Andrew Cox v Hill and Muller Pty Ltd - [2025] FWC 1653

[2025] FWC 1653

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Andrew Cox
v

Hill And Muller Pty Ltd

(U2025/1513)

DEPUTY PRESIDENT MASSON

MELBOURNE, 17 JUNE 2025

Application for an unfair dismissal remedy – jurisdictional objections raised – whether Applicant’s dismissal consistent with Small Business Fair Dismissal Code - jurisdictional objections dismissed – dismissal found to be unfair – reinstatement not appropriate - compensation ordered.

Introduction

This decision concerns an application made by Mr Andrew Cox (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 Cth (the Act). The Applicant was employed by Hill and Muller Pty Ltd (the Respondent) and alleges he was dismissed on 12 February 2025. The unfair dismissal application was lodged by the Applicant on 13 February 2025. On 27 February 2025, the Respondent filed its Form F3 response to the unfair dismissal application in which it raised a jurisdictional objection to the application, that being, it had complied with the Small Business Fair Dismissal Code (the Code) in dismissing the Applicant.

The matter was listed for determinative conference/hearing before me on 10 June 2025 to deal with both the jurisdictional objection and the merits of the application. Both parties filed material in advance of the determinative conference/hearing in accordance with directions issued. The Applicant appeared and gave evidence while Andrew French (Director) appeared on behalf of the Respondent, gave evidence and also called Ms Rupali Hiremath (Accounts/Bookkeeping) and Justin Koob (Construction Manager) to give evidence.

Background and evidence

Applicant’s employment

The Applicant commenced employment with the Respondent as a Leading Hand Carpenter on 17 July 2017. He entered into a further contract of employment on 26 July 2022[1] (2022 Contract) for a fixed term of two years on an employment package that included a base hourly rate of pay of $40.75 ($1630 per week) plus superannuation and use of a company vehicle.

On 11 December 2023, the Respondent agreed to amend the 2022 Contract by providing the Applicant with $2,000 bonus in lieu of a requested wage increase.[2] The Respondent also agreed to waive a $1,250 debt owed by the Applicant and to provide him with new ladders up to the value of $2,000. In amending the 2022 Contract, the Respondent reinforced its expectation of the Applicant in the following terms;

“Ongoing expectations and tasks are:
- Scheduling all day to day works.
- Scheduling weekly works.
- Scheduling monthly and quarterly works.
- Contacting other building companies to arrange and schedule any required works if we are too quiet to keep all carpentry staff busy and adding ﬁnancial value.
- Requesting and receipting PO’s for all work and tasks before commencing.
- Apprentice training and skill reviews.
- Working with Cam to help him slowly become more independent and manage his own crew on day to day basis.
- QA of all works being completed by our carpenters.”[3]
(Emphasis added)

A request by the Applicant for a remuneration review on 13 February 2024 was…

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 1653
Decision Date: 17 JUNE 2025

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Andrew Cox, applied for an unfair dismissal remedy against the respondent, Hill and Muller Pty Ltd. The central dispute is whether Mr Cox's dismissal was consistent with the Small Business Fair Dismissal Code and if it was harsh, unjust, or unreasonable. The Deputy President, Masson, dismissed the respondent's jurisdictional objection and concluded that Mr Cox's dismissal was unfair. The primary issues before the Deputy President were whether Mr Cox's dismissal was consistent with the Code and whether it was harsh, unjust, or unreasonable. The Deputy President found that the dismissal was not consistent with the Code as the respondent did not provide reasonable grounds for its belief that the dismissal was warranted. The Deputy President also concluded that the dismissal was unjust and unreasonable due to the lack of a valid reason for dismissal, significant procedural failures, and the absence of notice and an opportunity for Mr Cox to respond to the allegations. The Deputy President ordered the respondent to pay Mr Cox $7,335 in compensation, less taxation as required by law, within 14 days of the decision date.

Orders