Jamie Ngoc Tran v ABC Tissue Products Pty Ltd - [2025] FWC 3109

[2025] FWC 3109

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jamie Ngoc Tran
v

ABC Tissue Products Pty Ltd

(U2024/10818)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 16 OCTOBER 2025

Application for an unfair dismissal remedy – whether misconduct occurred – physical assault – valid reason – lack of procedural fairness – dismissal not unfair – application dismissed

Introduction and outcome

On 11 September 2024, Mr Jamie Ngoc Tran lodged an application with the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with ABC Tissue Products Pty Ltd (ABC).

ABC operates a tissue manufacturing business in Wetherill Park, New South Wales, producing toilet tissue and related products.

Mr Tran was employed by ABC for approximately 17 years, until 30 July 2024. His employment ended following an incident on 29 July 2024, where he was alleged to have physically assaulted another employee, Mr Sieng Khantey.[1]

Mr Tran contended that his dismissal was unfair, claiming that he was defending himself against an attempt by Mr Khantey to take money from his pocket. He alleged procedural unfairness, including coercion to sign a translated statement under threat of police involvement, and claimed his dismissal may have been motivated by a prior workers’ compensation claim and personal animosity from management.[2]

ABC denied the dismissal was unfair, asserting that Mr Tran was dismissed for serious misconduct, supported by witness statements and CCTV footage.[3]

I have found that there was a valid reason for the dismissal based upon Mr Tran’s conduct in hitting Mr Khantey with an open hand. Although I have found that there were many aspects of the termination that were procedurally unfair, I believe that these matters would not have affected the outcome. I have concluded that Mr Tran was not unfairly dismissed, and I have dismissed the application.

The hearing

There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.

After taking into account the views of Mr Tran and ABC, and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing pursuant to s.399 of the FW Act.

At the hearing, Mr Tran was represented by a Paid Agent and ABC was represented by Counsel. I granted permission for the parties to be represented pursuant to s.596(2) of the FW Act as I was satisfied that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

Mr Tran filed two witness statements on his own behalf and was cross-examined by Counsel for ABC. The following witnesses gave evidence on behalf of ABC:

Mr Ninos Khoshaba, Assistant General Manager and Group People and Culture Manager at ABC
Mr Anthony Ly Leng, Night Shift Manager at ABC
Mr Viem Hua, Nightshift Supervisor at ABC’s head office
Mr Sieng Khantey, machine operator at ABC
Mr Sreang Hing, core attendant and machine operator at ABC
Mr Quang Sanh Nim, forklift driver at ABC

All of ABC’s witnesses were cross-examined by Mr Tran’s representative apart from Mr Nim.

Mr Tran filed submissions in the Commission on 6 January 2025, 11 February 2025, 25 March 2025 and 15 April 2025. ABC filed submissions on 3 February 2025 and 8 April 2025. I have considered the submissions made by the parties and all of the evidence before me, including witness statements, CCTV footage, and other documents, in my determination of this matter and the conclusions I have reached.

Background facts

Incident on 29 July 2025 – evidence of Mr Tran

Mr Tran is 58 years old. Mr Tran migrated to Australia from Vietnam in 1981 when he was 14 years old. Mr Tran commenced employment with ABC on 15 October 2007. Mr Tran was initially employed as a cleaner and then later was employed as a process worker.

ABC employs approximately 700 staff.[4] Mr Tran’s employment was governed by the ABC Tissue Products Pty Ltd Enterprise Agreement 2022 (the enterprise agreement).

Mr Tran provided two witness statements dated 6 January 2025 and 11 February 2025 respectively. The statement dated 11 February 2025 was provided after Mr Tran had seen CCTV footage of the alleged assault for the first time. The witness statement dated 6 January 2025 was in identical terms to a statutory declaration dated 10 September 2024 that was attached to the application.

In the witness statement of 6 January 2025, Mr Tran said that on 29 July 2024, during his night shift, he was looking at a machine which was not working, along with other workers. One of the other workers, Mr Khantey, put his hand in the pocket on the right-side front of Mr Tran’s pants and said he needed money. Mr Tran said that he was ‘weirded out’ by this, but explained to Mr Khantey that he did not have any money and walked back to his usual area of work. Mr Tran said that shortly after this, another colleague, Mr Sreang Hing, called Mr Tran to request his help to fill out a form as Mr Hing is new and needed Mr Tran’s assistance. While Mr Tran was helping Mr Hing fill out the form, Mr Khantey approached Mr Tran again and tried to put his hand in the same pocket he did before. Mr Tran said that he waved his hand around to tell Mr Khantey to not put his hand into Mr Tran’s pocket and to get away from Mr Tran. Mr Tran said that he felt shocked when Mr Khantey did this and asked why Mr Khantey was putting his hand in the pocket of Mr Tran’s pants. Mr Khantey said he wanted to borrow $200. Mr Tran told Mr Khantey that he did not have any money to give him and told Mr Khantey to go away as he did not feel comfortable with Mr Khantey repeatedly putting his hands in Mr Tran’s pocket. Mr Tran said that he strongly believed that Mr Khantey was trying to pick-pocket Mr Tran’s wallet, but Mr Tran had caught Mr Khantey before he did.[5]

In the witness statement of 11 February 2025, Mr Tran said that the ‘core machine’ (core refers to the cardboard core in a toilet paper roll) was not functioning, and he could not complete his usual duties. As a result, he began to walk around and pick up rubbish to stay productive. During this time, he encountered Mr Khantey with whom Mr Tran engaged in a friendly conversation. Mr Khantey asked Mr Tran to assist him with the cores on the machine. Mr Tran told Mr Khantey that it was not part of Mr Tran’s job, and Mr Khantey laughed. Mr Tran made a joke about making more money at the club since the machine was not working.[6] Mr Tran said that Mr Khantey then patted his pockets and asked to borrow $200 from Mr Tran, stating he thought Mr Tran had a lot of money because of how his pockets looked. Mr Tran said that while he showed Mr Khantey photos on his phone of a winning lottery ticket, Mr Khantey stood close to Mr Tran and attempted to reach into his pants pocket. Mr Tran said that he felt extremely uncomfortable and moved away to indicate that he did not want Mr Khantey touching him. Mr Tran said that Mr Khantey continued to attempt to reach for his pants pockets. Mr Tran pushed Mr Khantey away by the chest, as he did not want Mr Khantey touching him further. Mr Tran also wanted to protect his wallet from Mr Khantey.[7]

Mr Tran said that he told Mr Khantey to stop, not to take his money, and to stay away from him. Mr Tran expressed that Mr Khantey was not a good person, referring to Mr Khantey previously making false claims about Mr Tran to the supervisor about Mr Tran damaging the fridge and breakroom furniture, and wielding a knife. Mr Tran said that Mr Khantey denied making these claims, but Mr Tran was certain that he had, as he was the only other person present in the breakroom on the day in question. Mr Tran became further upset by Mr Khantey’s continued denials and felt that he was lying to cover up his actions.[8]

Mr Tran then walked over to Mr Hing, who appeared to be struggling with fixing the core machine. Mr Tran offered to assist Mr Hing, as he wanted to help him get the machine working again so Mr Tran could finish his shift and go home.[9]

Mr Tran said that Mr Khantey then approached him and Mr Hing, standing very close to Mr Tran. Mr Tran said that found this intrusive as Mr Khantey had no reason to be there, and Mr Tran believed Mr Khantey’s presence was unnecessary for Mr Hing’s task. Mr Tran said that Mr Khantey again put his hands into Mr Tran’s pockets. Mr Tran said that once again he pushed Mr Khantey away and told him to stop. Mr Tran said that he felt deeply violated by Mr Khantey’s actions and did not want Mr Khantey touching him. Mr Tran said he expressed his discomfort to Mr Khantey, saying Mr Khantey was trying to take his wallet and was not a good person. Mr Tran said that during the discussion, he also brought up the fact that Mr Khantey had falsely accused Mr Tran of damaging the fridge, which Mr Khantey continued to deny. Mr Tran grew increasingly distressed by Mr Khantey’s behaviour. Mr Tran said that Mr Hing noticed his distress and suggested that they go for a coffee. As they were walking away, Mr Tran said that he repeated his claim that Mr Khantey made up a false story about him and that Mr Khantey continued to deny this.[10]

Mr Tran said that Mr Khantey reported the incident to Mr Anthony Ly Leng, Night Shift Manager, who sent Mr Tran home for the night and asked Mr Tran to write up a statement about what had occurred. Mr Tran said that he wrote his statement in Vietnamese as this is his preferred language. Mr Tran said that Mr Leng did not inform him he had the right to have a support person with him during this process.[11] Mr Tran attached an English translation of his statement of 30 July 2024 to the application form which provided:[12]

Mr Hing had asked for Mr Tran’s help to fill out the core form;
Mr Khantey put his hand into Mr Tran’s pocket to take some money;
Mr Khantey said he needed to borrow $200;
Mr Tran said he did not have money;
Mr Khantey said that he saw that Mr Tran’s wallet had some [money];
Mr Tran said to Mr Khantey, ‘why did you tell Neno that I hit the freezer and make Neno give me a warning two times? If I lost my job, who will feed my child? I have been working here for 17 years nothing has happened.’;
Mr Tran said he used his hand to push Mr Khantey ‘out and go away’ and that Mr Hing witnessed that Mr Tran did not hit Mr Khantey.

Incident on 29 July 2025 – evidence of Mr Khantey and Mr Hing

Mr Khantey

Mr Khantey is employed at ABC as a machine operator and has worked there since 5 June 2010.[13] Mr Khantey reports to Mr Leng and Mr Jiravut Kevin Bualuang, Night Shift Supervisor.

