1
Fair Work Act 2009
s.394—Unfair dismissal
Irena Kennedy
v
Warwick Fabrics (Australia) Pty Ltd
(U2024/9609)
COMMISSIONER SCHNEIDER PERTH, 26 MARCH 2025
Application for an unfair dismissal remedy
[1] On 18 August 2024, Ms Irena Kennedy (Ms Kennedy) made an application to the Fair
Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the
Act) for a remedy, alleging that she has been unfairly dismissed from her employment with
Warwick Fabrics (Australia) Pty Ltd (Warwick).
[2] The matter was listed for a hearing on 11 November 2024.
[3] Ms Kennedy was represented by Mr Trainor (support person) at the hearing and
Warwick was represented by Mr Wareham from GPS Consulting. Permission for Warwick to
be represented was granted under section 596 of the Act for noting that, due to the material
before the Commission, it would allow for the matter to be dealt with more effectively and
efficiently.
[4] Ms Kennedy gave evidence on her own behalf and Mr Maffey, National Sales Manager,
gave evidence on behalf of Warwick. The parties filed written submissions prior to the hearing.
Initial Considerations
[5] It is not disputed that Ms Kennedy was dismissed at the initiative of the Warwick.
[6] Ms Kennedy is a person protected from unfair dismissal as her employment was covered
by the Commercial Sales Award 2020.
[7] Ms Kennedy was dismissed on 29 July 2024 and filed her application on 18 August
2024, within the 21-day time period as required under the Act. Ms Kennedy’s dismissal was
not a case of genuine redundancy.
[8] Warwick employed in excess of 15 employees at the time of the dismissal, therefore the
Small Business Fair Dismissal Code did not apply. Ms Kennedy was employed for greater than
six (6) months at the time of her dismissal.
[2025] FWC 850
DECISION
AUSTRALIA FairWork Commission
[2025] FWC 850
2
Submissions and Evidence
Applicant
[9] Ms Kennedy commenced employment with Warwick in September 2018 and was
employed in the position of Decorative Sales Manager at the time of her dismissal. Ms Kennedy
worked both in the showroom and on the road. A report was submitted into evidence, completed
by Doctor Mingguo Li, dated 26 May 2023, outlined Ms Kennedy’s duties as “customer
relations and servicing….wholesale drapery clients. It includes answering the phones,
preparing orders, meeting and serving clients, working in the wholesale showroom, lifting and
carrying samples weighing between 10kg to 25kg, and standing on her feet”.
[10] On 3 August 2022, Ms Kennedy was departing from a client site and, when stepping
down the kerbside, she felt instant pain in her foot. Following a medical assessment, it was
determined that Ms Kennedy had a fifth metatarsal fracture. Initially, it was recommended that
Ms Kennedy rest and see if surgery on her injured foot could be avoided. However, as time
progressed, it was determined that surgery was the only option.
[11] Ms Kennedy would not return to work at Warwick following her injury on 3 August
2022. Ms Kennedy states that she would have liked to complete a return-to-work program at
Warwick. However, this was not accommodated by Warwick. Ms Kennedy submits that
Warwick appeared to have very little interest in her recovery and her return to the workplace,
with the process being outsourced to a third party.
[12] Ms Kennedy submits that, at the time of her dismissal, there was no valid reason for the
termination of her employment, as she was fit to return to the workplace with no restrictions.
Ms Kennedy notes that she attended a medical appointment at the direction of GIO (Warwick’s
Insurance Company) in early April 2024. Ms Kennedy provided a medical reported completed
Dr Mingguo Li (dated 8 April 2024) in which the following observations in relation to her
capacity and future prognosis were made by the Doctor:
• “Current Symptoms – Ms Kennedy reported experiencing dull-aching along the lateral
edge of the right foot when walking on hard surfaces or on sand. She has minimal or
no foot pain otherwise. She reported having pain in the posterolateral side of her left
thigh when sitting or driving for a long period. She stated that walking is “not too
bad”.”
• “Current Treatment – Ms Kennedy takes Nurofen when required. She attends
physiotherapy weekly for treatment on her right foot and the thigh pain.”
• “Current Level of Function – Work – Ms Kennedy reported that she has been
participating in a work trial/work placement with Jalgam Holdings since December
2023. Her duties include customer service, administration and light cleaning. She
progressed to working 5 hours a day 5 days a week until two weeks ago when her
hours were reduced to 4 hours a day due to increasing right thigh pain.”
