Belinda Taft v The Trustee for Simon Bando Family Trust trading as Go Home Lifestyle Products
[2025] FWC 2014
•26 SEPTEMBER 2025
| [2025] FWC 2014 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Belinda Taft
v
The Trustee for Simon Bando Family Trust trading as Go Home Lifestyle Products
(U2025/3808)
| COMMISSIONER MATHESON | SYDNEY, 26 SEPTEMBER 2025 |
Application for an unfair dismissal remedy
Belinda Taft (Applicant) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment by the Trustee for Simon bando Family Trust trading as Go Home Lifestyle Products (Respondent). The Applicant seeks financial compensation.
The matter was the subject of a determinative conference on 15 July 2025 and both parties were self-represented. The Applicant filed submissions on 3 June 2025, the Respondent filed submissions on 18 June 2025, and the Applicant filed submissions in reply on 2 July 2025. The Applicant filed a witness statement and gave evidence on her own behalf. The Applicant’s partner David Claughton (Claughton) also gave evidence on the Applicant’s behalf. The Respondent filed witness statements in respect of Simon Bando (Bando), the Respondent’s Managing and Creative Director, and Raj Nandan, (Nandan) the Managing Director of a supplier of the Respondent. Mr Bando gave evidence during the determinative conference, but Mr Nandan did not attend.
It is not in contest that the Respondent is a small business that employed fewer than 15 employees at the time of the Applicant’s dismissal. The Applicant commenced employment on 16 November 2023 and was dismissed on 18 March 2025. The Respondent had originally objected to the application on the basis that it was made out of time, however it later withdrew this objection and I find that the application was made on 28 March 2025, within 21 days of the Applicant’s dismissal. The Applicant worked between two and three per week on a regular and systematic basis and met the minimum employment period of 12 months at the time of her dismissal. The Applicant’s income was less than the high income threshold. The Applicant was a person protected from unfair dismissal. The dismissal was not a case of genuine redundancy.
The Respondent submits that complied with the Small Business Fair Dismissal Code and I deal with that matter below.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
Section 388 of the FW Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code (Code) if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
As mentioned above, I find that the Respondent was a small business employer within the meaning of s.23 of the FW Act at the relevant time, having fewer than 15 employees (including casual employees employed on a regular and systematic basis).
It is therefore necessary to consider whether the Respondent complied with the Code in relation to the dismissal.
In deciding whether the Code has been complied with it is necessary to consider the nature of the dismissal to determine which part of the Code would have application. This is because the Code divides the different types of dismissal into the categories of “Summary Dismissal” and “Other Dismissal” and states:
“The Code
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements”.
The Respondent dismissed the Applicant without notice or warning and sought to rely on the ‘Summary Dismissal’ section of the Code. As can be seen above, this section of the Code starts with the following text:
“It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal”.
The next sentence of the Code states:
“Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures”.
This appears to import a definition into the Code but although peculiarly the term “serious misconduct” is not actually used anywhere else in the Code. A Small Business Fair Dismissal Code Checklist (Checklist) accompanies the Code which, while is not part of the Code, it is intended as a ‘tool to help small business comply’ with the Code. The Checklist asks whether the employee was dismissed because the employer believed on reasonable grounds that the employee engaged in conduct that broadly aligns with that definition but goes on to ask:
“Did you dismiss the employee for some other form of serious misconduct?”
This suggests that the definition in the Code was not intended to be exhaustive and that the Summary Dismissal code was intended to apply in circumstances where the employer believed on reasonable grounds that the employee engaged in ‘serious misconduct’ in a broader sense.
The Full Bench in Ryman v Thrash Pty Ltd T/A Wishart’s Automotive Services[1] grappled with these issues concerning the Code and said, drawing on its earlier conclusions and the ratio in Pinawin T/A RoseVi.Hair.Face.Body v Domingo[2] and, in considering whether the Summary Dismissal section of the Code had application, found that the Code operates in the following way:
“(1) If a small business employer has dismissed an employee without notice – that is, with immediate effect – on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the “Summary dismissal” section of the Code. All other types of dismissals by small business employers are to be considered under the “Other dismissal” section of the Code.
(2) In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal and, second whether the employer’s belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element”.