Mr Khantey said that on 29 July 2024 at approximately 9.40pm, Mr Tran approached him and asked if he had any money. Mr Khantey said that he did not have any money and patted his pants down to show Mr Tran that he had no money. Mr Khantey said that Mr Tran showed him a winning payout ticket from a gaming machine.[14]

Mr Khantey said that he jokingly then said words to the effect of ‘you got no money, show me the money’, to Mr Tran and jokingly reached for Mr Tran’s pockets slowly. Mr Khantey said that Mr Tran said it is easier to make money at the club then to work for ABC and that Mr Khantey is stupid for working nonstop like Pol Pot, when getting money from the club is easier. Mr Khantey said that Mr Tran started swearing at Mr Khantey calling him Mother F and Pol Pot so Mr Khantey walked away and continued to do his job.[15]

Mr Khantey said that a few minutes later Mr Tran walked over to Mr Hing. Mr Hing had asked Mr Khantey earlier to come and assist him when he had a spare minute to look at the core machine, as it was not running at full capacity. Mr Khantey said that he went to see Mr Hing and Mr Tran was standing next to him. Mr Tran said that Mr Kuong Srung Tea (another night shift supervisor) had told Mr Tran that Mr Khantey had complained about Mr Tran kicking the fridge and microwave table in the lunchroom. When Mr Khantey responded with ‘yes’, Mr Tran suddenly punched him in the chest with his clenched fist. Mr Khantey said that Mr Tran then started swearing at him, calling him Pol Pot and pointing at him. Mr Khantey said that Mr Tran continued to argue and swear at him about the kitchen complaint. Mr Khantey told Mr Tran to go back to his work area.[16]

Mr Khantey then called Mr Leng and told him that Mr Tran had punched him in the chest at the core machine. Mr Leng came to speak to Mr Khantey about what happened. Mr Leng asked Mr Khantey to provide a written statement. Mr Khantey subsequently gave a written statement to Mr Leng in Khmer on the night of the incident. Mr Leng arranged for the statement to translated into English by another employee, Mr Ly Lim who is a Night Shift Supervisor at another site.[17] Mr Khantey provided a copy of this statement to the Commission. The statement provided:

I, Seang Khantey employee number 1773 on Monday at 9:40pm the person’s name NGOC walking up and down and swear at me while my machine was not running and show me the picture of money that he brought to club and I asked him where is the money? and he punch me in my chest and he swear at me and point finger at my face. I request company manager remove NGOC from my machine Rewider 01.

For your information

Signed 29/07/2024[18]

During cross examination, Mr Khantey described his relationship with Mr Tran as a friendly co-worker relationship but said that Mr Tran was constantly swearing. Mr Khantey said that he did not want to create any problems, so he is always friendly at work. When asked by Mr Tran’s representative what he did to cause Mr Tran to push him, Mr Khantey said he did not do anything, and that he thinks that Mr Tran was still angry with him after the kitchen incident on 14 June 2024. Mr Tran’s representative put to Mr Khantey that Mr Tran pushed Mr Khantey because Mr Khantey tried to take Mr Tran’s wallet. Mr Khantey denied this and said that he did not touch Mr Tran, he is not a thief, that he did not want to borrow money, and that he had enough money of his own. Mr Khantey was firm in his evidence that he was punched in the chest but conceded that he was not seriously hurt.

Mr Hing

Mr Hing is employed by ABC as a core attendant and machine operator and has worked at ABC since 15 June 2015. Mr Hing reports to Mr Bualuang and Mr Leng.[19]

Mr Hing said that on 29 July 2024 at approximately 9.35pm, he was operating the core machine for line R01 and line 13. Mr Hing said that there was a problem with the machine as it was not running smoothly and at normal capacity.[20]

Mr Hing said that Mr Tran approached him and said, ‘if you don’t know how to fill in the form, I can do it for you.’ Mr Hing said that he told Mr Tran that he could do the form himself. Mr Hing said that he did not ask Mr Tran to come and help him and that Mr Tran just came by himself. Mr Hing said that Mr Tran was annoying him, and that he kept telling Mr Tran to go back to his work area, but he would not go.[21]

Mr Hing said that a few minutes earlier he had asked Mr Khantey to come over and help him fix the machine, when he had a spare minute. Mr Hing said that when Mr Khantey came over to help him, Mr Tran swore at Mr Khantey, saying ‘F’ words and calling him Pol Pot. Mr Hing said that Mr Tran was complaining to Mr Khantey for reporting him for kicking the fridge and microwave table in the kitchen, then suddenly, Mr Tran punched Mr Khantey in the chest. Mr Hing said that he tried to separate them, and he told Mr Tran to go back to his work area.[22]

Mr Hing said that Mr Tran kept talking about how Mr Khantey reported him for the kitchen incident. Mr Hing said that Mr Tran admitted that he did kick the fridge, but denied he was holding a knife and doing the stabbing action.[23]

Mr Hing said that he and Mr Khantey kept telling Mr Tran to go back to his work area.

but Mr Tran kept going on about the kitchen incident and continued to swear at Mr Khantey.[24]

Mr Hing said that finally, Mr Tran walked away and that shortly after, Mr Leng came down to investigate. Mr Hing said that Mr Leng asked him what happened and asked that Mr Hing provide a written statement. Mr Hing subsequently gave a written statement to Mr Leng in Khmer the night of the incident.[25] Mr Leng arranged for the statement to translated into English by Mr Lim. It provided:

I, Sreang Hing employee number 1967, on Monday at 9:40pm, I saw the person Name: Ngoc
throws a punch at Khantey for talking about Khantey lodged a complaint that Ngoc kick the
fridge before and he swear at Khantey

Signed
29/07/2024[26]

Incident on 14 June 2024

There was no dispute between the parties that during the incident on 29 July 2024, Mr Tran claimed that Mr Khantey had preciously accused Mr Tran of kicking the fridge in the lunchroom. Both Mr Khantey and Mr Leng gave evidence about this matter in their witness statements.

Mr Khantey said that on 14 June 2024 at approx. 3.15am, he went to the lunchroom and Mr Tran was already in there. Mr Khantey said that Mr Tran was upset because Mr Khantey did not shut the machine down earlier, as he ran it to finish the jumbo roll that was on there. Mr Khantey said that Mr Tran started verbally abusing him, calling him ‘Mother F’ and Pol Pot.[27]

Mr Khantey said that Mr Tran then kicked the microwave table while he was heating up his food. Mr Tran then went and kicked the vegetable crisper box at the bottom of the fridge and caused it to crack. Mr Khantey said that while Mr Tran was doing this, he was also walking around waiving a knife in his hand. Mr Khantey said that he immediately called Mr Leng to report the incident and Mr Tran’s behaviour.[28]

Mr Leng said that on 14 June 2024, at approximately 3.15am he received a call from Mr

Khantey and Mr Khantey informed him of the following:

Mr Khantey was calling as an incident had occurred, and he was afraid.
Mr Khantey was just in the tearoom when Mr Tran entered and then started to kick the crisp box in the refrigerator.
Mr Khantey went to heat his food in the pie warmer and then Mr Tran went to slam the pie warmer door and kicked the table where the pie warmer sits.
Mr Tran was also holding a knife and was waving it around.
Mr Tran also verbally abused Mr Khantey, calling him Mother F, and Pol Pot.
Mr Tran was upset, and annoyed with the production team, because Mr Khantey did not stop his machine early.
Mr Khantey was trying to finish off the jumbo roll on his machine, as his machine had broken down numerous times throughout the shift and was trying to have the machine ready for day shift to set up product change.
Mr Tran was also walking around to other workers on the floor mocking them and saying how stupid they are for working hard.[29]

Mr Leng said that after he ended the call with Mr Khantey, he called the other two night shift supervisors Mr Tea, and Mr BuaLuang and told them to meet with him. Mr Leng said that he told Mr Tea and Mr BuaLuang about his phone call with Mr Khantey and he said to them that they needed to go back to area W126H and investigate what had happened. Mr Leng said that he prepared an incident statement in relation to the incident reported to him by Mr Khantey and provided this to the Commission.[30]

Mr Leng said that is aware that Mr Tran received a verbal warning for the behaviour reported to him by Mr Khantey on 14 June 2024.[31]

Mr Khantey said that on 17 June 2024 he gave a written statement to Mr Leng about the incident. As his statement was written in Khmer, Mr Leng arranged for Mr Khantey’s statement to be translated by another employee into English. Mr Khantey provided a copy of this statement to the Commission.[32]

In relation to this incident, Mr Tran denied the accusations that he kicked the fridge and wielded a knife. Mr Tran said that if ABC believes these events occurred, it should provide the CCTV footage to support these claims.[33]

Investigation by Mr Leng

Mr Leng has held the role of Night Shift Manager since 1 March 2023.[34] In this role, Mr Leng is responsible for all aspects of the business, particularly the day to day operations and service requirements on night shift. Mr Leng is also responsible for all safety matters on night shifts.[35] Leng said that on 29 July 2024 at approximately 9.45pm, he received a call from Mr Khantey advising that he had been punched by Mr Tran in the chest. Mr Leng said that after receiving this report from Mr Khantey, he went down to the floor to investigate what had happened and took a night shift supervisor, Mr Kuong Srun Tea with him as a witness.[36]

Mr Leng said that he first spoke with Mr Khantey and asked him what had happened. Mr Khantey told Mr Leng that Mr Tran had punched him in the chest near the core machine. Mr Leng said that he asked Mr Khantey if anyone saw what had happened. Mr Khantey told him that Mr Hing was present when he was punched by Mr Tran. Mr Leng said he then went to speak with Mr Hing to get his account. Mr Leng said that Mr Hing confirmed that Mr Tran was arguing with Mr Khantey and had punched him in the chest close to his machine.[37]

