Brendan Loftus v Absolute QSEC Pty Ltd - [2025] FWC 278

[2025] FWC 278

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Brendan Loftus
v

Absolute QSEC Pty Ltd

(U2024/11825)

COMMISSIONER SLOAN

SYDNEY, 3 FEBRUARY 2025

Application for an unfair dismissal remedy

Absolute QSEC Pty Limited employed Brendan Loftus as a Security Officer. His employment commenced on 11 September 2023. He was employed on a casual basis.
Mr Loftus was accustomed to receiving his roster for the coming week each Thursday. On Thursday, 19 September 2024 he sent a text message to Bruce Birks, the “designated operations manager” of Absolute QSEC, asking whether the roster for the following week was out. Mr Birks responded that the roster was not out and asked whether Mr Loftus “needed time off”.

Mr Loftus then called Mr Birks. In the conversation which followed, Mr Birks stated that “Sydney”, which Mr Loftus took to be a reference to “head office”, had told Mr Birks not to roster Mr Loftus because he was “a directing manager of another company”. Mr Birks said he would speak to the “higher ups” who issued that order and get back to Mr Loftus.

Mr Loftus did not hear further from Mr Birks.

Later on 19 September 2024, Mr Loftus sent an email to Mr Birks asking for clarification of the situation. He received no response.

On 3 October 2024, Mr Loftus filed an unfair dismissal application with the Fair Work Commission.[1]

Procedural history

On 19 November 2024, Commissioner Durham made directions in these proceedings. In short, they required Mr Loftus to file and serve his evidence and submissions by 3 December 2024; for Absolute QSEC to file and serve its evidence and submissions by 17 December 2024; and for Mr Loftus to file and serve any material in reply by 24 December 2024.

The matter was reallocated to me. I determined to list the matter for mention on 28 November 2024 to make arrangements for the hearing. I arranged for an email attaching a notice of listing to be sent to the parties, at the addresses that had been provided to the Commission, on 20 November 2024.

On 22 November 2024, my Chambers received an email from the “Human Resources Department” of “QSEC Security”. The email stated: “I understand that your chambers is seeking Absolute QSEC Pty Ltd contact details.” The email proceeded to give the name “Jack Burges” and an email address for him.

On the same day I arranged for an email to be sent to Mr Burges at the address that had been provided. The email informed Mr Burges of the mention on 28 November 2024. Attached to the email was a copy of the notice of listing for that mention and a copy of the directions made by Commissioner Durham on 19 November 2024.

The Commission did not receive a response to that email.

I conducted the mention on 28 November 2024. Absolute QSEC did not appear. I made the following directions:

“1. The directions made by Commissioner Durham on 19 November 2024 (‘Earlier Directions’)…

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.

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Details

Case: [2025] FWC 278
Decision Date: 3 FEBRUARY 2025

CaseChat Overview and Summary

In this case, Brendan Loftus brought an unfair dismissal claim against his former employer, Absolute QSEC Pty Ltd, before the Fair Work Commission. Loftus was employed as a casual security officer by Absolute QSEC and had worked consistently over a significant period, despite being formally engaged on a casual basis. He was dismissed on 19 September 2024, after being told that he would no longer be rostered due to his alleged status as a director of another company. Absolute QSEC did not contest any of the facts in Loftus's application and did not provide any evidence or submissions to the Commission.

The Commission was required to determine whether Loftus's dismissal was unfair and, if so, whether a remedy should be ordered. The Commission found that Loftus had completed the minimum employment period with Absolute QSEC and was therefore protected from unfair dismissal. The Commission concluded that the dismissal was unfair as Absolute QSEC had failed to provide a valid reason for the dismissal, failed to notify Loftus of the reason and give him an opportunity to respond, and failed to follow any proper procedures in effecting the dismissal. However, the Commission determined that it was not appropriate to order a remedy for the unfair dismissal as Loftus had not provided a proper basis for such an order.

In summary, the Commission found that Loftus's dismissal by Absolute QSEC was unfair, but did not order a remedy as it was not appropriate to do so in the circumstances of this case. The proceedings were consequently concluded.

Orders