In this Justitia communication, we continue our round-up of recent cases, sharing key developments and cautionary lessons to help your organisation navigate staffing matters with clarity and confidence.

7 months’ pay for 2 days of work? First, we take a look at the Fair Work Commission’s decision to reject an injured worker’s claim for non-payment of wages.

The Fair Work Commission (the Commission) has recently rejected a claim by a psychologically-injured senior employee for approximately 7 months of unpaid wages, during which time he only performed two days of work.

The applicant had been medically certified as fit to work subject to various conditions. The conditions included limitations such as avoiding meetings with the employer’s HR business partner, avoiding urgent or high stress assignments with a quick turnaround time, reduced working hours and only working on non-consecutive workdays. The conditions also included requirements that the applicant be granted leave to work remotely overseas to accompany his father for medical appointments and that his concerns about the impartiality of the panel appointed for a workplace investigation against him be formally acknowledged.
The applicant claimed that he had been ready and willing to perform the duties he had been medically certified as being able to safely perform, but that the employer had failed to assign him with such duties and pay him wages, contrary to the enterprise agreement.

The employer, on the other hand, argued that it was appropriate for it not to accept partial performance of the applicant’s role, in circumstances where the medical restrictions prevented the applicant from performing the inherent requirements of his role.

The Commission decided in favour of the employer, finding that the entitlement to wages under the enterprise agreement was conditional upon the employee performing work.

The Commissioner did note in passing that under contract law, wages are not generally earned simply by the performance of work and that the non-performance of work does not automatically mean that an employee is deprived of a right to wages.

The Commissioner however did not go so far as to reach a conclusion on this point, noting that the applicant had advanced his case differently and that, in any event, the Commission did not have power to deal with a dispute relating to common law contract terms.

This decision is under appeal, so watch this space!

Key takeaways

This case is a timely reminder for employers who are managing injured employees to:

  • Consider any obligations you may have to assign duties where the employee is able to perform modified duties or perform work subject to conditions.
  • If there are no suitable duties that may be assigned to the employee, consider any legal obligations you may have regarding payment of wages.
  • Be sure to consider any relevant industrial instrument and the employment contract when determining your obligations.
  • Ensure you regularly review the status and circumstances of staff who are on leave (whether paid or unpaid) due to illness or injury to ensure they are being appropriately supported and managed.

Case: Mr Aditya Singhal v Reserve Bank of Australia [2026] FWC 754

The second case examines an employer’s attempt to obtain security for costs in a general protections dispute, arguing that a self-represented employee conducted the proceedings inefficiently, including relying on allegedly AI-generated authorities and advancing a large, poorly particularised claim.

When employers are faced with claims that appear to lack substance or be vexatious, or even, to be informed by AI, they may consider seeking an order for security of their costs. If such an order is granted, the employee must provide upfront funds, of an amount deemed appropriate by the Court, to cover costs should the employee be unsuccessful in their claim.

In this instance, the employee sought to expand her claim to include defamation on the basis that her dismissal had damaged her reputation and prevented her from getting another job.

The employer argued that the employee’s conduct of the proceedings had caused inefficiency and unnecessary expense because the employee:

  • referred to what was suggested to be AI-generated case authorities that do not exist which required the employer to incur additional expense in conducting research to confirm the authorities are false;
  • failed to properly plead or particularise her general protections and defamation claim;
  • failed to agree to case management orders;
  • took an uncompromising approach to conducting the proceedings;
  • asserted an entitlement of approximately $2.5 million in damages, encompassing economic and non-economic loss and aggravated damages; and
  • refused to withdraw parts of her submissions that referred to confidential and without prejudice discussions, making it necessary for the employer to bring a strike out application in relation to these parts of the employee’s submissions.

The Court refused to make an order for security for costs, finding that:

  • the Fair Work Act sets a high threshold for costs-related orders, requiring unreasonable conduct by a party;
  • the employee’s conduct, while at times inefficient and inadequate, was largely attributable to her self-represented status and her “legal naivete”;
  • a lack of legal skill or familiarity with court processes does not, of itself, amount to unreasonable conduct; and
  • the employee’s conduct may justify an order for costs in another jurisdiction but not for the purposes of the Fair Work Act.

However, the employer was successful in its strike out application to remove the parts of the employee’s submissions that referred to the without prejudice settlement communications.

Key takeaways

This decision reinforces the challenges employers face when dealing with self-represented applicants, and seeking security for costs under the Fair Work Act:

  • Courts will take into consideration the fact that a litigant is self-represented when considering whether their conduct is unreasonable for the purposes of a security for costs order.
  • A self-represented litigant’s inefficiency or lack of familiarity and understanding of court process does not necessarily equate to unreasonableness.
  • The circumstances in which an applicant will be ordered to provide security for a respondent’s costs under the Fair Work Act are likely to be exceptional.

Case: Hugo v Affinity Education Group Pty Ltd [2025] FedCFamC2G 1536 (18 September 2025)