Mr Leng said that he asked Mr Hing, why everyone was at his workstation. Mr Hing told Mr Leng that he had asked Mr Khantey earlier in the shift, when he had a spare moment to help him adjust his machine as it was not operating at its full capacity. In relation to Mr Tran, Mr Hing said, ‘you know how he is. He just like to wander around.’ Mr Leng asked Mr Hing if he heard what Mr Khantey and Mr Tran were arguing about. Mr Leng said that Mr Hing told him that Mr Tran was furious with Mr Khantey for reporting Mr Tran for kicking the fridge, and pie warmer table.[38]

Mr Leng said that he then asked Mr Quang Sanh Nim, a forklift driver who is fluent in Vietnamese to come with him to speak to Mr Tran and to support him and assist in interpreting if required. Mr Leng said that he then went to speak with Mr Tran to get his account, with Mr Nim.[39]

Mr Leng said that he began by asking Mr Tran why he was outside of his work area, as he was supposed to be at the packing station for line R01. Mr Leng said that Mr Tran told him that Mr Hing had asked Mr Tran for help.[40]

Mr Leng said that he was surprised by this as Mr Hing had not said that he had ever asked Mr Tran for any help, and Mr Leng did not believe that Mr Tran had the experience to fix the core machine, like Mr Khantey does. Mr Leng said that he then asked Mr Tran for his version of events. Mr Leng said that Mr Tran was not very co-operative with answering his questions about the incident and that Mr Tran laughed and appeared to be trying to change the subject by joking and talking about other things not related to Mr Leng’s questions or the incident.[41]

Mr Leng said that as he could not get a straight answer out of Mr Tran, he called Mr Ninos Khoshaba, Assistant General Manager for advice. Mr Leng said that Mr Khoshaba told him to direct Mr Tran to go home while the matter was investigated, that Mr Tran was to come back for his shift the following night as normal for a 6pm start and that and at 8pm there would be a discussion about the incident with Mr Tran, Mr Leng and Mr Khoshaba.[42] Mr Nim said that in accordance with Mr Leng’s instructions he:

advised Mr Tran that there will be a formal meeting at 8pm the next night, 30 July 2024, with him, Mr Khoshaba and Mr Leng.
informed Mr Tran that this is a serious matter and that he should bring a support person to the meeting which could also assist him with interpreting and being a witness.
advised Mr Tran that if he does not bring a support person, the company can provide a Vietnamese speaking work colleague.[43]

Mr Nim said he believed Mr Tran understood their conversation and that Mr Tran then went home.[44]

Events of 30 July 2024

Evidence of Mr Khoshaba and Mr Leng

Mr Khoshaba is employed at ABC as the Assistant General Manager and Group People and Culture Manager. He has held this role since 1 April 2019. In this role Mr Khoshaba reports to Mr Ming Ly, General Manager.[45]

Mr Khoshaba commenced employment with ABC on 27 April 2011. Prior to his current role, he worked at ABC as the Business Development Manager. In his current role, Mr Khoshaba is responsible for assisting Mr Ly with all aspects of the business, in particular the day-to-day operations and service requirements. Mr Khoshaba is also responsible for all human resources matters.[46]

Mr Khoshaba said that under the enterprise agreement ABC may dismiss an employee without notice for serious misconduct including ‘assault or fighting at work’, ‘an act that endangers the life of self or others’ and ‘physical or verbal abuse’. Mr Khoshaba said that ABC also has a Work Health and Safety Handbook which clearly states that, ‘violence, aggressive or anti-social behaviour will not be tolerated’ and that ‘physical altercations (fighting) will result in dismissal and/or police interaction’.[47]

Mr Khoshaba said that on 30 July 2024 at around 9.15am he reviewed the CCTV footage of the incident on 29 July 2024. The monitors for these cameras are in the safety office. Mr Khoshaba said that he viewed the footage with the Group WHS Manager and another safety officer. Mr Khoshaba said that as the footage on the CCTV automatically deletes after a few weeks, he decided to record the footage on his mobile phone to preserve it and provided this record to the Commission.[48]

Mr Leng said that on 30 July 2024, he received handwritten statements from Mr Khantey and Mr Hing dated 29 July 2024. Mr Leng said that as the statements were written in Khmer, he had them translated into English by another employee, Mr Lim. Mr Leng said that he then left the statements for Mr Khoshaba to review in the safety office.[49]

Mr Leng said that when Mr Tran arrived for his shift at 6pm he told Mr Leng that he had brought a statement. Mr Leng told Mr Tran to being the statement with him to the meeting at 8pm.[50]

Mr Khoshaba said that at 7:14pm, he called Mr Leng and asked him if Mr Tran was at work and if Mr Tran had arranged a support person. Mr Khoshaba said that Mr Leng told him that Mr Tran was at work, but he did not bring a support person. Mr Khoshaba then asked Mr Leng to contact Mr Viem Hua, who is employed by ABC as a Nightshift Supervisor. Mr Khoshaba said that he decided to ask Mr Hua to assist with interpreting during the 8pm meeting because he is fluent in both English and Vietnamese. Mr Khoshaba said that Mr Hua works at a different site (which is approximately 150 metres away) and would therefore be more neutral. Mr Khoshaba asked Mr Leng to explain to Mr Hua that they would be having a meeting at 8pm with Mr Tran about an alleged physical assault and ask if he would come to the office before 8 pm to help with interpreting in the meeting.[51]

Mr Khoshaba said that on 30 July 2024 at around 8:00pm, he attended a meeting with Mr Tran along with Mr Leng and Mr Hua in the safety office located at the workplace. Prior to the commencement of the meeting, Mr Khoshaba said that he explained to Mr Hua that his role is to assist and support Mr Tran and to assist with interpreting.[52]

Mr Khoshaba said at the start of the meeting he asked Mr Tran if he was good and he said, ‘yes thank you’ and nodded. Mr Khoshaba said that he then asked Mr Hua to explain to Mr Tran in Vietnamese that this is a serious matter, which is why Mr Hua was present and available to interpret for Mr Tran. Mr Khoshaba said he also asked Mr Hua to tell Mr Tran that if he did not understand Mr Hua or wanted another support person, like the union, a friend or family member, he could do so.[53]

Mr Khoshaba said that Mr Hua told him that Mr Tran had responded to him that he was okay for Mr Hua to continue as his support person and interpreter.[54]

Mr Khoshaba said that he then asked Mr Leng whether Mr Tran had been told he could bring a support person. Mr Leng said yes and also told Mr Khoshaba that Mr Tran was happy to use Mr Hua.[55]

Mr Khoshaba said that he asked Mr Hua to let Mr Tran know in Vietnamese that this was a serious matter, and that Mr Tran has had other warnings. Mr Tran then provided a written statement in Vietnamese. Mr Khoshaba said that he asked Mr Hua to translate the statement and read it out loud in English. Mr Hua read out an English translation of Mr Tran’s statement. Mr Khoshaba said that he then asked Mr Hua to tell Mr Tran, that he had reviewed the CCTV footage from yesterday during the alleged incident and had received statements from other employees and wanted to give Mr Tran another chance to explain his version of events.[56]

Mr Hua told Mr Khoshaba that Mr Tran responded by saying that he knew he had received other warnings and knew he would be fired if he hit someone.[57]

Mr Hua told Mr Khoshaba that Mr Tran said that he had showed Mr Khantey a poker machine payout ticket of how much he won at the club and said that Mr Khantey was asking him for $200. Mr Tran then said that he did not hit Mr Khantey but pushed him.[58]

Mr Khoshaba said that he then explained to Mr Tran through Mr Hua that:

(a) Mr Khoshaba had reviewed the CCTV footage and that touching someone or pushing them is an assault;
(b) that it appears he had punched and assaulted Mr Khantey;
(c) that ABC was considering terminating his employment; and
(d) Mr Tran would be given 20 minutes to think about this and to come back and tell Mr Khoshaba why ABC should not terminate his employment.[59]

Mr Khoshaba said that he and Mr Leng left the room at approximately 8.15pm. Mr Hua stayed with Mr Tran. Mr Khoshaba said that while Mr Leng and Mr Khoshaba were outside the room, Mr Hua translated Mr Tran’s Vietnamese written statement into English. Mr Leng and Mr Khoshaba returned to the room approximately 20 minutes later.[60]

Mr Khoshaba said that he and Mr Leng returned Mr Tran spoke, and Mr Hua told them that Mr Tran said the following:

(a)   he has two young boys, 7 and 5 years old;
(b)   he has a home loan and a car loan;
(c)   it will be hard to find a job at his age, especially with hearing aids;
(d)   it will be hard to buy grocery bills and manage cost of living;
(e)   he offered to apologise to Mr Khantey;
(f)    he has been working for ABC for 17 years; and
(g)   he accepts that he has made mistakes over the years and asked for one more chance.[61]

Mr Hua also said that Mr Tran had said that if he lost his job, he would kill his family. Mr Khoshaba was very concerned about this comment and asked Mr Hua to clarify what Mr Tran said and told him that Mr Khoshaba would have to consider calling the police if Mr Tran was threatening to hurt or kill any of his family members.[62]

Mr Khoshaba said that Mr Hua then spoke to Mr Tran further in Vietnamese. Mr Hua said that Mr Tran had told him that he did not say that he will kill his family, but that if he loses his job, he would not be able to buy food, and this will kill his family. Mr Hua said to Mr Khoshaba that he thought Mr Tran had changed his story about what he had said and was claiming that Mr Hua had misunderstood him.[63]

Mr Hua then told Mr Khoshaba that Mr Tran asked if he could have one more chance and if he does anything wrong in the future he would resign. Mr Khoshaba told Mr Tran, through Mr Hua that:

