AB v Thryv Australia Pty Ltd - [2025] FWC 2590

[2025] FWC 2590

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

AB
v

Thryv Australia Pty Ltd

(U2025/5368)

COMMISSIONER HUNT

BRISBANE, 2 SEPTEMBER 2025

Application for an unfair dismissal remedy – incapacity for 15 months – no prospect of applicant returning to work in the short-to-medium term – dismissal not unfair – application dismissed.

On 2 May 2025, Ms AB made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed from her employment with Thryv Australia Pty Ltd (the Respondent) and that the dismissal was harsh, unjust or unreasonable.

On 26 May 2025, the Respondent filed a Form F3 Employer Response to the application. It did not raise a jurisdictional objection.

Directions were issued for the filing of evidence and submissions, and the matter was listed for hearing on 18 August 2025 by Microsoft Teams. I decided to conduct the matter as a determinative conference.

The following people gave evidence at the determinative conference:

·   Ms AB;
·   Mr Travis Abreu, Country Manager, Employee Experience;
·   Ms Joanne Grzesiak, WHS and Injury Management Advisor; and
·   Ms Lauren Barber, Senior Employee Experience Partner.

On 15 August 2025, I made a Confidentiality Order[1] on the Commission’s own initiative. I did this on account of the sustained domestic violence suffered by the applicant in these proceedings, witnessed by her children. I considered it appropriate to protect the identity of the applicant and her children.

Relevant legislation

Section 394 of the Act provides:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

Further, ss.385 and 387 provide as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB v Thryv Australia Pty Ltd

Details

AGLC: AB v Thryv Australia Pty Ltd [2025] FWC 2590
Case: [2025] FWC 2590
Decision Date: 2 SEPTEMBER 2025

CaseChat Overview and Summary

The applicant, Ms AB, applied to the Fair Work Commission for a remedy for an alleged unfair dismissal by Thryv Australia Pty Ltd. Ms AB alleged that she had been dismissed and that the dismissal was harsh, unjust, or unreasonable. The central issue for the Commission to determine was whether the dismissal was unfair under s.387 of the Fair Work Act 2009. The Commission found that there was a valid reason for the dismissal related to Ms AB’s capacity to work, she was notified of the reason, and she had an opportunity to respond. The dismissal was not related to unsatisfactory performance, and the employer’s size and the presence of a dedicated human resource management specialist did not impact the procedures followed. The Commission concluded that the dismissal was not harsh, unjust, or unreasonable and dismissed the application. The reasoning was based on the extensive medical evidence indicating that Ms AB was unfit for work for a prolonged period and the employer’s right to organise its business without being obliged to keep a position open indefinitely.

Orders