In this unfair dismissal case determined by the Fair Work Commission, the Commissioner concluded that the dismissal was relevantly unfair despite finding that there was a valid reason for it as the penalty of dismissal was “disproportionate and harsh” given several aspects including the applicant’s “personal circumstances”.
“Background
[1]
Mathew Egan was employed by FedEx Express Australia Pty Ltd (FedEx) as a Leading Hand Delivery Driver based at its Unanderra depot in Wollongong from 2 December 2020 until 28 January 2026. Mr Egan mishandled a package of sulphuric acid held in glass containers on 10 November 2025. The sulphuric acid leaked from the box. Mr Egan and a casual labour hire employee suffered moderately serious burns to their skin from exposure to the sulphuric acid. FedEx’s investigation of the incident led to Mr Egan being summarily dismissed for serious misconduct on 28 January 2026. FedEx determined that Mr Egan caused the incident by dropping the relevant package in breach of its manual handling policies and then failed to respond to the spill in accordance with its safety procedures. Mr Egan filed an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (FW Act) on 30 January 2026. This decision concerns whether Mr Egan was unfairly dismissed by FedEx and, if necessary, what remedy should be ordered.
[2]
There is no dispute for the purposes of s.396 of the FW Act that:
•
Mr Egan’s application was filed within 21 days of when his dismissal took effect.
•
Mr Egan was a person protected from unfair dismissal.
•
The Small Business Fair Dismissal Code is not relevant because FedEx was not a small business.
•
Mr Egan’s dismissal was not a case of genuine redundancy.
[3]
I held hearings in Sydney on 25 and 26 June 2026. Mr Egan relied on evidence from himself and Roberto Serafini (Owner Driver engaged by FedEx and Transport Workers’ Union of Australia (TWU) delegate). FedEx relied on evidence from Mariano Diaz (Operations Supervisor), Dale Frida (Technical Security Specialist Senior), Jovi Minovski (Casual Labour
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DECISION
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Hire Dock Hand employed by Programmed Skilled Workforce Pty Ltd), Trevor Bates (Leading
Hand), and Thomas Shearer (Delivery Driver/Courier).
Factual findings
[4] There was ultimately no dispute that Mr Egan breached FedEx’s Package Handling
Golden Rules on 10 November 2025 because he dropped a box containing sulphuric acid onto
the floor of his delivery truck rather than carefully placing the box onto the ground. There is a
dispute around the height at which the box was dropped. Mr Egan has been adamant that it was
a height of one to two inches. FedEx has suggested the box was dropped from around knee
height. I could not clearly identify the height from which the box was dropped when I viewed
the video footage of the incident. However, I do not consider it is necessary to make a definite
finding about the height. Mr Egan’s conduct was careless and negligent and a breach of FedEx’s
policies and procedures, even if the box was only dropped from a height of one or two inches.
[5] There is also no dispute that Mr Egan failed to identify that the package contained
dangerous goods, either before he dropped the package in his truck or when he subsequently
handled the leaking package. The package was clearly marked as a dangerous good containing
glass. Mr Egan did not look at the package closely enough to identify that the package was a
dangerous good containing glass. Mr Egan’s failure to identify that the package contained a
dangerous good meant that he did not implement FedEx’s safety procedures for dealing with a
spill of dangerous goods after the spill occurred on 10 November 2025. Mr Egan’s failure to
identify the package as a dangerous good is also likely to have contributed to his breach of the
package handling procedures.
[6] There is a factual dispute regarding what Mr Egan stated to Mr Minovski and Jayden
Trajcevski (former Casual Labour Hire Dock Hand) when they came to assist him with the spill
on 10 November 2025. There is no dispute that Mr Egan stated he was going to inform Mr
Bates about the spill. There is a dispute about whether Mr Egan stated his leg was “burning”
from exposure to the liquid, which was Mr Egan’s evidence, or whether he stated his leg “felt
funny”, as suggested by Mr Minovski. There is also a dispute around whether Mr Egan told Mr
Minovski and Mr Trajcevski not to go near the liquid. Mr Egan stated that he told Mr Minovski
and Mr Trajcevski to stay away from the spill. Mr Minovski does not recall this statement being
made. Mr Trajcevski did not refer to being told by Mr Egan not to go near the spill when he
provided information as part of the investigation process. There is no dispute that Mr Egan did
not tell Mr Minovski and Mr Trajcevski to clean up the spill.1
[7] I do not consider very much turns on the dispute around what Mr Egan stated to Mr
Minovski and Mr Trajcevski. Mr Egan’s conduct after the spill was not consistent with FedEx’s
safety procedures because he was not aware that the liquid was dangerous and corrosive. That
was because Mr Egan did not carefully inspect the box before putting it in his truck and after
he noticed the box was leaking. I consider that was the main issue with Mr Egan’s conduct. Mr
Egan would almost certainly have handled things differently if he had identified that the liquid
was a dangerous good.