Having considered the text of Code, the findings of Full Bench in Pinawin T/A RoseVi.Hair.Face.Body v Domingo[3] and a practical application of the Code, I have adopted the approach below:
It is necessary to first consider the relevant circumstances in which a small business employer had dismissed an employee. In circumstances where a small business employer has dismissed an employee:
a.without notice; and
b.on a ground or on grounds that would fall within the meaning of serious misconduct as defined in reg. 1.07 of the Fair Work Regulations 2009 (Cth) (Regulations), the Commission’s analysis is concerned with whether the dismissal was consistent with the “Summary Dismissal” of the Code. It may not always be apparent to a small business, particularly a self-represented one, as to whether the grounds they have put forward for the dismissal fall within the definition within reg. 1.07 of the Regulations and the Commission may need to give consideration to this.
In assessing whether the “Summary Dismissal” section of the Code was complied with, the Commission must:
a.determine whether the employer genuinely held a belief that the employee both engaged in the conduct and that this conduct was sufficiently serious to justify immediate dismissal; and, if so
b.determine whether the employer’s belief was, objectively speaking, based on reasonable grounds. It is not necessary for the employer to be correct in the belief that it held.
It is not in dispute, and I am satisfied that in this case that the Applicant’s dismissal occurred with immediate effect, without provision of notice.
Regulation 1.07 of the Regulations defines serious misconduct as follows:
“Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i)the health or safety of a person; or
(ii)the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault; or
(iv) sexual harassment;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the
circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”
Did the Respondent genuinely hold a belief that the Applicant engaged in conduct sufficiently serious to justify immediate dismissal?
The Respondent dismissed the Applicant on the grounds that:
The Applicant had reached out to one of its suppliers requesting that the supplier representative look out for job opportunities on the Applicant’s behalf.
The communication about this was being facilitated via company email.
The Applicant had been in contact with a direct competitor to the Respondent and had facilitated a job interview via company emails on a day that she was scheduled to return to work but had lied and said she was still on holidays.
The Respondent indicated that as a result of these actions it had lost trust in her and advised the Applicant her employment at the Respondent was untenable as a result.
I accept that utilising employer resources and an employer’s supplier relationship to seek out alternative employment with a direct competitor may, prima facie, constitute wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment such that the conduct would fall within the definition of ‘serious misconduct’.
I also accept that the Respondent genuinely believed that the Applicant engaged in the conduct described above and genuinely believed that this was sufficiently serious to justify immediate dismissal. The next relevant consideration is whether the Respondent’s belief was, objectively speaking, based on reasonable grounds.
Did the Respondent hold this belief on reasonable grounds?
In Narong Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Cafe Deputy President Bartel said:
“[60] At the outset it is appropriate to note that unlike a consideration of the dismissal of an employee of a business that is not a small business employer, the function of FWA is not to determine on the evidence whether there was a valid reason for dismissal. That is, the exercise in the present matter does not involve a finding on the evidence as to whether the applicant did or did not steal the money. The application of the Small Business Fair Dismissal Code involves a determination as to whether there were reasonable grounds on which the respondent reached the view that the applicant’s conduct was serious enough to justify immediate dismissal. As such, the determination is to be based on the knowledge available to the employer at the time of the dismissal, and necessarily involves an assessment of the reasonableness of the steps taken by the employer to gather relevant information on which the decision to dismiss was based.”
Similarly, in Harley v Rosecrest Asset Pty Ltd T/A Can Do International[4] Deputy President McCarthy said:
“[9] Secondly, it is necessary for the employer to establish that there are reasonable grounds for the employer holding the belief. It is thus necessary for the employer to establish a basis for the belief held which is reasonable. In this regard it would usually be necessary for the employer to establish what inquires or investigations were made to support a basis for holding the belief. It would also ordinarily be expected that the belief held be put to the employee, even though the grounds for holding it may not be. Failure to make sufficient inquiries or to put the accusation to the employee in many circumstances might lead to a view that there were no reasonable grounds for the belief to be held.”