(a) he has been warned several times in the past about his behaviour, including not wearing his safety shoes, eating in the production area, leaving work without telling anyone, using his mobile phone during work time, and behaving aggressively towards other employees; and
(b) ABC does not accept or tolerate violence, and it cannot accept violence just because someone has been with ABC a long time, or because of their age, or because of their hearing loss. If ABC gives Mr Tran a chance, the next person to hit someone will say that ‘you gave Mr Tran a chance, so I should have a chance’.[64]

Mr Hua, Mr Leng and Mr Khoshaba then left the room and went outside to discuss Mr Tran’s responses. They spoke for about 10 minutes. After considering Mr Tran’s comments, Mr Khoshaba said to Mr Leng and Mr Hua that he thought Mr Tran was just ‘talking silly’, and he did not feel he was going to harm his family. Mr Khoshaba also told them that he did not think it was necessary to call the police. Mr Leng said he agreed, and Mr Hua nodded in agreement.[65]

Mr Khoshaba said he then said to Mr Leng that:

(a)   He thought Mr Tran’s response was unsatisfactory given the serious nature of his conduct;
(b)   Mr Tran’s version of what happened was inconsistent with the accounts given by Mr Khantey and Mr Hing, as well as the CCTV footage; and
(c)   He believed Mr Tran had provided some false information in his response to the allegations.[66]

Mr Khoshaba said that Mr Leng agreed and said that Mr Tran had also lied about Mr Hing asking and him to help with fixing the core machine, as Mr Tran did not have any knowledge about how to fix the core machine.[67]

Mr Khoshaba said that he also spoke to Mr Leng about the previous warnings ABC had given to Mr Tran in relation to his conduct including not wearing his safety shoes, eating in the production areas, leaving work without telling anyone, kicking and damaging company property, using his mobile phone during work time and intimidating and threatening other employees with knives and forks.[68] Mr Khoshaba provided the Commission with a copy of various incident reports and the written warnings Mr Tran received while employed at ABC.[69]

Mr Khoshaba said Mr Leng agreed and raised that this was not the first time Mr Tran had been aggressive towards other workers, and that several complaints had been made about Mr Tran. Mr Leng told Mr Khoshaba that Mr Tran also had laughed and joked about what happened when Mr Leng first went to investigate and tried to speak to him about the incident.[70]

Mr Khoshaba told Mr Leng that, on balance, he believed that Mr Tran had punched Mr Khantey and this was serious enough to terminate his employment. Mr Leng said he also thought ABC should terminate Mr Tran.[71]

Mr Khoshaba said that he remembered thinking at the time that:

(a) He could not have trust and confidence that Mr Tran would not engage in similar behaviour against another employee in the future; and
(b) Allowing this type of behaviour to go unpunished, would set a negative precedent for any future incidents and would be against ABC policy of not tolerating violence in the workplace.[72]

Mr Khoshaba said that he then went to his office alone and typed up Mr Tran’s termination letter. Mr Khoshaba said that he then went back into the room with Mr Leng and Mr Hua to speak with Mr Tran. Mr Khoshaba said that he said to Mr Tran through Mr Hua, that ABC had decided to terminate Mr Tran’s employment. Mr Khoshaba said that this is not something that he liked to do because he knew that losing a job can impact on a person’s life in a big way, however, he also has a duty of care to all of ABC’s workers.[73]

Mr Khoshaba said that he handed Mr Tran the termination letter he had drafted and asked Mr Hua to read it out to Mr Tran in Vietnamese, line by line. Mr Hua did so. After Mr Hua had read the letter to Mr Tran in Vietnamese, Mr Khoshaba asked Mr Tran if he understood what is happening and he nodded. Mr Khoshaba then asked Mr Tran to sign the English translated version of his statement which Mr Hua had written, which Mr Tran did.[74]

Mr Khoshaba then told Mr Tran, through Mr Hua:

(a)That the decision would take effect immediately and Mr Tran no longer works for ABC;
(b)That he wished Mr Tran well; and
(c)Mr Tran could go to his workstation to collect his belongings and then hand in his clock in card.[75]

Mr Leng, Mr Hua and Mr Khoshaba then walked Mr Tran to his car.[76] Mr Khoshaba said that after Mr Tran left, Mr Leng and Mr Khoshaba went back to Mr Khoshaba’s office and wrote out a file note about what had happened during the meeting with Mr Tran. Mr Leng also wrote out his own file note.[77] Mr Khoshaba provided a copy of this file note to the Commission.[78]

Mr Tran’s evidence

Mr Tran said that on 30 July 2024, he went into work at 6pm and did his work as normal. At around 8pm that night, Mr Khoshaba told Mr Tran to go into the office. Mr Tran said that he provided Mr Khoshaba the statement he had written setting out the events of the night of 29 July 2024. Mr Tran said that ABC organised for Mr Hua to translate the letter he had written onto a different piece of paper and that Mr Khoshaba reviewed this and said it was not good enough.[79] Mr Khoshaba denied that he said this.[80]

Mr Tran said that he did not feel he had a choice in accepting Mr Hua as his interpreter, as he was the only person available.[81] Mr Tran said that during the meeting, he initially did not fully understand the seriousness of the situation. He attempted to be polite and agreeable, not realizing that ABC was planning to dismiss him. Mr Tran said that when he understood that termination was a possibility, he asked to be shown the video footage of the incident, but the ABC representatives refused, claiming the video had been deleted. They continued to inform Mr Tran that they were considering termination but gave Mr Tran time to reflect and provide reasons why he should not be dismissed.[82]

Mr Tran said that he told the interpreter that he needed money to feed his children, but that Mr Tran did not think that the interpreter interpreted this correctly as the interpreter told Mr Khoshaba that Mr Tran was going to kill his wife and his children. Mr Tran said that Mr Khoshaba was going to call the police. Mr Tran said that he was horrified as all he was trying to tell the interpreter was that he did not want to lose his job so he could feed his family. Mr Tran said that he told Mr Khoshaba he would do whatever he wanted as he did not want the police involved. Mr Tran said that Mr Khoshaba then told him he would give Mr Tran 20 minutes to reflect and to see whether there was anything else he could say to help him keep his job. Mr Tran said that when Mr Khoshaba came back, Mr Khoshaba pressured Mr Tran into agreeing with the contents of the translated statement and to sign the translated version of events, otherwise he would call the police. Mr Tran said that he did as Mr Khoshaba said as he felt like he had no other choice otherwise Mr Khoshaba would call the police, and he did not want them to come. Mr Tran said that Mr Khoshaba said to him that once Mr Tran signed the statement, he could go home without any police coming. Mr Tran signed the statement and left the workplace.[83] Mr Khoshaba denied that he said to Mr Tran that if he did not sign his statement, Mr Khoshaba would call the police on him.[84]

Mr Tran said that as he was leaving, Mr Khoshaba also verbally assaulted him saying that he was crazy, sick in the head, needed to go to hospital to get treated and to go home. Mr Tran said that Mr Khoshaba also gave him a pamphlet for an Employee Assistance Program but as he was giving the pamphlet to Mr Tran, he said that Mr Tran would not be able to get a job as he doesn’t know any English and laughed at Mr Tran. Mr Tran said that Mr Khoshaba then walked him out to his car and continued laughing at him and said he would not be able to find work. Mr Khoshaba denied Mr Tran’s statements that Mr Khoshaba verbally assaulted him and called him crazy, sick in the head, that he needs to go to the hospital to get treated, to go home, and that Mr Khoshaba laughed at him.[85] Mr Khoshaba said that he did not say those words to Mr Tran, nor did he laugh at him.[86]

Mr Tran said that in the weeks following his termination, he was absolutely devasted. Mr Tran said that he had a mental breakdown and did not have any sort of emotional or mental capacity to put in an unfair dismissal claim as he was very depressed about how sudden it was. Mr Tran said that he is also deaf in both ears and because he lost this job, he does not have the money to buy proper hearing aids and to properly maintain them. Mr Tran said that his depression was so bad that he could not speak with anyone and had difficulty hearing people without a proper, well maintained hearing aid. Mr Tran said that he felt very isolated, and his depression worsened. He could not eat, drink or sleep well. Mr Tran said he would only be able to sleep for a few hours and wake up in the middle of the night in a panic.[87]

Mr Tran said that he also did not want to speak with a lawyer straight after his dismissal as he was very afraid of being involved in a court again. Last year, he was involved in an incident and had an AVO put out against him. Mr Tran had to go to court in which the charge was dismissed. Nonetheless his experience made him afraid of the legal system.[88]

Mr Tran said that he could not comprehend that after working for 17 years he was dismissed overnight without any further time to investigate or explain himself. Mr Tran said that he strongly believes that the sudden termination was not about this incident but rather because he had previously pursued a worker’s compensation claim (which ended up being unsuccessful) against ABC for his deafness and that management disliked him.[89] In response, Mr Khoshaba stated that Mr Tran has never lodged a workers compensation claim. Mr Khoshaba stated that Mr Tran obtained a Certificate of Capacity/Certificate of Fitness for a back injury dated 17 April 2024 which he provided to ABC. Mr Khoshaba provided a copy of this document to the Commission and noted that it was different from the Certificate of Capacity/Certificate of Fitness dated 17 April 2024 filed by Mr Tran in his application.[90]

Mr Khoshaba said that after Mr Tran was advised that ABC would arrange for an independent medical assessment, his understanding is that Mr Tran decided he did not wish to continue with the claim. Mr Khoshaba said that Mr Tran’s right to a workers compensation claim has nothing to do with his termination, and he has the right to pursue that separately.[91]

Mr Tran said that in the months leading up to these events, he had received several formal warnings, many of which he believes were unwarranted. These included warnings for leaving work early when he was unwell, using his mobile phone (when other employees also used their phones without reprimand), and eating in the production area (which was not a contamination risk). Mr Tran said that he had no intention of causing trouble, and he signed these warnings to avoid conflict.[92]

Mr Tran believes the claims made against him are part of a pattern of mistreatment that began when Mr Leng returned to ABC. Mr Tran said that Mr Leng had shown clear animosity towards him and had issued numerous warnings against him. Mr Tran said that he believes that this is because of his independent nature and his medical issues, which limited his ability to lift heavy items or wear safety shoes, which was supported by a doctor’s note. Mr Tran said that he believed the management at ABC had personal reasons for wanting to terminate him and used the incident with Mr Khantey as an excuse. Mr Tran also believes that the witnesses ABC has provided are not independent, as they are still under the influence of management.[93]

Mr Tran said that he is the only Vietnamese person at ABC and that everyone else is Cambodian and that they seem to hate him.[94] In response, Mr Khoshaba said Mr Tran is not the only Vietnamese person at ABC as ABC employs several workers of Vietnamese origin who work on dayshift and nightshift, including Mr Hua.[95]

When can the Commission order a remedy for unfair dismissal?