[2025] FWC 850
3
• “Summary and Assessment – My clinical examination showed that she was able to
walk with a normal gait. She had mild tenderness at the site of the fracture. In my
opinion, Ms Kennedy’s fracture has united. No further investigation or specific
treatment, including physiotherapy, is clinically indicated. She has reached
maximum medical improvement. Her condition is unlikely to change
substantially in the foreseeable future with or without further treatment. From
the right foot injury point of view, she is fit for pre-injury duties without
restrictions. There is no assessable permanent impairment as a direct result of
the right foot injury” (emphasis added)
Respondent
[13] Warwick outlines that, on 7 May 2024, following an absence from the workplace for
over 18 months, it wrote to Ms Kennedy and outlined that, at that time, she had not been able
to provide Warwick with a timeframe as to when she would return to work. Warwick outlines
that they were concerned Ms Kennedy would be unable to return to her substantive position
and they were considering terminating Ms Kennedy’s employment as she could no longer
perform the inherent requirements of her position.
[14] Warwick requested to meet with Ms Kennedy to discuss a timeframe for her return to
work and to consider her response to a show clause letter. Ms Kennedy met with Warwick in
person on 15 July 2024.
[15] Following the meeting, Mr Maffey emailed the Ms Kennedy the following:
“Hi Irena,
Thank you for taking the time to visit today. As discussed in the meeting, can you please
provide the following.
• Dr Ming Lee’s report dated 5/4
• Email from Irena as stated in the meeting”
[16] It was the submission of Warwick that Ms Kennedy did not respond to this email. And,
as a result, Warwick reached the conclusion that Ms Kennedy had no further information she
wished for them to consider.
[17] Warwick proceeded to dismiss Ms Kennedy on the basis that she had been absent from
work for greater than 18 months and there was no timeframe for a potential return to work with
no medical restrictions. In summary, Warwick dismissed Ms Kennedy on grounds of
incapacity.
Consideration
[18] At the hearing on 11 November 2024, it was evident that Warwick had not internally
assessed the medical report completed by Dr Mingguo Li completed on 8 April 2024. This
[2025] FWC 850
4
document outlines that Ms Kennedy’s fracture to her fifth metatarsal had healed and she was
fit to return to complete her workplace duties.
[19] There appears to be no logical explanation as to why Warwick did not receive a copy of
this report previously from their insurance company or from Ms Kennedy directly. It was the
evidence of Mr Maffey that he requested a copy of this report from Ms Kennedy at the show
cause meeting of 15 July 2024, however, Ms Kennedy did not provide it to him directly.
[20] Email records submitted by Ms Kennedy indicate that she emailed a Ms Sarah Watson
(of Working Life; the third-party provider engaged by Warwick to manage the workers’
compensation claim) to inquire about the medical report and if it had been sent to Warwick.
The email from Ms Kennedy reads:
“Hi Sarah,
Are you able to tell me if the email below from Aimee at GIO was also sent to Warwick
Fabrics? Either sent from yourself or GIO. And if so, could you let me know on what
date it was sent”.
[21] The email response from Ms Watson reads:
“Hi Irena,
I am unable to confirm if the below email was sent to Warwick Fabrics. It’s possible
they sent a copy to Warwick Fabric’s in a separate email which I wasn’t in”.
[22] It is clear Ms Watson confirmed directly to Ms Kennedy that she did not know if the
medical report had been sent to Warwick by GIO and, if it had been, she was not included in
on the correspondence. Ms Kennedy has not provided any satisfactory explanation as to why,
after receiving the email from Ms Watson confirming she was not aware if Warwick were in
receipt of the medical report, she did not email a copy of the report to Mr Maffey as he had
requested in writing on 15 July 2024. Had Ms Kennedy taken this action, Warwick would have
certainly received this medical report, and, in all probability, they would not have terminated
her employment.
Section 387
[23] In order to be a valid reason, the reason for the dismissal should be “sound, defensible
or well founded”1 and should not be “capricious, fanciful, spiteful or prejudiced.”2 However,
the Commission will not stand in the shoes of the employer and determine what the Commission
would do if it was in the position of the employer.3
[24] It is well established that “the reason for termination must be defensible or justifiable
on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show
that he or she acted in the belief that the termination was for a valid reason”4 and, further, that
“the Commission is bound to consider, for itself, whether, on the evidence in the proceedings
before it the termination was "harsh, unjust or unreasonable”.5
[2025] FWC 850
5
[25] Having reviewed the submissions and evidence of the parties before the Commission, I
have concluded that there was no valid reason for the dismissal of Ms Kennedy. The decision
to terminate the employment of Ms Kennedy needed to be based on a “sound, defensible or
well founded” allegations. Prior to deciding to terminate Ms Kennedy’s employment, Warwick
had a basic duty of care to ensure that they had all relevant information on hand prior to
terminating her employment. Ms Kennedy attended the medical with Dr Li on 5 April 2024 and
the report was issued on 8 April 2024. However, Warwick were not aware of this report until
11 November 2024 at the hearing before the Commission. This oversight speaks volumes about
that lack of attention to detail Warwick paid prior to terminating Ms Kennedy’s employment.
