation and he ‘doubled down’ on his resignation with a pre-litigation notice sent to Elevant. There was therefore no conduct undertaken by Elevant that objectively could be said to have forced his resignation. The FWC thus dismissed the General Protections Claim, noting the jurisdictional objection.

Key Takeaways:

Demonstrating a forced resignation can be challenging, particularly so with a General Protections Claim where the resignation must arise from some action prior – e.g. an exercise of workplace right.

Particularly where the employer provides other options to the employee – e.g. in this case, it was proposed that Mr Emtiaz could have met the General Manager to discuss his grievances – it will be unlikely that a resignation will constitute a dismissal under section 386(2) of the FW Act.

 

KEY DATES & CHANGES

On 31 March 2026, the FWC decided that the rates of pay for junior employees would change in each of the General Retail Award, Fast Food Award, and Pharmacy Industry Award. Currently, employees under the age of 21 covered by these awards are paid a percentage of the adult pay rate for their classification. However, as early as 1 December 2026, some employees between the ages of 18 and 20 will be entitled to the adult pay rate for their classification if they’ve been employed by their employer for more than six months.

1 July 2026: commencement of:

• An increase to the Australian Government’s paid parental leave (PPL) payments (increasing to 26-weeks or 130 flexible PPL days) under the Paid Parental Leave Act 2010 (Cth) for children born or adopted on or after 1 July 2026.
• Requirement for employers to make Superannuation Guarantee contributions so that they are received within seven business days of the employee’s payday.
• An increase to the Fair Work high-income threshold for Unfair Dismissal and Unfair Deactivation Claims, currently at $183,100, which will rise to $190,100. This acts as a ‘cut-off’ threshold for bringing these types of claims.

 

DID YOU KNOW?

When it comes to workplace sexual harassment:

1. Contractors or customers who engage in sexual harassment against employees can still be held liable under the prohibition of sexual harassment under the Fair Work Act. This is because the duty to prevent sexual harassment extends to such acts ‘in connection’ with the employee’s work (see 527D of the FW Act).
2. Harassment because of one’s sexual orientation (e.g. homosexuality), even if the sexual orientation is assumed and not confirmed, can still constitute sexual harassment.
3. Compensation for sexual harassment is typically increasing, with $90,000 awarded in Eklom v Marshall [2026] FedCFamC2G 772.

Authors: Amy Sydney & Laura Wood

Ph: (02) 6279 4444

Email: info@mvlaw.com.au

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_{This newsletter does not constitute legal advice, and we encourage you to reach out for us to provide customised information for your circumstances.}