Connor Nicholson v MacArthur Energy Pty Ltd - [2025] FWC 3018

[2025] FWC 3018

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Connor Nicholson
v

MacArthur Energy Pty Ltd

(U2025/5144)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 9 OCTOBER 2025

Application for an unfair dismissal remedy – jurisdictional objection – whether applicant was dismissed

Introduction

On 26 April 2025, Mr Connor Nicholson lodged an application with the Fair Work Commission (the Commission) under s. 394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Macarthur Energy Pty Ltd (Macarthur Energy).

A threshold issue to determine in this matter is whether Mr Nicholson has been dismissed from his employment.

Background facts

Mr Nicholson commenced employment with Macarthur Energy on 22 January 2024 as the Installation Manager.

On 7 April 2025, Mr Nicholson approached the manager of Macarthur Energy, Mr Mathew Cox, to inform him that he had put an offer on a house to purchase and wanted to confirm that he had job stability before he paid a deposit. Mr Cox informed Mr Nicholson that he was worried that Macarthur Energy was ‘going under’ and that he had spent the past six weeks sleeping on the office floor. Mr Cox requested that Mr Nicholson give him a day to work everything out and asked Mr Nicholson to keep this information to himself. Later that day, Mr Cox told Mr Nicholson to call all the customers and cancel their jobs and that he will be having a meeting with all employees tomorrow morning.

On 8 April 2025 at 6:30am, Mr Cox called a company meeting. Mr Nicholson claimed that at the meeting, Mr Cox advised employees that Macarthur Energy was going into administration and that all employees had to find new jobs. Mr Nicholson said that Mr Cox sent all employees home and advised them that an administrator would be in contact with them. Mr Nicholson said that for the rest of the day, he waited for a call from the administrator but never received one.

Mr Cox’s version of this meeting is that Macarthur Energy was owed a lot of money by customers, and he advised Mr Nicholson and the rest of the team that he was not sure if he was able to pay the wages that week. Mr Cox explained to the Commission that he thought that it was unfair for Macarthur Energy to require employees to work if Mr Cox was not sure if they would be paid. I asked Mr Cox what he thought would happen when he sent his employees home. Mr Cox said that at that stage he was not sure what would happen, so he told employees to wait for a phone call the following day either from Mr Cox or from some advisers that he was getting advice from at the time. Mr Cox said that his advisors were administrators, but that Macarthur Energy was not in administration. Mr Cox denied that he informed employees that Macarthur Energy was going into…

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 3018
Decision Date: 9 OCTOBER 2025

CaseChat Overview and Summary

Connor Nicholson filed an application with the Fair Work Commission under section 394 of the Fair Work Act 2009, alleging that he had been unfairly dismissed from his employment with Macarthur Energy Pty Ltd. Nicholson claimed that he was sent home by his manager, Mathew Cox, on 8 April 2025, and informed that he had to find new employment because the company was facing financial difficulties. Nicholson did not receive any further communication from Cox or the company and subsequently secured a job with a previous employer. Cox later contacted Nicholson and other employees, advising them that they could return to work as he had sorted out the company's financial issues. Nicholson did not return to Macarthur Energy. A central issue in this case was whether Nicholson was dismissed by Macarthur Energy or if he terminated the employment relationship himself.

The Fair Work Commission found that Nicholson was not dismissed by Macarthur Energy. The Commission determined that while Cox's actions may have contributed to Nicholson's decision to seek new employment, the short timeframe between being sent home and Cox advising Nicholson that he could return to work, as well as Nicholson being paid up to date, meant that Nicholson terminated the employment relationship himself. As Nicholson was not dismissed, the Commission did not have jurisdiction to hear the unfair dismissal application and dismissed the application. However, the Commission noted that Macarthur Energy still owed Nicholson outstanding payments for annual leave and rostered days off, and suggested that Cox revisit his position on these entitlements with his advisors.

The Commission's decision highlighted the importance of clear communication and timely payment of entitlements in maintaining employee trust and job security. The Commission also emphasised that it does not have the power to order employers to pay outstanding entitlements in response to an unfair dismissal application, and that the primary motivation behind Nicholson's claim appeared to be recovering his unpaid entitlements.

Orders