I turn now to consider the knowledge available to the employer at the time of the dismissal and steps taken by the Respondent to gather relevant information on which the belief was based. It is not necessary for the Commission to determine whether the employer was correct in the belief that it held.[5]
Mr Bando’s evidence was that he had discovered several emails back and forth as well as email correspondence between Belinda Hall (Hall) of Maxton Fox to the Applicant, including an email organising a job interview at a restaurant in North Sydney on the day of the Applicant’s scheduled return to work, even though the Applicant had told him she was still on holidays and could not return to work that day.
The Applicant was away from work for approximately two and a half weeks whilst on a holiday and Mr Bando had access to her work emails during this period. It is apparent that during this period Mr Bando came across an email to Ms Hall of Maxton Fox from Brunetta Stocco (Stocco) of Indesign Group, dated 24 February 2025. The Applicant had been copied in on the email which said:
“Hey Belinda,
Great to see you at the INDE on-boarding last week. Remember I mentioned that I might have someone who is looking for a new role – please meet Belinda Taft, who is currently working for the Australian commercial furniture brand, Go Home. They also do a lot of hospitality projects, so that’s a great starting point!
Anyway, I’ve cc’d Belinda on this email if you’d like to reach out to chat”.
Indesign was one of the Respondent’s suppliers and Maxton Fox was a competitor of the Respondent.
Mr Bando also appears to have had access to the response of Ms Hall of Maxton Fox sent to the Applicant that same day stating:
“Hi Belinda,
Brunetta mentioned you may be in the market for a new Business Development role? Would you have a CV you could send through? And let me know a bit more about yourself and what you might be looking for in your next move?
Where are you based day-to-day? Darlinghurst?”
The Respondent also filed a copy of a Microsoft Outlook calendar invitation that had been sent from Ms Hall of Maxton Fox to the Applicant for a meeting on 13 March 2025 at Piato Restaurant. The calendar invitation filed with the Commission indicates that the invitation had not been responded to.
Mr Bando gave evidence that on the morning of the Applicant’s dismissal:
the Applicant arrived at 9am, 15 minutes late, and proceeded to make a coffee while Mr Bando asked her details about her holiday;
Mr Bando then told the Applicant he needed to discuss an important issue that occurred whilst she was away on holidays. In particular, Mr Bando’s evidence was that he told the Applicant he had viewed emails on her desktop showing correspondence between the Applicant and Brunetta Stocco (Stocco) from a supplier, Indesign Group, which related to the Applicant finding a potential employer, Maxton Fox, at an industry event and included an email introduction via the Respondent’s email.
Mr Bando’s evidence was that he asked the Applicant:
why she was contacting Ms Stucco from Indesign Group, a long term supplier of the Respondent to find her alternative employment;
why she was using the Respondent’s email to facilitate such communication; and
why she was meeting with Ms Hall of Maxton Fox, a furniture wholesaler which was a direct competitor on a day she said she was still away on holidays and could not come into work.
Mr Bando’s evidence was that the Applicant replied that:
she had struck up a friendship with Ms Stucco and, before she went on holidays, had asked Ms Stucco “to see what was out there” and look for alternative employment on her behalf;
that she had organised the meeting with Ms Hall while she was at home doing washing and chores;
she thought it was fine to meet with Ms Hall and that Maxton Fox was not a direct competitor;
she though it was “healthy to see what was out there” in terms of job opportunities;
she felt that before she went on holidays she felt threatened by Mr Bando employing an intern in the office and felt he was trying to “push her out the door”.
Mr Bando’s evidence was that the Applicant also told him that she did not have access to work emails whilst she was away but that this was untrue as:
the Applicant had used her mobile phone to access her work emails previously;
the Applicant had access to work emails via her personal laptop; and
the Applicant had organised a lunch meeting with a competitor and would have needed to see her calendar.
Mr Bando’s evidence was that he explained to the Applicant that her fears were ridiculous as he had asked her to move to a permanent part-time position upon her return from holidays. Mr Bando said that after the Applicant didn’t respond he told the Applicant she had broken his trust, her position with the Respondent had become untenable and he had no other option than to terminate her employment effective immediately.
The Applicant provided a different account of events and gave evidence that:
when she returned from approved leave she was immediately handed a termination letter by Mr Bando;
when she attempted to speak, Mr Bando said “you’re fired”;
when she asked if she could explain Mr Bando said “I don’t care. I don’t believe you. You’re fired.”