1 Minovski statement (Exhibit R9) at [10].
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[8] I do not consider Mr Egan can be held accountable for Mr Minovski and Mr Trajcevski’s
subsequent handling of the dangerous liquid. Mr Egan told Mr Minovski and Mr Trajcevski
that some type of injury had occurred to his leg and that he would escalate the spill to Mr Bates.
Mr Egan did not tell Mr Minovski and Mr Trajcevski to clean up the spill. Mr Bates accepted
he directed Mr Minovski and Mr Trajcevski to clean up the spill and that he was responsible
for Mr Minovski’s injury.
[9] Mr Egan suggested that his failure to carefully check the labels on the package of
sulphuric acid partially arose because he was not aware that Mr Shearer had transported the
package from the dangerous goods area to the dock next to Mr Egan’s truck. Mr Egan gave
evidence that he did not tell Mr Shearer to move the dangerous good and that his normal practice
was to pick up any dangerous goods from the dangerous goods area when leaving the depot.
Mr Shearer provided evidence that he commonly moved dangerous goods to the dock next to
Mr Egan’s truck and that Mr Egan was aware of this. Mr Diaz provided evidence that FedEx
reviewed footage from days prior to the incident on 10 November 2025 and determined that Mr
Shearer had moved dangerous goods to the dock next to Mr Egan’s truck on other occasions. I
consider the evidence establishes that Mr Egan did not always collect his dangerous goods from
the dangerous goods area when leaving the depot. I do not accept that Mr Egan’s failure to
carefully check the labels on the package is mitigated or excused by the fact that Mr Shearer
transported the dangerous goods package to the dock.
[10] I consider the evidence establishes that Mr Egan was suffering from a degree of shock
after he identified the spill and injured his leg on 10 November 2025. Mr Egan provided
evidence that he felt extreme pain and panicked after he injured his leg. Mr Minovski provided
evidence that Mr Egan “was in some discomfort and maybe even shock by the situation.” I
consider the seriousness of Mr Egan’s conduct in failing to identify that the liquid was a
dangerous good after the spill occurred is reduced because he was injured and suffering from a
degree of shock about what had occurred.
[11] I consider the evidence establishes that FedEx’s package handling and safety procedures
were not being closely followed by various employees around the time of the incident on 10
November 2025. I viewed footage which showed packages being thrown and kicked, a
dangerous goods package being placed on a conveyor, and employees climbing over the
conveyor. This conduct is all contrary to FedEx’s policies and procedures. While FedEx
produced evidence which shows it provided regular training to employees about its policies and
procedures, it is clear the rules were regularly being breached by various employees.
[12] It is also relevant that FedEx has changed its procedures after the 10 November 2025
incident. Dangerous goods packages must now stay in the dangerous goods area until the driver
collects the package when leaving the depot.2 If this procedure had been in place and strictly
followed on 10 November 2025, it is reasonably likely that the spill would not have occurred
because Mr Egan would have known the package contained a dangerous liquid because he
would have collected the package from the dangerous goods area.
[13] There is a factual dispute regarding whether Mr Egan accepted responsibility for his
actions and demonstrated remorse. Mr Diaz provided evidence that he considered Mr Egan tried
2 Shearer statement (Exhibit R7) at [6].
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4
to lay the blame for the events on other employees like Mr Shearer and Mr Bates. Mr Egan
denies this. I consider the truth is somewhere in the middle. It is clear from the response Mr
Egan initially provided to FedEx’s letter dated 9 December 2025 that he made admissions.3 Mr
Egan admitted he had not identified that the parcel contained dangerous goods and that he may
have dropped the parcel from around one or two inches. I consider this was an admission in
relation to two instances of misconduct by Mr Egan. Mr Egan also indicated he was prepared
to undertake counselling and training to improve his performance. I do not consider Mr Egan’s
response is consistent with the proposition that Mr Egan was not accepting that he had behaved
inappropriately at all.
