A request is not a direction! Employee wins $68,000 after Employer Jumps the Gun

FWC (click here) found an employee was unfairly dismissed for allegedly refusing mediation at the exact time she was participating in it and has awarded significant compensation.

The dispute stemmed from ongoing workplace tensions with her kitchen manager. An external investigation found no bullying, instead pointing to interpersonal issues and recommending mediation, provided both parties agreed.

While the cook was initially resistant, her position shifted and by mid-August, she had effectively accepted she would participate, contacted the mediator and attended the pre-mediation Zoom session. While she was in that session, the CEO terminated her employment, claiming she had refused a direction to attend mediation and had engaged in serious misconduct.

The FWC found that she did participate in the mediation process, she never refused to attend and that there was no clear direction issued to her in the first place. Importantly, even after the cook advised the CEO that she had just completed the session, the employer failed to revisit or correct the dismissal decision.

Our Take

We particularly like that FWC appeared to endorse a process that we have seen successfully implemented where you have unresolved conflict and the protagonists continue to resist reasonable attempts at resolution – i.e. give them a direction to participate in some type of reasonable restorative process (e.g. mediation, supervised meeting etc) or face the consequences (e.g. final warning or termination) for failure to do so!

This decision is also a good reminder that employers need to ground disciplinary action in verified facts, not assumptions. Here, the employer acted on an incorrect understanding that the employee had refused mediation, when she was in fact engaging with the process. Sometimes you have to change course and not be locked in to where you thought you wanted to end up.

FWC drew a clear distinction between encouraging participation and issuing a lawful and reasonable direction. That distinction mattered. Without a clear direction (i.e. using words like “directed” or “required” rather than just “invited”, “encouraged” or “requested”) the foundation for serious misconduct simply wasn’t there.

What really compounded the issue was once the employee clarified she had attended the session, the employer didn’t step back or reassess its position. That failure to pause and review the decision ultimately undermined the justification for the dismissal.

Action Items

• Issue Clear Directions Early – If attendance at mediation is required, make this explicit and document the direction clearly from the outset.

• Verify Facts Before Acting – Check whether an employee has complied before moving to disciplinary action.

• Base Decisions on Evidence, Not Assumptions – Avoid characterising conduct as refusal or misconduct without a solid factual foundation.

• Revisit Decisions When New Information Arises – Be prepared to pause and reassess if facts emerge that contradict the original basis for action.

Edge Legal

Relationships. Respect. Results