Section 390 of the FW Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that Mr Tran was protected from unfair dismissal at the time of being dismissed; and

(b) Mr Tran has been unfairly dismissed.

Both limbs must be satisfied. I am therefore required to consider whether Mr Tran was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that Mr Tran was so protected, whether Mr Tran has been unfairly dismissed.

When has a person been unfairly dismissed?

Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Initial matters

There is no dispute that Mr Tran has been dismissed from his employment.

Under s.396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

I have decided these matters below.

Section 394(2) requires an application to be made within 21 days after the dismissal took effect.

Both parties submitted that the termination took effect on 30 July 2024. On 11 September 2024 Mr Tran filed the application with the Commission which was outside the required timeframe. The Commission subsequently issued a decision extending time for Mr Tran to file the application to 11 September 2024 on the grounds that there were exceptional circumstances.[96]

Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or his employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i)a modern award covers the person;

(ii)an enterprise agreement applies to the person in relation to the employment;

(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

It was not in dispute, and I find, that at the time of dismissal, Mr Tran completed at least the minimum period of employment with ABC, and that an enterprise agreement applied to Mr in relation to the employment.

I am therefore satisfied that, at the time of dismissal, Mr Tran was a person protected from unfair dismissal.

It was not in dispute, and I find, that Mr Tran’s dismissal was not a case of genuine redundancy and that the Small Business Fair Dismissal Code does not apply.

Having considered each of the initial matters, I am required to consider the merits of the 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.[97]

I set out my consideration of each of these criteria below.

Was there a valid reason for the dismissal related to Mr Tran’s capacity or conduct?

In order to be a valid reason, the reason for the dismissal should be ‘sound, defensible or well founded’[98] and should not be ‘capricious, fanciful, spiteful or prejudiced.’[99] However, 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.[100]

Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[101] 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.[102]

ABC dismissed Mr Tran because Mr Tran punched Mr Khantey at work on the night of 29 July 2024. Mr Tran denied punching Mr Khantey and claimed that he pushed Mr Khantey in self-defence because Mr Khantey was trying to take $200 from Mr Tran.

ABC undertook an investigation of the incident almost immediately. Mr Leng interviewed Mr Khantey and Mr Hing separately on the night of the incident and made a written record of his conversation with each of them in an incident report which was dated 29 July 2024.[103] Mr Leng recorded in his incident report that Mr Khantey and Mr Hing both said that Mr Tran had punched Mr Khantey in the chest near the core machine. Mr Leng also recorded that Mr Hing said:

Mr Khantey was at Mr Hing’s work area because he had asked Mr Khantey earlier that when Mr Khantey had a spare moment to make some adjustments to the core machine because it was not operating at its full capacity.
Mr Hing did not know why Mr Tran was at his work station and said ‘you know how Jamie is. He just like to wander around.’
In response to Mr Leng’s question about what Mr Khantey and Mr Tran were arguing about, Mr Hing said that Mr Tran was blaming Mr Khantey for reporting the previous incident of Mr Tran kicking the fridge and microwave table in the tea room.

Mr Leng recorded in his incident report that when he attempted to asked Mr Tran for his version of events, ‘as always, he was just laughing and taking jibberish in a mixture of English and Vietnamese and changing the subject.’ After Mr Leng asked Mr Hua to assist with interpreting, Mr Leng recorded that, ‘once again this was going nowhere as Jamie kept on talking about things non-related, and not being very cooperative’ and, ‘Jamie was just laughing and joking around and not taking the matter seriously.’

Mr Khantey, Mr Hing and Mr Tran all provided written statements about the incident, soon after it occurred. The statements by Mr Khantey and Mr Hing were provided on the night of the incident and Mr Tran’s statement was provided the following day. Each of these statements was very brief.

In his statement, Mr Tran said that:

Mr Hing had asked for Mr Tran’s help to fill out the core form;
Mr Khantey put his hand into Mr Tran’s pocket to take some money;
Mr Khantey said he needed to borrow $200;
Mr Tran said he did not have money;
Mr Khantey said that he saw that Mr Tran’s wallet had some [money];
Mr Tran said to Mr Khantey, ‘why did you tell Neno that I hit the freezer and make Neno give me a warning two times? If I lost my job, who will feed my child? I have been working here for 17 years nothing has happened’; and
Mr Tran said he used his hand to push Mr Khantey ‘out and go away’ and that Mr Hing witnessed that Mr Tran did not hit Mr Khantey.

In his statement, Mr Khantey said that Mr Tran had shown him a picture of money that he ‘brought to the club’ and Mr Khantey asked Mr Tran ‘where is the money?’ Mr Tran then punched Mr Khantey in his chest, swore at Mr Khantey and pointed his finger at Mr Khantey’s face.

In his statement, Mr Hing said that he saw Mr Tran throw a punch at Mr Khantey because Mr Khantey lodged a complaint that Mr Tran kicked the fridge and also that Mr Tran swore at Mr Khantey.

Mr Khantey and Mr Hing provided witness statements to the Commission dated 30 January 2025 which was more than six months after the incident. I understand from the evidence that the process by which these statements were prepared is that Mr Khantey and Mr Hing answered questions about the incident put by an employee of ABC who then prepared their respective statements based on these answers. These statements were written in English but read out to Mr Khantey and Mr Hing in Khmer by Mr Leng.[104] The statements appear to have been prepared after Mr Khantey and Mr Hing viewed the CCTV footage. While they contain useful background information, I believe that the CCTV footage and the statements prepared by Mr Khantey and Mr Hing on the night of the incident provide a more reliable version of the events of 29 July 2025.

Mr Khantey and Mr Tran agree that they had a conversation about money. There does not appear to be any dispute that Mr Tran initiated this conversation as Mr Tran’s second witness statement records that Mr Tran made a joke about making more money at the club since the machine was not working. Mr Tran goes on to say in his statement that he showed Mr Khantey photos on his phone of a winning lottery ticket. The CCTV footage shows Mr Tran showing something on his mobile phone to Mr Khantey. In the statement that Mr Khantey made on the night of the incident, Mr Khantey referred to Mr Tran showing him a picture of money that he ‘brought to the club’ and that he said in response to Mr Tran ‘where is the money?’ Mr Tran’s statement of 30 July 2025 records that Mr Khantey asked to borrow $200 from him. It is unclear from the evidence whether the winning lottery ticket was for $200. If this was the case, I can understand why Mr Tran might have interpreted Mr Khantey’s question ‘where is the money’ as a request to borrow Mr Tran’s winnings of $200 as Mr Tran’s first language is Vietnamese and Mr Khantey’s first language is Khmer but when they talked to each other, they spoke in English. Both Mr Tran and Mr Khantey were assisted at the hearing by a Vietnamese and Khmer interpreter respectively, so it is reasonable to assume that they may have had difficulty communicating to each other in English and it is possible that this explains their different evidence about what was said during the initial conversation.

The CCTV footage shows that Mr Tran approached Mr Khantey in Mr Khantey’s area, that Mr Khantey should his head in a ‘no’ gesture a number of times in response to statements made by Mr Tran, that Mr Khantey touched his own pockets, that Mr Tran showed Mr Khantey something on his phone and that Mr Khantey then gestured towards Mr Tran’s pockets.

Ultimately, I do need to determine precisely what was said during this initial conversation although the conversation about money and Mr Khantey’s gestures towards Mr Tran’s pockets provides important context for the conversation which followed.

After the conversation with Mr Khantey, Mr Tran approached Mr Hing. Mr Tran agreed in cross-examination that he initiated this approach and that Mr Hing did not ask him to come into his work area. This was different to the evidence in Mr Tran’s witness statements. The CCTV shows that while Mr Tran was in Mr Hing’s work area, Mr Khantey came into the area. Mr Khantey walks past Mr Tran and appears to bend down to the left of where Mr Tran is standing. Mr Tran raises his right arm as if he is about to punch Mr Khantey and makes a fast motion towards Mr Khantey consistent with a punch but the point of contact is not visible on the CCTV. Mr Hing is facing Mr Khantey and Mr Tran during the incident.

Although it is clear from the CCTV footage that Mr Hing saw the incident, his evidence during the hearing was initially that he did not see the incident during cross-examination but during re-examination said that he did see the incident. The circumstances in which Mr Hing gave evidence were very challenging. It was clear that Mr Tran’s representative was not skilled or experienced in cross-examination which led to Mr Hing being asked many questions which were confusing or difficult to understand. The difficulties in understanding these questions would have been compounded by the fact that they required interpretation from Khmer to English. In these circumstances, I cannot be confident that the evidence of Mr Hing accurately reflected what occurred. This is through no fault of Mr Hing. In the circumstances, I have disregarded Mr Hing’s evidence that he saw Mr Tran punch Mr Khantey, as I believe that it would be unfair to Mr Tran to take this evidence into account. I do so reluctantly given that I believe that Mr Tran’s representative is partially responsible for the confusion which has ultimately resulted in Mr Hing’s evidence about this matter being unreliable.