[14] However, there are also signs that Mr Egan was attempting to downplay the severity of
his conduct by stating “if I put the box down from any height” and by referring to Mr Shearer
transporting the parcel to the dock next to Mr Egan’s truck without his knowledge. While Mr
Egan displayed considerable remorse and accountability for his actions in his witness
statements and when he gave evidence on 25 June 2026, I do not consider Mr Egan was as
forthcoming about the issues with his conduct throughout the investigation process.
[15] I consider Mr Egan has established that he was treated less favourably than Mr Bates in
terms of a disciplinary outcome in circumstances where the severity of the misconduct was
comparable. While Mr Egan caused the incident on 10 November 2025 by failing to comply
with FedEx’s package handling procedures, the deficient response to the chemical spill was
primarily caused by Mr Bates. Mr Bates accepted he had seen the dangerous goods diamond on
the side of the box but then suggested he did not know the class of dangerous good.4 Mr Bates
was not suffering from an injury or shock, and he should have confirmed what the dangerous
liquid was before he put Mr Minovski and Mr Trajcevski in harm’s way. There is also footage
which shows Mr Bates breached other safety procedures on 10 November 2025. I found Mr
Bates’ evidence about why he thought Mr Egan was suffering from an allergic reaction rather
than a burn hard to follow. In any event, Mr Bates should not have made decisions about how
to handle the spill based on uninformed medical assumptions. Mr Bates should have taken steps
to confirm what the liquid was before he commenced a cleaning process with Mr Minovski and
Mr Trajcevski. I do not consider it was fair for Mr Egan to be punished more severely than Mr
Bates in all the circumstances.
[16] Mr Egan’s evidence about his personal circumstances was not challenged by FedEx. Mr
Egan experienced financial pressure following his dismissal and has not been able to find secure
permanent work with comparable earnings. Mr Egan is 57 years old and provides support to his
14-year-old daughter who has a disability.
Consideration – unfair dismissal
[17] Section 387 of the FW Act states the Commission must take account of the following
when considering whether a dismissal was harsh, unjust or unreasonable:
(a) whether there was a valid reason for the dismissal related to the person’s
capacity or conduct (including its effect on the safety and welfare of other
employees);
3 Shearer statement, ME-5 (Exhibit A1).
4 Diaz statement, ND-3 (Exhibit R10).
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5
(b) whether the person was notified of that reason;
(c) whether the person was given an opportunity to respond to any reason related to
the capacity or conduct of the person;
(d) any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal;
(e) if the dismissal related to unsatisfactory performance by the person – whether
the person had been warned about that unsatisfactory performance before the
dismissal;
(f) the degree to which the size of the employer’s enterprise would be likely to
impact on the procedures followed in effecting the dismissal;
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the
procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[18] I am required to consider each of these factors, to the extent they are relevant to the
factual circumstances before me.5
Was there a valid reason for dismissal related to Mr Egan’s capacity or conduct?
[19] In order to be a valid reason, the reason for the dismissal should be “sound, defensible
or well founded”6 and should not be “capricious, fanciful, spiteful or prejudiced.”7 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.8
[20] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied
that the conduct occurred and justified termination.9 The question of whether the alleged
conduct took place and what it involved is to be determined by the Commission on the basis of
the evidence in the proceedings before it. The test is not whether the employer believed, on
reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which
resulted in termination.10
[21] I find there was a valid reason for Mr Egan’s dismissal related to his conduct. Mr Egan
did not comply with FedEx’s package handling procedures on 10 November 2025. Mr Egan
also failed to identify that the package contained dangerous goods and glass despite clear labels
on the package. Mr Egan held a senior position as a Leading Hand Delivery Driver and was
expected to set an example for other employees. Mr Egan’s failure to follow FedEx’s safety
procedures on 10 November 2025 constitutes a valid reason for dismissal.
[22] The existence of a valid reason for dismissal weighs in favour of finding Mr Egan’s
dismissal was not harsh, unjust, or unreasonable.
5 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP,
Lacy SDP, Simmonds C, 21 March 2002), [69].
6 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
7 Ibid.
8 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
9 Edwards v Justice Giudice [1999] FCA 1836, [7].
10 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
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Was Mr Egan notified of the reason for dismissal?