The Applicant’s evidence was that she was dismissed based on an unsolicited email she received while on approved leave, that she did not request that the email be sent to her work email, that she did not respond using her work email and that there was no opportunity for her to provide this context.
The information that formed the basis of the Respondent’s belief at the time of the Applicant’s termination appears to have been based on:
The email sent from Ms Stucco to the Applicant on 24 February 2025.
The email sent from Ms Hall to the Applicant on 24 February 2025.
The calendar invitation sent from Ms Hall to the Applicant for a meeting on 13 March 2025, which it appears the Applicant did not respond to.
The oral response of the Applicant on the morning of 18 March 2025, the date of her dismissal, which suggests that:
oshe had struck up a friendship with Ms Stucco and, before she went on holidays, had asked Ms Stucco “to see what was out there”;
oshe had organised the meeting with Ms Hall while she was at home doing washing and chores;
oshe thought it was fine to meet with Ms Hall and that Maxton Fox was not a direct competitor;
oshe though it was “healthy to see what was out there” in terms of job opportunities;
oshe felt that before she went on holidays she felt threatened by Mr Bando employing an intern in the office and felt he was trying to “push her out the door”.
A text message exchange between Mr Bando and the Applicant suggest that the Applicant indicated she would be back by Friday (being 14 March 2025) and inquired as to whether Mr Bando would like her to come in on Monday (being 17 March 2025) and to which Mr Bando responded, on 12 March 2025:
“Good to hear…you don’t need to come in Friday or Monday we have it covered. Thanks.”
It is apparent that Mr Bando had prepared a termination letter before hearing the Applicant’s response and had formed a view that the Applicant had engaged in conduct that was sufficiently serious to justify her dismissal. However, the information before Mr Bando was, in my view, only sufficient for Mr Bando to form a reasonable belief that:
The Applicant had asked Ms Stocco [ER1] to see what “was out there” in terms of employment opportunities for her.
Ms Stocco had facilitated the introduction to a competitor who had then approached the Applicant directly.
The Applicant had met with the competitor in her own time and at time when Mr Bando knew the Applicant was to be away from work.
While it is clear that the Applicant had been talking to Ms Stocco about moving on from the Respondent, Mr Bando did not have a basis for the belief that that the Applicant had used work time or email for the purposes of her job search activities or that she had proactively approached the known competitor herself. At the time of the Applicant’s termination he did not have any basis for a belief that the Applicant set out to disparage or harm the interests of the Respondent in engaging with the supplier or competitor, e.g. by misusing confidential information or intellectual property. I accept that the Respondent was concerned about how the Applicant’s actions reflected on it as others in the industry had learned that the Applicant was ‘on the move’ but I do not accept that based on the limited information before the Respondent at the time of the dismissal, it had a reasonable basis for the belief that the Applicant’s conduct was of such a serious nature that it justified immediate dismissal.
In all the circumstances, I am not satisfied that the Respondent has proved that it has complied with the Code and find that the Code has not been complied with.
Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[6]
I set out my consideration of each below.
Was the dismissal harsh, unjust or unreasonable?
Section 387(a) - Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[7] and should not be “capricious, fanciful, spiteful or prejudiced.”[8] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[9]
Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[10] “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”[11]
It is apparent that the Applicant was dissatisfied with aspects of her employment with the Respondent. Mr Bando had indicated that he wanted to make the Applicant’s role part time upon her return from holidays and the Applicant wanted to remain employed as a casual. The Applicant had concerns about late payment of superannuation and her wage rate, which she considered fell below market rates.
I accept that the Applicant made known to Ms Stocco that she was open to other employment opportunities and while the Applicant may have received emails from Ms Stocco and Ms Hall about a potential opportunity, there is no evidence that the Applicant used company resources or time to respond to them. Based on the evidence before the Commission, I am satisfied that the Applicant was engaging about other work opportunities in her personal time and there was no restriction in her contract that prevented her from doing so. There is no evidence that in meeting with Ms Hall she was engaging in any course of action intended to or with the effect of harming the Respondent’s interests such as disclosing intellectual property or confidential information. The Applicant was simply dissatisfied with aspects of her employment with the Respondent and was networking in the industry in hope that a new opportunity opened up for her. I do not consider that this in and of itself constitutes a valid reason for dismissal.