As the CCTV footage does not show the point where Mr Tran makes contact with Mr Khantey, I must determine whether Mr Tran pushed or punched Mr Khantey based on the evidence of both Mr Tran and Mr Khantey. Although there were aspects of Mr Tran’s evidence which were untruthful, such as his statement that Mr Hing had invited Mr Tran into Mr Hing’s work area, this does not necessarily mean that Mr Tran is being untruthful about pushing rather than punching Mr Khantey. Further, the incident happened extremely quickly and although I have no reason to doubt Mr Khantey’s evidence that Mr Tran punched Mr Khantey, it is possible that he is mistaken and that Mr Tran used an open hand rather than a closed fist during the incident. I am therefore not satisfied on the balance of probabilities that Mr Tran punched Mr Khantey. I accept Mr Tran’s evidence that he did not use a closed fist, however based on the CCTV footage, I find that it is more accurate to describe Mr Tran’s action as hitting Mr Khantey with an open hand rather than pushing him.

There is no dispute between the parties that Mr Tran expressed concerns about the fridge incident on 14 June 2024 immediately after hitting Mr Khantey. This suggests that the reason that Mr Tran hit Mr Khantey was because he was angry about this incident. I think that this is likely to be the case but I also think that it is possible that Mr Khantey repeated his earlier gesture towards Mr Tran’s pockets at Mr Hing’s work station. I say this because in Mr Khantey’s statement of 29 July 2024, he said that Mr Tran punched him after he said ‘where is the money?’ and because the CCTV shows Mr Khantey bending down to the left of Mr Tran. The period between Mr Khantey bending down and Mr Tran hitting Mr Khantey is less than a second. This would not be sufficient time for Mr Khantey to touch Mr Tran’s pockets or attempt to take his wallet so I do not accept that either of these events occurred.

It is possible that a person in Mr Tran’s position could be taken by surprise by Mr Khantey gesturing towards his pockets and instinctively push him away, however the CCTV footage shows that this is not what occurred here. The CCTV footage shows that Mr Tran raised his arm in anger towards Mr Khantey. The gesture was an aggressive not a defensive one.

As to Mr Tran’s claim that he pushed Mr Khantey in self-defence, both parties referred me to the Full Bench decision in NSW Trains v Al-Buseri[105] which confirmed that the common law test to be applied in cases involving self-defence is whether a person believes on reasonable grounds that it was necessary in self-defence to do what they did. There is both a subjective and an objective element to the test. The subjective element concerns the belief that the conduct was necessary in the circumstances. The objective element goes to whether there were reasonable grounds for the belief.[106] I have real doubts about whether Mr Tran honestly believed that Mr Khantey intended to take money from him. However, even if I am wrong about this, there is no evidence to support that there were reasonable grounds for Mr Tran to hold this belief. It was Mr Tran who initiated the discussion about money and he agreed that the conversation between himself and Mr Khantey where Mr Khantey initially gestured towards Mr Tran’s pockets was friendly and jovial. There was no evidence that Mr Khantey had ever taken money from Mr Tran or anyone else in the workplace. The only plausible explanation for Mr Tran’s conduct is that he suddenly became angry with Mr Khantey when Mr Khantey was joking around with Mr Tran because Mr Tran was thinking about the fridge incident.

Having regard to all of the evidence before me, I make the following findings in relation to the events of 29 July 2024:

a.Mr Tran approached Mr Khantey and Mr Hing in their respective workstations at his initiative and was not invited by either of them to do so.
b.Mr Tran initiated a conversation with Mr Khantey about money in Mr Khantey’s work area and showed Mr Khantey a photo on his mobile phone of a winning lottery ticket.
c.Mr Khantey jokingly asked Mr Tran for money and gestured towards Mr Tran’s pockets. Mr Khantey did not touch Mr Tran.
d.Mr Tran left Mr Khantey’s work area and entered Mr Hing’s work area.
e.Shortly after, Mr Khantey also entered Mr Hing’s work area as Mr Hing had requested assistance from Mr Khantey in relation to his machine.
f.Mr Khantey resumed his jovial conversation with Mr Tran about money and gestured towards Mr Tran’s pockets.
g.By this time, Mr Tran was angry with Mr Khantey about the fridge incident and hit Mr Khantey with an open hand.
h.In hitting Mr Khantey with an open hand Mr Tran assaulted Mr Khantey. This is the case regardless of the fact that Mr Khantey did not appear to suffer any injury. Mr Tran was not acting in self defence.

Under 16.4 of the enterprise agreement, assault and physical or verbal abuse are examples of serious misconduct.

j.Mr Tran’s assault of Mr Khantey was a valid reason for the dismissal related to Mr Tran’s capacity or conduct.

Was Mr Tran notified of the valid reason?

Proper consideration of s.387(b) requires a finding to be made as to whether Mr Tran ‘was notified of that reason’. Contextually, the reference to ‘that reason’ is the valid reason found to exist under s.387(a).[107] On 30 July 2024, Mr Tran was provided with a letter of termination which said that he deliberately assaulted another employee on the night of 29 July 2024 and caused serious and imminent risk to the health and safety of others. On this basis I find that Mr Tran was notified of the valid reason.

Was Mr Tran given an opportunity to respond to any reason related to his capacity or conduct?

I find that Mr Tran was given an opportunity to respond to the reason for termination when he was invited to provide a written statement about the incident and during the meeting with Mr Leng and Mr Khoshaba on 30 July 2025. However I have some concerns about the procedural aspects of the disciplinary process which I deal with below.

Did ABC unreasonably refuse to allow Mr Tran to have a support person present to assist at discussions relating to the dismissal?

Mr Leng said that he told Mr Tran to bring a support person to the interview on 30 July 2024 however Mr Tran disputes this. Ultimately, Mr Tran was supported by Mr Hua at the meeting who also acted as Mr Tran’s interpreter, however Mr Hua was selected by ABC rather than Mr Tran. Unusually Mr Leng and Mr Khoshaba involved Mr Hua in their discussions about Mr Tran during the disciplinary meeting which appears to me to be inconsistent with the usual role of a person who is charged with supporting an employee. Ultimately, I find that ABC did not unreasonably refuse to allow Mr Tran to have a support person present to assist at discussions relating to the dismissal however I have some concerns about the procedural aspects of the disciplinary process which I deal with below.

Was Mr Tran warned about unsatisfactory performance before the dismissal?

As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.

To what degree would the size of ABC Tissue Products’ enterprise be likely to impact on the procedures followed in effecting the dismissal?

ABC has 700 employees and dedicated human resources personnel. In those circumstances, there was no reason for it not to follow fair procedures in considering whether Mr Tran should have been dismissed. This is a matter which weighs in favour of a finding of unfairness.

To what degree would the absence of dedicated human resource management specialists or expertise in ABC’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

There is no suggestion that there is an absence of dedicated human resource management specialists or expertise in ABC’s enterprise. As such, this is a neutral consideration.

What other matters are relevant?

Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

It has long been established that the effects of dismissal on the personal or economic situation of the dismissed employee may be taken into consideration under s.387(h) of the FW Act.[108]

An employee’s long and satisfactory work performance or history may be taken into consideration under s.387(h) of the FW Act and, depending on all the circumstances, may weigh in favour of a conclusion that the dismissal of the employee was harsh, unjust or unreasonable.[109]

A number of matters raised by the parties are potentially relevant to my consideration under this provision, including Mr Tran’s employment history and length of service, previous warnings, procedural issues, Mr Tran’s personal circumstances and the impact of the dismissal on Mr Tran.

Procedural issues

There are multiple issues in relation to the manner in which the disciplinary process was carried out which may weigh in favour of a finding of unfairness which are:

a.ABC’s failure to confirm the allegations in writing prior to the meeting on 30 July 2025;
b.ABC’s failure to advise Mr Tran prior to the meeting that dismissal was a possible outcome of the meeting;
c.ABC’s decision to nominate a support person for Mr Tran in circumstances where it was aware that Mr Tran was a union member;
d.ABC’s use of a Vietnamese speaking employee during the meeting rather than an accredited interpreter;
e.ABC’s failure to provide the CCTV footage to Mr Tran.

I deal with each of these matters below.

ABC’s failure to confirm the allegations in writing

Mr Leng’s evidence was that following the incident on 29 July 2024 he asked for Mr Tran’s version of events. He then advised Mr Tran that Mr Khoshaba and Mr Leng would be discussing the incident with him the following night, that it was a serious matter and that Mr Tran should bring a support person. At no time prior to the meeting was Mr Tran informed that the discussion would be a disciplinary meeting and that termination of Mr Tran’s employment at the conclusion of the meeting was a possible outcome.

Mr Tran was not informed prior to the meeting of Mr Khantey’s and Mr Hing’s respective versions of events, so he was not aware of the allegations that had been made against him. At the time that Mr Leng spoke to Mr Tran, he was aware that Mr Hing and Mr Khantey were claiming that Mr Tran punched Mr Tran however Mr Tran was not informed that this is what was alleged against him. Further, Mr Tran was not advised of the allegations in writing, which I believe is unusual, particularly as ABC is a large and well-established organisation, and as such would be expected to have best practice human resources policies in place. This was particularly important given Mr Leng’s observations that Mr Tran did not appear to be taking the matter seriously and ABC’s awareness of characteristics of Mr Tran which had the potential to disadvantage him in a disciplinary process including language and health issues including deafness. If the allegations had been confirmed in writing by ABC, Mr Tran could have prepared for the meeting, including getting advice if necessary and organising a support person of his choosing.