[23] Proper consideration of s.387(b) requires a finding to be made as to whether Mr Egan
“was notified of that reason.” Contextually, the reference to “that reason” is the valid reason
found to exist under s.387(a).11
[24] Notification of a valid reason for termination must be given to an employee protected
from unfair dismissal before the decision is made to terminate their employment,12 and in
explicit13 and plain and clear terms.14
[25] I find Mr Egan was notified of the reason for dismissal in writing on 9 December 2025
and 19 December 2025, which was before the final decision to terminate his employment was
made.
[26] I find this factor weighs in favour of finding Mr Egan’s dismissal was not harsh, unjust,
or unreasonable.
Was Mr Egan given an opportunity to respond to the reason?
[27] An employee protected from unfair dismissal should be provided with an opportunity
to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity
to respond is to be provided before a decision is taken to terminate the employee’s
employment.15
[28] The opportunity to respond does not require formality and this factor is to be applied in
a common-sense way to ensure the employee is treated fairly.16 Where the employee is aware
of the precise nature of the employer’s concern about his or her conduct or performance and
has a full opportunity to respond to this concern, this is enough to satisfy the requirements.17
[29] I find Mr Egan was provided with an opportunity to respond to the reason for dismissal
after he received FedEx’s letters dated 9 December 2025 and 19 December 2025. Mr Egan also
attended meetings on 15 December 2025 and 19 January 2026. The opportunity to respond was
provided before the final decision to terminate Mr Egan’s employment was made.
[30] I find this factor weighs in favour of finding Mr Egan’s dismissal was not harsh, unjust,
or unreasonable.
Did FedEx unreasonably refuse to allow Mr Egan to have a support person present to assist at
discussions relating to the dismissal?
11 Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
12 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
13 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
14 Ibid.
15 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton
SDP, Cribb C, 11 May 2000), [75].
16 RMIT v Asher (2010) 194 IR 1, 14-15.
17 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[2026] FWC 2600
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[31] FedEx expressly informed Mr Egan that he could bring a support person to assist at
discussions relating to the dismissal on several occasions. TWU representatives attended
meetings with Mr Egan on 15 December 2025 and 19 January 2026.
[32] I find this factor weighs in favour of finding Mr Egan’s dismissal was not harsh, unjust,
or unreasonable.
Was Mr Egan warned about unsatisfactory performance before the dismissal?
[33] Mr Egan was dismissed for misconduct as opposed to unsatisfactory performance. I
consider this to be a neutral factor.
To what degree would the size of FedEx’s enterprise be likely to impact on the procedures
followed in effecting the dismissal?
[34] I consider FedEx followed appropriate procedures in relation to Mr Egan’s dismissal,
as would be expected of a large business like FedEx. I consider this to be a neutral factor.
To what degree would the absence of dedicated human resource management specialists or
expertise in FedEx’s enterprise be likely to impact on the procedures followed in effecting the
dismissal?
[35] FedEx has dedicated human resource specialists and expertise. FedEx’s representatives
followed appropriate procedures in relation to Mr Egan’s dismissal. I consider this to be a
neutral factor.
What other matters are relevant?
[36] Section 387(h) requires the Commission to take account of any other relevant matters.
[37] I consider it is relevant that the chemical spill on 10 November 2025 was an accident.
Mr Egan did not deliberately cause the chemical spill. Mr Egan failed to take adequate care
when he placed the package on the ground in his truck. Mr Egan’s conduct was careless and
reckless, but he did not deliberately set out to damage the package. Mr Egan’s instinct was then
to remove the box so that other packages would not be damaged. Although that was a mistake,
it shows that Mr Egan was attempting to minimise the damage caused by his actions. Mr Egan
was suffering from a burn to his leg and a degree of shock after the spill occurred. Mr Egan
escalated the issue to Mr Bates. That was an appropriate step. Although the potential
consequences of Mr Egan’s misconduct were serious, I consider the gravity of his misconduct
was moderate rather than serious. I consider the gravity of Mr Egan’s misconduct weighs in
favour of finding the dismissal was harsh.
[38] I consider Mr Egan was treated less favourably than Mr Bates when their conduct was
reasonably comparable. I consider it would have been reasonable for Mr Egan to also receive a
first and final warning letter. It is also clear that other employees have not been subjected to
any disciplinary action for breaching package handling procedures and other safety procedures.
FedEx has also now implemented changes to its dangerous goods handling procedures which
[2026] FWC 2600
8
would have been likely to prevent the incident if they had been in place on 10 November 2025.
I consider these matters weigh in favour of finding the decision to dismiss Mr Egan was harsh.