The Applicant’s engagement with Ms Stocco of Indesign that led to Ms Stocco making the introduction to Ms Hall warrants further consideration. During the hearing the Applicant indicated that Ms Stocco had called her after hours in November 2024, told her that she was finding it difficult to get an invoice paid by the Respondent and asked the Applicant if there was something she could do to assist. The Applicant’s evidence was that she told Ms Stocco she could not assist but started chatting to Ms Stocco about Melbourne, where both the Applicant and Ms Stocco are from. The Applicant’s evidence was that she had an argument with Mr Bando on the same day about non-payment of superannuation and her wage rate. The Applicant indicated that Ms Stocco had rung her at a time that she was very upset, that Ms Stocco had said “how difficult it was to get money out of [the Respondent]”. The Applicant said that “although she had given a professional response” to Ms Stocco, she said to Ms Stocco that as she was the industry person and knew everyone, if she heard of anyone looking for work to let her know. The Applicant then said, “that was about as far as the discussion went”. However later during the hearing the Applicant elaborated on this and said that when Ms Stocco called:
the Applicant almost burst into tears on the phone;
Ms Stocco asked “What’s wrong, what’s wrong?”
The Applicant said “Oh my God, I just had a fight with Simon”, in reference to Mr Bando;
Ms Stocco said “we are trying to get money out of him, it’s not so easy”; and
The Applicant said “if you every hear anything, you’re an industry person” which was a comment in passing and not a request that Ms Stocco find her a job.
On the basis of this evidence it seems likely that Applicant did express her dissatisfaction with Mr Bando to Ms Stocco during the call and this prompted Ms Stocco to do the same. Given that Ms Stocco was a representative of a long term supplier of the Respondent and connected in the industry, I consider that the manner in which the Applicant interacted with Ms Stocco was unprofessional. The Applicant should not have aired that she had had an argument with Mr Bando to Ms Stocco.
As this evidence was revealed during the course of the hearing Mr Bando would not have known about the nature of the discussion between the Applicant and Ms Stocco in November 2024. It seems it was a case of the Applicant exercising poor judgement in the heat of the moment and after she had argued with Mr Bando a short time before taking the call. However, this interaction occurred some months before the Applicant’s dismissal and there is no evidence that the Applicant sought to disparage the Respondent or Mr Bando subsequent to the discussion in November 2024. While unprofessional, I do not consider that this isolated discussion between the Applicant and Ms Stocco in November 2024 gives rise to a valid reason for dismissal.
The Applicant was simply an employee who had become dissatisfied with her employment and had approached her network in the industry, in her own time, to look for other opportunities.
I am not satisfied that the Respondent had a valid reason for dismissal.
Section 387(b) – Was the Applicant notified of that reason?
As I am not satisfied that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[12]
Section 387(c) – Was the Applicant given an opportunity to respond to any reason related to her capacity or conduct?
As I have not found that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[13]
Section 387(d) – Was there unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to dismissal?
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”[14]
There is no evidence that the Applicant made a request for a support person to assist at the discussion concerning the dismissal.
I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.
Section 387(e) - If the dismissal related to unsatisfactory performance, by was the Applicant warned about that unsatisfactory performance before the dismissal?
As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
Section 387(f) and (g) - The degree to which the size of the Respondent’s enterprise and absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal
The Respondent is a very small business without human resources expertise. This likely had some effect on the procedures followed in effecting the Applicant’s dismissal. However, I do not consider this would have prevented the Respondent from bringing to the Applicant’s attention that it had concerns about her conduct giving her a proper chance to respond to any concerns it had before making the decision to dismiss her. Instead, it appears that the Respondent had already made its decision to dismiss the Applicant upon her return to work from holidays, and a termination letter drafted which Mr Bando gave her during the discussion on 18 March 2025.
Section 387(h) - Other matters that the Commission considers relevant.
Procedural fairness is one factor that the Commission may take into consideration when deciding if a dismissal has been harsh, unjust or unreasonable. It concerns the decision-making process followed or steps taken by a decision maker, rather than the actual decision itself.
