A small employer blurred conduct and redundancy, and the Commission sent the worker straight back
An employer blamed a lack of work. The Fair Work Commission found another reason - and ordered the diver reinstated.
A Sydney commercial diver has won his job back after the Fair Work Commission ruled his dismissal unfair. The decision, published on June 9, 2026, turns on a mistake plenty of employers make: treating a performance concern as a redundancy.
Moataz Moubarak worked full-time as a commercial diver for Headfor Pty Limited, trading as McLennans Diving Service, a small marine-services operator. He was dismissed verbally on December 3, 2025 with two weeks' notice, and his employment ended on December 17, 2025.
The company kept its account simple. In its submissions, it said Moubarak's employment "was terminated due to a lack of available work, arising from the Respondent's operational requirements," and that "the dismissal was not related to misconduct or performance." Managing director Alan McLennan said in his witness statement that "the sole reason for the termination of Mr Moubarak's employment was the lack of available work."
Deputy President Boyce did not accept that. Reading the minutes of the meeting where the dismissal happened, he found the diver "was dismissed because of a lack of available work, and because of his allegedly poor attitude" - and that the evidence for the poor attitude was "not properly before the Commission."
That gap was decisive. At the...
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