[39] I consider Mr Egan complied with FedEx’s investigation process and made admissions
regarding his misconduct. While Mr Egan attempted to downplay the severity of his conduct
by reference to the conduct of other workers, there was some relevance and merit to the issues
raised by Mr Egan. I consider Mr Egan’s overall response to the investigation process weighs
marginally in favour of finding his dismissal was harsh.
[40] Mr Egan is 57 years old and has not been able to locate comparative full-time
employment. Mr Egan has suffered financial pressure following his dismissal and is required
to provide support to his daughter. I consider Mr Egan’s personal circumstances weigh in favour
of finding his dismissal was harsh.
[41] I find Mr Egan’s length of service and disciplinary history are relevant matters. Mr Egan
had around five years of service when he was dismissed. That is a medium-term length of
employment. Mr Egan had previously been warned for not handling packages appropriately on
19 December 2023. I consider the existence of this warning means that Mr Egan’s mediumterm
length of service does not weigh in favour of finding the dismissal was harsh.
[42] Mr Egan referred to FedEx sending him an invoice for the costs of the ambulance that
transported him to hospital on 10 November 2025. Mr Egan also referred to being pressured to
take pre-booked annual leave over the Christmas and New Year period. I do not consider these
matters are overly significant. I do not consider these matters should impact the overall
assessment of whether the dismissal was harsh, unjust, or unreasonable.
Conclusion
[43] I have made findings in relation to each matter specified in s.387 of the FW Act. I must
consider and give due weight to each as a fundamental element in determining whether the
termination was harsh, unjust, or unreasonable.18
[44] I have found that there was a valid reason for Mr Egan’s dismissal and that FedEx
applied a procedurally fair process. I do not consider that Mr Egan’s dismissal was unjust or
unreasonable.
[45] However, I consider several “other matters” identified above weigh strongly in favour
of finding the dismissal was harsh. I consider the moderate gravity of Mr Egan’s misconduct,
the differential treatment of Mr Egan compared to Mr Bates, the problematic approach to safety
procedures at the Unanderra depot by various employees, and Mr Egan’s personal
circumstances, justify a finding that the decision to dismiss Mr Egan was disproportionate and
harsh. I find Mr Egan’s dismissal was harsh in all the circumstances.
[46] I find Mr Egan was unfairly dismissed by FedEx.
18 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon
Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice
[1999] FCA 1836, [6]–[7].
[2026] FWC 2600
9
Remedy
[47] Mr Egan seeks reinstatement to his previous position as Leading Hand Delivery Driver
at the Unanderra depot and orders to restore his continuity of service and for lost remuneration.
FedEx opposes reinstatement. FedEx submitted it has lost trust and confidence in Mr Egan as
an employee.
[48] In considering an appropriate remedy in a case of unfair dismissal, regard must be had
to the legislative object set out in s.381 of the FW Act. This includes an emphasis on the remedy
of reinstatement19 and on ensuring that a “fair go all round” is accorded to both the employer
and employee concerned.20 A compensation order in lieu of reinstatement can only be made if
reinstatement is considered inappropriate.
[49] A Full Bench in Nguyen v Vietnamese Community in Australia t/a Vietnamese
Community Ethnic School South Australia Chapter21, identified the following propositions
relevant to the impact of a loss of trust and confidence on the appropriateness of an order for
reinstatement:
“Whether there has been a loss of trust and confidence is a relevant consideration in
determining whether reinstatement is appropriate but while it will often be an
important consideration it is not the sole criterion or even a necessary one in
determining whether or not to order reinstatement.
Each case must be decided on its own facts, including the nature of the employment
concerned. There may be a limited number of circumstances in which any ripple on
the surface of the employment relationship will destroy its viability but in most cases
the employment relationship is capable of withstanding some friction and doubts.
An allegation that there has been a loss of trust and confidence must be soundly and
rationally based and it is important to carefully scrutinise a claim that reinstatement is
inappropriate because of a loss of confidence in the employee. The onus of
establishing a loss of trust and confidence rests on the party making the assertion.
The reluctance of an employer to shift from a view, despite a tribunal’s assessment
that the employee was not guilty of serious wrongdoing or misconduct, does not
provide a sound basis to conclude that the relationship of trust and confidence is
irreparably damaged or destroyed.
The fact that it may be difficult or embarrassing for an employer to be required to reemploy
an employee whom the employer believed to have been guilty of serious
wrongdoing or misconduct are not necessarily indicative of a loss of trust and
confidence so as to make restoring the employment relationship inappropriate.”22
19 s 381(1)(c).