In the context of administrative decision-making, the rules of natural justice are flexible and require fairness in all the circumstances, including the nature of the power exercised and the statutory provisions governing its exercise.[15] Ordinarily, procedural fairness requires that an allegation be put to a person and they be given an opportunity to answer it before a decision is made.[16]
I find that the Applicant was not afforded procedural fairness in that she was not given a genuine opportunity to respond to the concerns the Respondent had about her conduct before a decision to dismiss her summarily was made. I consider that this denial of procedural fairness and the sudden nature in which the decision to terminate the Applicant was made is relevant to my consideration of whether the dismissal was harsh, unjust or unreasonable.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[17]
Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was unjust. The Applicant was looking for other work opportunities in the industry in her personal time and while a supplier may have facilitated an introduction to a potential employer for this purpose, I do not consider that the Applicant’s conduct was such that it gives rise to a valid reason for her dismissal and this carries significant weight. The dismissal lacked procedural fairness in that the Applicant was not given a genuine opportunity to respond to the concerns the Respondent had about her conduct before a decision to dismiss her summarily was made.
Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was unjust. I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the FW Act.
Remedy
Being satisfied that the Applicant:
· made an application for an order granting a remedy under section 394;
· was a person protected from unfair dismissal; and
· was unfairly dismissed within the meaning of section 385 of the FW Act,
I may, subject to the FW Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.
Under section 390(3) of the FW Act, I must not order the payment of compensation to the Applicant unless:
(a) I am satisfied that reinstatement of the Applicant is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.
Is reinstatement of the Applicant inappropriate?
The Applicant submitted that she did not want to be reinstated, had lost trust and believed the workplace was unsafe and the working environment was hostile. During the hearing the Applicant confirmed that she did not wish to be reinstated. The “Applicant’s disposition is a sure guide to the Commission as to whether or not it would be appropriate to reinstate or re-employ the Applicant. To act contrary to the Applicant’s desired position in this respect would be to give effect to an order that may not yield a productive or cooperative workplace.”[18] It also is apparent that the Applicant was dissatisfied with her employment and Mr Bando, Mr Bando had become aware that she was looking for another role and the relationship between the Applicant and Mr Bando has deteriorated significantly. In a very small workplace in which there are only two or three employees it is unlikely that reinstatement will lead to a productive or cooperative workplace in these circumstances.
Having regard to the matters referred to above, I consider that reinstatement is not inappropriate.
Is an order for payment of compensation appropriate in all the circumstances of the case?
Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”[19]
In all the circumstances of this matter I am satisfied, that an order for payment of compensation is appropriate.
Compensation – what must be taken into account in determining an amount?
Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:
(a)the effect of the order on the viability of the Respondent’s enterprise;
(b)the length of the Applicant’s service;
(c)the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed;
(d)the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal;
(e)the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation;
(f)the amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and
(g)any other matter that the Commission considers relevant.
I consider all the circumstances of the case below.
Section 392(2)(a) - Effect of the order on the viability of the Respondent’s enterprise
There is no evidence that an order for compensation would have an effect on the viability of the employer’s enterprise and I find it would have no such effect.
Section 392(2)(b) - Length of the Applicant’s service
There is no evidence that an order for compensation would have an effect on the viability of the employer’s enterprise and I find it would have no such effect.
The Applicant commenced employment on 16 November 2023 and was dismissed on 18 March 2025. This is not a particularly long period, being one year and four months, however I do not consider this warrants any adjustment to the amount of compensation ordered in the circumstances of this matter.
Section 392(2)(c) - Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed
As stated by a majority of the Full Court of the Federal Court, “[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.”[20]
It is apparent that the Applicant was dissatisfied with her employment and Mr Bando, that the Applicant was looking for another work opportunity in the industry and that Mr Bando had become aware of this. In these circumstances it is unlikely that the Applicant’s employment would have continued for a lengthy period, and I find that but for her dismissal the Applicant would have remained employed by the Respondent beyond her notice period of 4 weeks.
The Applicant was employed on a casual basis, was paid $40 per hour and worked between 9am and 4pm 2-3 days per week.[21]
Had the Applicant not been dismissed she would have continued to receive weekly remuneration calculated by reference to her rate of $40 per hour and assuming an average of 2.5 days per week, with a day’s work being 6.5 hours, including a half hour lunch break on her working day, this equates to $650 gross per week and $2,600 over four weeks. I find that the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed, was $2,600.