ABC’s failure to advise Mr Tran prior to the meeting that dismissal was a possible outcome

ABC should have also advised Mr Tran in writing that there was a possibility that he would be dismissed at the meeting. Mr Tran was a long serving employee. Mr Tran worked for 17 years and until May 2024 had received two warning letters (in relation to performance rather than conduct issues) and one verbal warning. Although Mr Tran did not have an unblemished disciplinary record prior to May 2024, his performance and conduct over a 17 year period appeared to be generally satisfactory. However, in the weeks leading up to the dismissal, there was an escalation in performance and conduct issues resulting in ABC issuing three warnings to Mr Tran in June 2024, which could have been an indication that there were underlying personal, or health issues causing these behaviours. While ABC did not necessarily have a duty to inquire whether this was the cause, Mr Tran should have been given a proper opportunity to seek advice about the allegations and identify potential mitigating factors to give him the best possible chance of providing all relevant information to ABC before it made a final decision in relation to Mr Tran’s employment.

ABC’s decision to nominate a support person for Mr Tran in circumstances where it was aware that Mr Tran was a union member

Mr Khoshaba’s evidence was that at the commencement of the meeting, he asked Mr Hua to explain to Mr Tran in Vietnamese that this was serious matter and if Mr Tran did not understand him or wanted another person, Mr Tran could get someone else to represent him, like the union, a friend or family member. At this stage, Mr Tran was not aware that the meeting could result in his dismissal, so it is hardly surprising that Mr Tran indicated that he was prepared to continue the meeting with Mr Hua as an interpreter and support person. There is nothing in the evidence which indicates that Mr Hua had any knowledge about disciplinary matters and could have provided Mr Tran with advice and assistance about these matters. Mr Tran’s final payslip indicates that ABC was deducting union membership fees from Mr Tran’s pay which suggests that he was a member of the union. Given that ABC took it upon itself to organise a support person for Mr Tran, it is unclear to me why ABC did not contact Mr Tran’s union who would have had the expertise to provide advice and assistance to Mr Tran. Had ABC done so, many of the concerns that I have raised about the disciplinary procedure may have been identified by the union before the meeting and addressed by ABC resulting in a fairer process.

ABC’s failure to use an accredited interpreter

In my view, ABC’s use of a Vietnamese speaking colleague as an interpreter who is not accredited was problematic. I am also concerned that Mr Khoshaba appears to have invited Mr Hua to be present during his discussion with Mr Leng about whether to terminate Mr Tran’s employment.

Mr Khoshaba said that while he was aware that Mr Tran’s first language was Vietnamese, he never had any trouble communicating with Mr Tran in English. Mr Khoshaba said that in his role, Mr Tran was required to communicate with other employees of ABC in English and provided the Commission with a copy of Mr Tran’s statement of attainment from Navitas English which reflects some of his core English skills. Nevertheless, communication about everyday work matters is likely to require a lower level of English proficiency than responding to serious allegations and submitting to an employer that it should not proceed with a dismissal.

It was clear from the hearing that Mr Hua is highly proficient in English however this does not necessarily mean that he had the skills to interpret accurately which was essential given the importance of the meeting to Mr Tran’s ongoing employment. ABC said that it did not have an obligation to use an accredited interpret however I disagree with this. The fact that there is a national accreditation body for interpreters and translators is demonstrative of the fact that interpreters require more than fluency in English and another language to be regarded as capable of providing competent and accurate interpretation services. When the employment of a long-term employee who has limited English language skills is at risk, that employee should not be disadvantaged because of this. In making this observation, I intend no criticism of Mr Hua who is to be commended for his efforts in assisting his employer and Mr Tran at the meeting. Ultimately it appears that Mr Tran was not disadvantaged by Mr Hua providing interpreting services at the meeting as there does not seem to be any disagreement about Mr Hua’s interpretation of Mr Tran’s response to the proposal to dismiss him. There was disagreement between Mr Hua and Mr Tran about whether Mr Tran made a threat in relation to his family at the meeting, however ABC did not rely upon this matter when considering whether to dismiss Mr Tran. In the circumstances, ABC’s use of an employee who was not an accredited interpreter to provide interpretation at the meeting does not weigh in favour of a finding of unfairness, however my findings in this regard may have been different if there was disagreement about Mr Hua’s interpretation of Mr Tran’s response to the proposal to dismiss him.

ABC’s failure to provide the CCTV footage to Mr Tran

Mr Khoshaba viewed the CCTV footage of the incident on 30 July 2024 at around 9.15am with the Group WHS Manager and another safety officer. During the meeting with Mr Tran that evening, Mr Khoshaba advised that he had reviewed the CCTV footage and that it appeared that Mr Tran had punched and assaulted Mr Khantey. Given that ABC relied upon the CCTV footage in determining that Mr Tran had assaulted Mr Khantey, I believe that ABC should have shown the footage to Mr Tran during the meeting. In the statutory declaration attached to the application and his first witness statement, Mr Tran said that if the factory cameras were checked this would show that Mr Tran was trying to tell Mr Khantey to not take his wallet from his pocket and that Mr Tran was not physically violent with Mr Khantey. This suggests that Mr Tran did not believe that ABC had CCTV footage which established that he assaulted Mr Khantey. I note that ABC declined to provide the footage to the Commission during the extension of time hearing and that in his decision extending time for the application to be made, Commissioner Crawford stated:

Given ABC Tissue has not provided any evidence to establish that Mr Tran punched another employee on 29 July 2024, I cannot conclude that Mr Tran’s case has no prospects of success.[110]

The Commissioner also considered that it is unusual and rare for an employee with the personal circumstances of Mr Tran to lose a job they have held for over 17 years on the basis of video footage that they have not seen.[111] I agree with the Commissioner’s observations in this regard.

Mr Tran’s employment history personal circumstances

Mr Tran raised a number of personal circumstances during the meeting on 30 July 2024 which I have taken into account. These circumstances are that he worked for ABC for 17 years, he is 58 years of age, he has young children and that it will be difficult for him to find another job, especially as he has hearing aids. The extension of time decision referred to evidence that Mr Tran suffered from a range of medical issues including depression.[112] I also note that Mr Tran offered to apologise to Mr Khantey and that he accepted that he has made mistakes over the years and asked for one more chance. These are matters which weigh in favour of a finding that the dismissal was unfair.

I note that Mr Tran has received a number of warnings throughout his employment. As most of these warnings deal with relatively minor issues, I regard these matters as a neutral consideration.

Is the Commission satisfied that the dismissal of Tran was harsh, unjust or unreasonable?

I have made findings in relation to each matter specified in s.387 as relevant.

I must consider and give due weight to each of these matters as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[113]

I have found that Mr Tran hit Mr Khantey with an open hand on 29 July 2024 and that this was a valid reason for the dismissal related to Mr Tran’s capacity or conduct. This is a matter which weighs in favour of a finding that the dismissal was not unfair. The matters in s.387(b)-(d) do not weigh in favour of a finding of unfairness. The matter in s.387(f) weighs in favour of a finding that the dismissal was unfair. The matters in s.387(e)-(g) do not apply to this matter.

I have also found that there were a number of serious procedural deficiencies in the conduct of the disciplinary procedure and the execution of the dismissal. Most of these matters weigh in favour of a finding that the dismissal was unfair. However, ultimately I do not think that the absence of these procedural deficiencies would have produced a different outcome. In the written statement which Mr Tran provided to ABC on 30 July 2024, Mr Tran said that he pushed Mr Khantey after Mr Khantey put his hand in Mr Tran’s pocket and Mr Tran expressed concern about Mr Khantey complaining about the fridge kicking incident. Mr Tran raised a number of mitigating factors and after considering these matters, ABC decided to dismiss him.

During the hearing, Mr Tran provided more detailed evidence about the events of 29 July 2024 including that he believed that Mr Khantey was trying to steal his wallet and that he was acting in self-defence. There was simply no evidence to support these assertions, and they appeared to be made for the sole purpose of absolving Mr Tran with respect to his conduct towards Mr Khantey on 29 July 2024 by portraying Mr Khantey as the aggressor.

Mr Tran also made a number of allegations about Mr Khoshaba’s conduct during the meeting on 29 July 2024 which were not corroborated by any other evidence including that as Mr Tran was leaving, Mr Khoshaba verbally assaulted and laughed at Mr Tran saying that he was crazy, sick in the head, needed to go to hospital to get treated and that Mr Tran would not be able to get a job as he does not know any English. During the hearing Mr Tran also made the extraordinary claim that Mr Khoshaba tore Mr Tran’s statement in half at the meeting of 30 July 2024 which appears to be impossible given that Mr Khoshaba attached this statement to his own witness statement dated 30 January 2025.

Finally, Mr Tran advanced numerous theories for the dismissal. He said that he strongly believed that the sudden termination was not about the incident on 30 July 2924 but rather because he had previously pursued an unsuccessful worker’s compensation claim against ABC for his deafness and that management disliked him. He said the claims made against him are part of a pattern of mistreatment that began when Mr Leng returned to ABC. Mr Tran said that Mr Leng had shown clear animosity towards him and had issued numerous warnings against him because of his independent nature and his medical issues, which limited his ability to lift heavy items or wear safety shoes. Mr Tran said that he believed the management at ABC had personal reasons for wanting to terminate him, and used the incident with Mr Khantey as an excuse. Mr Tran also believed that the witnesses ABC provided in relation to the incident are not independent, as they are still under the influence of management.

