1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Ferven Anino Bunda v Golding Mining Pty Ltd (U2025/14245) DEPUTY PRESIDENT BUTLER BRISBANE, 15 JUNE 2026 Application for an unfair dismissal remedy – valid reason for incapacity – dismissal not harsh, unjust or unreasonable – application dismissed [1] Mr Ferven Anino Bunda was dismissed from his employment on 13 August 2025. He applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth) (“the Fair Work Act”) on 1 September 2025. Golding Mining Pty Ltd, the Respondent, opposed the application on the basis that the dismissal was not harsh, unjust or unreasonable. The matter was heard on 12 June 2026. At the conclusion of the hearing the Commission gave an ex tempore decision dismissing the application. An edited transcript of the decision follows. [2] I've decided to dismiss the application for an unfair dismissal remedy that Mr Bunda has made. The application was made in time; that's not in dispute. It's not in dispute that Mr Bunda was dismissed. And there's no issue in these proceedings in relation to whether the dismissal was consistent with the Small Business Fair Dismissal Code, or was a case of genuine redundancy. [3] The issue in relation to liability turns on whether the dismissal was harsh, unjust, or unreasonable. In terms of the issues – the mandatory considerations under section 387 of the Fair Work Act – I find that there was a valid reason for the dismissal related to Mr Bunda's capacity. I find that on the following basis. [4] Mr Bunda suffered from a significant impairment, which had involved absence from the workplace for a lengthy period. The evidence indicates an absence from around November 2024, including for surgery in 2024. It indicates that Mr Bunda was continuously absent from then until the dismissal which was occasioned by a termination letter of 13 August 2025. In that period, Mr Bunda was on income protection. The application was made on the 28th of January and approved shortly thereafter. And then in the period of the absence, the preponderance of medical evidence indicates that Mr Bunda was wholly incapacitated to work, including to work in his own occupation as a diesel fitter. [5] The only medical evidence even slightly to the contrary is a document that was a Centrelink medical certificate dated the 26th of June 2025. That Centrelink medical certificate [2026] FWC 2191 DECISION [2026] FWC 2191 2 was by the specialist, and it indicated that Mr Bunda suffered incapacity. Obviously being a medical certificate to Centrelink, it was a report to Centrelink. And it indicated that the condition impacting Mr Bunda's work, study or participation in activities was lumbar stenosis with degenerative disease with radicular symptoms. The specialist indicated on that certificate that this incapacity was expected to last until 11 December 2025. And then immediately following that part of the certificate, the form asks, “can this patient do any work, study or participate in activities of eight hours or more per week?” – this, of course, being a Centrelink form. And the specialist has ticked “yes.” And then in further response to “how many hours can they work, study or participate in activities on average each week,” the specialist has indicated twenty (20). [6] Now, that's an obvious reference, reading the form as a whole, to any work, study, or activities, and it tells me nothing really about whether Mr Bunda was fit to perform work as a diesel fitter 20 hours a week on average or at all. But I do have some guidance in that regard, because, as I say, the preponderance of medical evidence indicated an incapacity. The general practitioner's certificate of the 10th of June 2025 indicated Mr Bunda was unfit for work/study from 10 June to 10 September, and gave a prognosis of 13 to 24 months. But there was other material as well, of course. [7] It is important that Mr Bunda, under cross-examination, conceded that he wasn't fit to do the work of a diesel fitter at the time of the termination. It is also important to note that shortly after the termination, which, as I say, was effected by letter of 13 August, Mr Bunda applied for a total and permanent disability claim, which the employer supported and which was also supported by a medical practitioner. That claim was made in early September and was approved by the insurer. And I note that, in the medical practitioner's report in support of that total and permanent disability claim, the medical practitioner: • indicated that Mr. Bunda: o could stand for 30 minutes at a time; o could lift 4 to 7 kilograms, which the form describes as being able to carry a full dry washing basket or two to three shopping bags, • allows for driving for two hours at a time; and • includes a restriction that there was to be no bending on the part of Mr Bunda. [8] All of these things are consistent with the other medical evidence in this case, which was that Mr Bunda was just not fit to perform the work of a diesel fitter at that time, and it's consistent with my finding that he was not fit to perform the work of a diesel fitter in mid- August when his employment was terminated. So I find, as I say, that there is a valid reason, related to capacity, for the dismissal. [9] Mr Bunda was notified of the reason in writing through a proper show cause process that the company undertook. Mr Bunda not only had the opportunity to respond to that process, he did respond to that process, providing a short show cause response and a