Section 392(2)(d) - Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal
The Applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal.[22] What is reasonable depends on the circumstances of the case.[23]
The Applicant was searching for alternative employment even before her dismissal took place, there is no reason to assume this would not have continued post dismissal I am satisfied that the Applicant took reasonable steps to mitigate her loss.
Section 392(2)(e) and (f) - Amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation and mount of income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation
There is no evidence of the Applicant earning any remuneration since her dismissal or factors to suggest she will between the making of the order for compensation and the actual compensation. However, I have found that the Applicant’s employment would have continued for four weeks, this is the period that warrants focus and despite the Applicant seeking other opportunities I find that she would not have earned any income in that four week period.
Section 392(2)(g) - Other relevant matters
I have not identified any other relevant matters.
Compensation – how is the amount to be calculated?
As noted by the Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg).[24] This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages[25].”[26]
The approach in Sprigg is as follows:
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination. Workers’ compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation ordered.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
Step 1
I have estimated the remuneration the Applicant would have received, or would have been likely to have received, if the Respondent had not terminated the employment to be $2,600. on the basis of my finding that the Applicant would likely have remained in employment for a further period four weeks. This estimate of how long the Applicant would have remained in employment is the “anticipated period of employment”.[27]
Step 2
I have found that the Applicant did not earn any income from the date of dismissal and was not reasonably likely to earn any between the making of the order for compensation and the payment of compensation.
Step 3
I now need to consider the impact of contingencies on the amounts likely to be earned by the Applicant for the remainder of the anticipated period of employment.[28]
I do not consider it appropriate to make any adjustment for contingencies.
Step 4
I have considered the impact of taxation but have elected to settle a gross amount of $2,600 and leave taxation for determination.
Having applied the formula in Sprigg, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case,”[29] including my findings that:
an order for compensation would not have an effect on the viability of the Respondent’s enterprise;
the Applicant’s length of service does not warrant adjustment;
that but for her dismissal the Applicant would have remained employed by the Respondent for a period of 4 weeks would have earned $2,600 in the period;
that the Applicant took reasonable steps to mitigate her loss;
that the Applicant has not earned income from employment or other work in the relevant period.
I am satisfied that this amount of compensation I have determined, being $2,600, takes into account all the circumstances of the case as required by s.392(2) of the FW Act.
Section 392(3) - Is the amount to be reduced on account of misconduct?
I have not made findings of misconduct and the amount of the order for compensation of $2,600 is not to be reduced on account of misconduct.
Compensation cap
The amount of $2,600 is below the compensation cap prescribed by s.392(5) of the Act.
Shock, distress etc. disregarded
The Applicant stated in her Outline of Argument that she was seeking 4 weeks’ pay for the notice period required by her contract and an additional 2–4 weeks’ compensation for distress, unfair process and harm to her reputation.
In this regard, s.392(4) of the FW Act provides that the amount ordered by the Commission must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
The amount of compensation does not include any component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the Applicant’s dismissal.
Order
In light of the above, I will make an order that the Respondent pay $2,600 gross less taxation as required by law to the Applicant in lieu of reinstatement within 14 days of the date of this decision.
COMMISSIONER
Appearances:
Ms B. Taft on her own behalf.
Mr S. Bando for the Respondent.
Hearing details:
2025.
15 July.
Sydney.
[1] [2015] FWCFB 5264.
[2] [2012] FWAFB 1359.
[3] [2012] FWAFB 1359.
[4] [2011] FWA 3922.
[5] Pinawin T/A RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359 at [29].
[6] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[7] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[8] Ibid.
[9] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[10] Edwards v Justice Giudice [1999] FCA 1836, [7].
[11] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
[12] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
[13] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
[14] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
[15] Kioa v West [1985] HCA 81, [11] (per Gibbs CJ).
[16] Ibid, [22] (per Wilson J).
[17] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
[18] Taylor v C-Tech Laser Pty Ltd[2013] FWC 8732, [58].
[19] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198, [9].
[20] He v Lewin [2004] FCAFC 161, [58].
[21] Responden’s
[22] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].
[23] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.
[24] (1998) 88 IR 21.
[25] [2013] FWCFB 431.
[26] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [16].
[27] Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].
[28] Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001), [39].
[29] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [17].
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