Mr Tran’s actions in hitting Mr Khantey on 29 July 2024 were objectively serious, which Mr Tran acknowledged in offering to apologise to Mr Khantey on 30 July 2024 and asking for one last chance. However, I have difficulty accepting that Mr Tran’s remorse was genuine and that Mr Tran accepted responsibility for his actions having regard to Mr Tran’s attempt to shift blame to Mr Khantey for the assault during the hearing and make false allegations against Mr Khoshaba. I am also concerned about Mr Tran’s suggestion that ABC was using the incident on 29 July 2024 as an ‘excuse’ to terminate him. This suggestion ignores the fact that it was Mr Tran who initiated the conversation with Mr Khantey and approached him in his work area in circumstances where Mr Tran felt significant animosity towards Mr Khantey. It is hard to resist the conclusion that in doing so Mr Tran was trying to provoke some form of conflict with Mr Khantey, however as this matter was not put to Mr Tran during the hearing, I make no findings in this regard. In any event, this was not a situation where Mr Tran was set up or entrapped by ABC management or Mr Khantey, but one entirely of Mr Tran’s own making brought about by his own conduct and no other person. The suggestion that ABC management was waiting for Mr Tran to assault Mr Khantey so it could implement a pre-existing intention to dismiss Mr Tran is nonsensical and not supported by any of the evidence.

It is important to note that Mr Tran provided his second witness statement and was cross-examined at the hearing after he had an opportunity to see the CCTV footage and review all of the witness statements relied upon by ABC. Further, Mr Tran was represented by a law firm who appeared to have access to Vietnamese speaking lawyers and was assisted during the hearing by an accredited interpreter provided by the Commission. Mr Tran was represented throughout the proceedings and had the opportunity to present any medical or other evidence which explained why he hit Mr Khantey. Consequently, Mr Tran was fully aware of the conduct alleged against him, and able to provide the Commission with a comprehensive response to the allegations, through an accredited interpreter, having regard to all of the material which ABC relied upon in deciding to dismiss him. In my view, if Mr Khoshaba and Mr Leng were aware on 30 July 2025 of all of the matters referred to in Mr Tran’s evidence to the Commission, this would not have led to a different outcome. Mr Tran was not truthful about Mr Khantey and Mr Hing inviting him into their work area. Mr Tran claimed that Mr Khantey was the aggressor and that he was acting in self-defence, but this is not supported by the CCTV footage or any other evidence. Any evidence which Mr Tran provided to the Commission which was not before Mr Khoshaba and Mr Leng on 30 July 2024 did not reduce the seriousness of the incident or raise relevant mitigating factors. As such, I believe that Mr Khoshaba and Mr Leng would have still proceeded with the dismissal if they were aware at the time of the dismissal of all of the matters referred to in Mr Tran’s evidence to the Commission.

If Mr Tran was genuinely remorseful for the assault and was able to point to personal circumstances that explained the assault, this may have resulted in a conclusion that the dismissal was unfair. However, in the absence of material in relation to such matters, I believe that the gravity of the conduct outweighs the procedural deficiencies and harshness arising from Mr Tran’s personal circumstances and have concluded that the dismissal was not unfair.

Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of Mr Tran was not harsh, unjust and unreasonable because:

there was a valid reason for the dismissal related to Mr Tran’s conduct;
Mr Tran’s conduct was serious;
Mr Tran was notified of that valid reason; and
the procedural deficiencies I have identified would not have changed the outcome as ABC would have proceeded with the dismissal if it was aware on 30 July 2025 of all of the matters referred to in Mr Tran’s evidence to the Commission.

I am therefore not satisfied that Mr Tran was unfairly dismissed within the meaning of s.385 of the FW Act.

Conclusion

I have found that there was a valid reason for the dismissal based upon Mr Tran’s conduct in hitting Mr Khantey with an open hand. Although I have found that there were many aspects of the disciplinary procedure that were unfair, I believe that these matters would not have affected the outcome and are outweighed by the gravity of Mr Tran’s conduct. I have taken into account Mr Tran’s employment history and personal circumstances. I have concluded that Mr Tran was not unfairly dismissed, and I have dismissed the application.

DEPUTY PRESIDENT

Appearances:

Mr V. Kitoko, Paid Agent from Greenfield Lawyers, for the Applicant
Ms H. Nguyen, Counsel, for the Respondent
Ms T. Lawrence, instructing solicitor from Australian Business Lawyers & Advisors, for the Respondent

Hearing details:

2025
14 February and 10 March
In person, Sydney

Final written submissions:

8 April 2025, for the Respondent
15 April 2025, for the Applicant

[1] Unfair Dismissal Application Form F3 signed on 27 September 2024, Digital Hearing Book (DHB) 38-39

[2] Unfair Dismissal Application Form F2 signed on 11 September 2024, DHB 10-11

[3] Outline of Submissions for the Respondent, DHB 70-84

[4] Witness Statement of Ninos Khoshaba, DHB, 33

[5] Witness Statement of Jamie Anthony Ngoc dated 6 January 2025 (First Tran Statement) [4]-[6], DHB 66-67

[6] Witness Statement of Jamie Anthony Ngoc dated 11 February 2025 (Second Tran Statement) [4], DHB 227-228

[7] Ibid [5], DHB 228

[8] Ibid [6]-[7], DHB 228

[9] Ibid [8], DHB 228

[10] Ibid [9]-[10], DHB 228-229

[11] Ibid [11], DHB 229

[12] DHB 28

[13] Statement of Sieng Khantey dated 30 January 2025 (Khantey Statement) [1]-[2] DHB 181

[14] Ibid [12], DHB 181

[15] Ibid [13]-[15], DHB 181-182

[16] Ibid [16]-[24], DHB 182

[17] Ibid [26]-[30], DHB 182

[18] DHB 186-187

[19] Statement of Sreang Hing dated 30 January 2025 (Hing Statement) [1]-[3], DHB 188

[20] Ibid [4]-[5], DHB 188

[21] Ibid [6]-[9], DHB 188

[22] Ibid [10]-[14], DHB 188

[23] Ibid [15], DHB 188

[24] Ibid [16], DHB 189

[25] Ibid [17]-[19], DHB 189

[26] DHB 190-191

[27] Khantey Statement [4]-[5], DHB 181

[28] Ibid [7]-[10], DHB 181

[29] Statement of Anthony Ly Leng dated 1 February 2025 [6]-[10], DHB 204

[30] Ibid [11]-[13], DHB 205

[31] Ibid [14], DHB 205

[32] DHB 184-185

[33] Tran Second Statement [18], DHB 230

[34] Statement of Anthony Ly Leng dated 1 February 2025 [1]-[2], DHB 204

[35] Ibid [4], DHB 204

[36] Ibid [15]-[17], DHB 205

[37] Ibid [18]-[21], DHB 205

[38] Ibid [22]-[25], DHB 205

[39] Ibid [26]-[27], DHB 205

[40] Ibid [28]-[29], DHB 205

[41] Ibid [30]-[32], DHB 205

[42] Ibid [33]-[34], DHB 205

[43] Statement of Quang Sanh Nim dated 30 January 2025 [10]-[12], DHB 179

[44] Ibid [13], DHB 179

[45] Statement of Ninos Khoshaba dated 3 February 2025 (Khoshaba Statement) [1]-[3], DHB 86

[46] Ibid [4]-[6], DHB 86

[47] Ibid [20]-[21], DHB 87

[48] Ibid [27]-[29], DHB 88

[49] Statement of Anthony Ly Leng dated 1 February 2025 [40]-[42], DHB 207

[50] Ibid [43], DHB 207

[51] Khoshaba Statement [33]-[37], DHB 88-89

[52] Ibid [38]-[39], DHB 89

[53] Ibid [40]-[41], DHB 89

[54] Ibid [42], DHB 89

[55] Ibid [43], DHB 89

[56] Ibid [44]-[48], DHB 89

[57] Ibid [49], DHB 89

[58] Ibid [50]-[51], DHB 90

[59] Ibid [52], DHB 90

[60] Ibid [53]-[55], DHB 90

[61] Ibid [56], DHB 90

[62] Ibid [57]-[59], DHB 90

[63] Ibid [60]-[61], DHB 90

[64] Ibid [63], DHB 90-91

[65] Ibid [64]-[66], DHB 91

[66] Ibid [67], DHB 91

[67] Ibid [68], DHB 91

[68] Ibid [69], DHB 91

[69] DHB 157-165

[70] Ibid [70], DHB 91

[71] Ibid [71]-[72], DHB 91

[72] Ibid [73], DHB 91-92

[73] Ibid [75]-[77], DHB 92

[74] Ibid [78]-[80], DHB 92

[75] Ibid [81]-[82], DHB 92

[76] Ibid [85], DHB 92

[77] Ibid [86], DHB 93

[78] Footnote

[79] Tran First Statement [11], DHB 67

[80] Khoshaba Statement [47] DHB 89

[81] Tran Second Statement [12], DHB 229

[82] Ibid [13], DHB 229

[83] Tran First Statement [12], DHB 68

[84] Khoshaba Statement [81] DHB 92

[85] Tran First Statement [13], DHB 68

[86] Khoshaba Statement [85], DHB 92

[87] Tran First Statement [14], DHB 68

[88] Ibid [15], DHB 68

[89] Ibid [16], DHB 68-69

[90] Khoshaba Statement [16]-[17] DHB 87

[91] Ibid [18]-[19] DHB 87

[92] Tran Second Statement [17], DHB 230

[93] Ibid [18]-[19], DHB 230

[94] Tran First Statement [10], DHB 67

[95] Khoshaba Statement [36] DHB 89

[96] [2024] FWC 3070

[97] 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]

[98] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373

[99] Ibid

[100] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685

[101] Edwards v Justice Giudice [1999] FCA 1836, [7]

[102] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24]

[103] DHB 213-217

[104] Statement of Anthony Ly Leng dated 30 January 2025, DHB 192

[105] [2023] FWCFB 165

[106] Ibid, [28]

[107] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55]

[108] Ricegrowers Co-operative v Schliebs PR908351 (AIRCFB, Duncan SDP, Cartwright SDP, Larkin C, 31 August 2001), [26]

[109] Telstra Corporation v Streeter [2008] AIRCFB 15, [27]

[110] [2024] FWC 3070, [28]

[111] Ibid, [35]

[112] Ibid, [4]

[113] 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]

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