[26] The medical report, completed by Dr Li on 8 April 2024, articulates that Ms Kennedy
has “reached maximum medical improvement. Her condition is unlikely to change substantially
in the foreseeable future with or without further treatment. From the right foot injury point of
view, she is fit for pre-injury duties without restrictions. There is no assessable permanent
impairment as a direct result of the right foot injury”. From the medical evidence available, Ms
Kennedy was in fact able to return to work and should have been able to do so.
[27] Warwick, as the employer of the injured employee, had a basic obligation to keep
themselves informed and up to date with the prognosis and status of Ms Kennedy’s injury. This
is especially so in circumstances where they were considering the termination of Ms Kennedy’s
employment. Warwick should have been aware through the various service providers it engaged
of Ms Kennedy’s ability to return to work in April 2024. It is therefore evident that Warwick
decided to terminate the employment of Ms Kennedy on incomplete information and without a
sound, defensible, or well-founded reason.
[28] I accept that Mr Maffey provided Ms Kennedy with an opportunity to provide this
information and Ms Kennedy failed to do so, I will discuss Ms Kennedy’s culpability further
in this decision.
[29] Having determined there was no valid reason for the dismissal of Ms Kennedy, ss387
(b) and (c) cannot have been satisfied.
[30] There is no suggestion that Ms Kennedy was unreasonably refused a support person
(s387(d) of the Act) and, in fact, at the meeting of 15 July 2024, Mr Trainor was present. There
is no suggestion that the performance of Ms Kennedy was a factor in her dismissal, accordingly
s 387(e) is not a relevant consideration in this matter.
[31] Warick is not a small business employer for the purpose of the Act. However, the
business does not appear to have notable internal human resources management expertise. As
a result, Warwick is reliant on external advice and support. I have formed the opinion that
Warwick were overly reliant on external support, and this likely impacted the process followed.
This is evident from Warwick not being aware of the medical report of 8 April 2024, as it had
either not been provided to them by the insurance company or, if Warwick had been sent the
report, they did not understand that the report confirmed Ms Kennedy could return to work. As
a result, I have formed that opinion that the size of Warwick’s operations and lack of internal
human resources management support were factors in the dismissal of Ms Kennedy (ss387 (f)
and (g)).
[2025] FWC 850
6
[32] Neither party made submissions in relation to section 387(h) of the Act. As I have
highlighted previously in this decision, the conduct of Ms Kennedy contributed to the decision
of Warwick to terminate her employment. Ms Kennedy was aware that there was a medical
report confirming she was fit to return to work. However, Ms Kennedy did not take any action
to bring this report to the attention of Mr Maffey or anyone else in management at Warwick
until after the matter was before the Commission. Had Ms Kennedy alerted Mr Maffey to the
existence of the medical report prior to her termination, such as during the show cause process
as she was prompted, it is likely her employment would not have been terminated. This factor
may hold relevance in the future determination of remedy.
[33] I have made findings in relation to each matter specified in section 387 of the Act as
relevant. Having considered each of the matters specified in section 387 of the Act, I am
satisfied that the dismissal of the Applicant was unjust. There was no valid reason for the
termination of Ms Kennedy. Ms Kennedy was not incapacitated or unable to perform the
inherent requirements of her position at the time of her dismissal. Warwick failed to complete
a proper internal investigation or review of the medical report to establish that Ms Kennedy was
incapacitated and unable to perform her duties, the conclusion was reached on assumptions or
incomplete information.
Conclusion
[34] I am therefore satisfied that Ms Kennedy was unfairly dismissed within the meaning of
section 385 of the Act. The parties will be contacted regarding the programming of the matter
to determine remedy.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
PR785574
1 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
2 Ibid.
3 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
4 Rode v Burwood Mitsubishi Print R447, [19].
5 Ibid, [20].
IWORK COM THE FAIR WORK C ALOTMANI MISSION THE SEAI
http://www.fwa.gov.au/documents/Benchbookresources/unfairdismissals/Walton_v_Mermaid_Dry_Cleaners.pdf