number of medical certificates, including the two that I've just referred to from June 2025. I accept that that was a [2026] FWC 2191 3 proper opportunity to respond and that the company took into account, on the evidence I've heard today, the show cause response and the attached medical evidence. [10] So, I should say, I therefore find that Mr Bunda was notified of the reason related to his capacity and was also given an opportunity to respond to the reason related to his capacity. [11] I do not find that there was any unreasonable refusal by the employer to allow Mr Bunda to have a support person present to assist in any discussions relating to dismissal. There's no suggestion of any request being made or refused. And of course, the show cause letter process was undertaken in writing. So that consideration does not assist the Applicant in these proceedings. [12] The item in section 387(e) is not engaged in these proceedings because there was no unsatisfactory performance alleged. Nor do I find the items in (f) or (g) to be engaged in these proceedings, given the size of the enterprise and the obvious capacity that the enterprise has. [13] In terms of any other matters that the Commission considers relevant, the Applicant asked me to take into account a difficulty that had arisen from his perspective in respect of annual and personal leave while he was on income protection. Contemporaneously with the show cause process, the Applicant had written to the employer asking questions in relation to the payment of leave. The employer wrote back to the Applicant in that regard. So, the Applicant's correspondence was on the 30th of July; the employer wrote back on the 31st of July, pointing out that if leave was to be paid that that could affect the quantum of income support payments. That correspondence from the 31st of July received no response from the Applicant. On termination, the annual leave was paid out. The personal leave was not initially paid out, but I accept that that was an error and that the Respondent then, once that error had come to its notice, paid out the personal leave. There doesn't seem to me to be any bearing on the unfairness or otherwise of the dismissal in relation to the annual or personal leave. [14] The issue of whether the termination letter was correct to indicate that there had been five weeks wages paid in lieu of notice was raised at the hearing today. I accept the submission that the employer could have just given 5 weeks’ notice rather than payment in lieu. There was some discussion on the evidence as to whether the amount paid represented a full 5 weeks’ pay. But that does not assist me in assessing whether the dismissal in this case was harsh, unjust or unreasonable in the circumstances, including the circumstances where notice could have been given without really any particular detriment to anyone compared with the situation where a payment was made to Mr Bunda's benefit. [15] Mr Bunda also asked for me to take into account his personal circumstances at the time of the dismissal and notes that he conveyed those personal circumstances to a nurse at the site. That was on the evidence. There is nothing, though, to suggest to me on the evidence that the decision makers in this case were alive to matters that Mr Bunda conveyed to the nurse. The nurse was not a witness in these proceedings. The other more salient difficulty for Mr Bunda in seeking to rely on these personal circumstances is that they simply do not outweigh the fact that he was not able to do his job because he did not have the physical capacity to do it, which I consider to be an overwhelming consideration in this case, particularly having regard to the amount of time that Mr Bunda had been absent from the workplace. [2026] FWC 2191 4 [16] The Respondent asked me to take into account as a relevant consideration the fact that it voluntarily provided and funded an income protection policy for its employees. It clearly did provide such a policy. Mr Bunda availed himself of that policy. This consideration weighs in favour of a finding that the dismissal was not harsh, unjust or unreasonable. However, even absent it, I would have formed the view that the incapacity to work rendered the application unlikely to succeed, and I would still have found that the dismissal was not harsh, unjust, or unreasonable. [17] In terms of the question of redeployment or light duties, if I can describe the suggestion of reduced hours or reduced duties that way, I accept there was no responsibility on the Respondent to create a new role for Mr Bunda. I accept there was no vacant position as a trainer assessor that he could be simply redeployed into without having to perform work as a tradesman or as a diesel fitter. And I consider that the fact that he was so restricted in doing physical work means that it is not unreasonable for the employer to have failed to find an alternative job for him to do. [18] Having considered those matters, I find that the dismissal was not harsh, unjust or unreasonable. Accordingly, the application is dismissed. As I have made that finding and dismissed the application, the issue of remedy does not arise. DEPUTY PRESIDENT Appearances: Mr F. Bunda for himself Mr R. Cullen, Solicitor of Franklin Athanasellis Cullen instructed by Ms G. Athanasellis, for the Respondent. Hearing details: 12 June 2026 In-person in Brisbane and by video using Microsoft Teams. Printed by authority of the Commonwealth Government Printer <PR810979>