20 BlueScope Steel Limited v Sirijovski [2014] FWCFB 2593 at [73].
21 [2014] FWCFB 7198.
22 At [27].
[2026] FWC 2600
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[50] The Full Bench concluded that, “[u]ltimately, the question is whether there can be a
sufficient level of trust and confidence restored to make the relationship viable and productive.
In making this assessment, it is appropriate to consider the rationality of any attitude taken by
a party.”23
[51] I do not consider there is any compelling reason to conclude that Mr Egan’s
reinstatement is inappropriate. Mr Egan was clearly a respected and capable employee prior to
the incident on 10 November 2025. Mr Bates and Mr Minovski are not concerned about
working with Mr Egan in the future. Mr Egan was able to safely perform his duties without
issue for around five weeks after the incident on 10 November 2025. While Mr Egan made
regrettable mistakes on 10 November 2025, Mr Egan did not deliberately cause the incident.
Mr Egan was cooperative during the investigation process. Mr Egan provided evidence that he
regrets his actions and does not have negative feelings towards anyone involved in the incident
or investigation. Taking all this into account, I do not consider there is a rational and logical
basis for FedEx to have lost trust and confidence in Mr Egan as an employee.
[52] I find it is appropriate to order Mr Egan’s reinstatement to the position of Leading Hand
Delivery Driver at the Unanderra depot.
[53] I will also make an order to maintain the continuity of Mr Egan’s employment and
period of continuous service pursuant to s.391(2) of the FW Act. I consider these orders are
appropriate to ensure Mr Egan is not further disadvantaged by what I have found was an unfair
dismissal.
[54] Section 391(3) of the FW Act provides that if the Commission makes an order for
reinstatement and considers it appropriate to do so, the Commission may also make an order
for the employer to pay an amount for the remuneration lost, or likely to have been lost, because
of the dismissal. An order to restore lost pay does not necessarily follow an order for
reinstatement. The Commission may only make an order if it considers it appropriate to do so
and can only make an order that the Commission considers appropriate.24 Where an employee
has engaged in misconduct, the Commission may refuse to make any order to restore lost pay.25
[55] I decline to make an order for FedEx to compensate Mr Egan for all the remuneration
he has lost because of the dismissal. Mr Egan committed misconduct and there was a valid
reason for his dismissal. It is extremely important for safety procedures to be followed and part
of promoting this objective is for employees to understand there will be negative consequences
if safety procedures are breached. I do not consider it is appropriate for all of Mr Egan’s lost
remuneration to be restored given his breach of safety procedures on 10 November 2025.
[56] However, I consider the decision to summarily dismiss Mr Egan was misplaced,
particularly given Mr Egan worked without issue for around five weeks after the incident on 10
November 2025. I consider it is appropriate for FedEx to pay Mr Egan five weeks of wages at
his average weekly rate of pay26 for remuneration lost because of the dismissal, and for FedEx
to make the minimum required superannuation contribution on this amount. I have reviewed
23 At [28].
24 Aurora Energy Pty Ltd v Davison PR902108 (AIRCFB, Watson SDP, Williams SDP, Holmes C, 8 March 2001), [25].
25 Regional Express Holdings Ltd v Richards [2010] FWAFB 8753 at [29].
26 I consider an averaging period of 8 weeks would be appropriate.
[2026] FWC 2600
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the amounts Mr Egan has earned since being dismissed by FedEx and considered the amount
Mr Egan is likely to earn between the making of the reinstatement order and the actual
reinstatement. I am satisfied an order for FedEx to pay Mr Egan an amount equivalent to five
weeks of wages, plus superannuation, is appropriate and in accordance with s.391(3) and (4) of
the FW Act.
[57] I order that FedEx must do the following within 14 days of the date of this decision:
(i) Reinstate Mr Egan by reappointing Mr Egan to the position of Leading Hand
Delivery Driver at the Unanderra depot.
(ii) Restore Mr Egan’s continuity of employment and period of continuous service.
(iii) Pay Mr Egan an amount equivalent to five weeks of wages at his average weekly
wage rate at the time of his dismissal, and to make the minimum required
superannuation contribution on this amount into Mr Egan’s nominated fund.”
Egan v FedEx Express Australia Pty Ltd [2026] FWC 2600 delivered 9 July 2026 per Crawford C