Mitchell Fuller v Madison Branson Lawyers Pty Ltd - [2025] FWC 784

[2025] FWC 784

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mitchell Fuller
v

Madison Branson Lawyers Pty Ltd

(U2024/10086)

DEPUTY PRESIDENT BELL

MELBOURNE, 7 APRIL 2025

Application for an unfair dismissal remedy – summary dismissal due to serious misconduct - whether Small Business Fair Dismissal Code applies – Code applies – dismissal consistent with Code – dismissal not unfair – application dismissed.

Mr Mitchell Fuller was employed as a practising solicitor with the respondent law firm, Madison Branson Lawyers, until he was summarily dismissed on 4 August 2024. He was dismissed from his employment primarily because, on the respondent’s case, Mr Fuller had lied about being sick, or at least his whereabouts, on Friday 5 April 2024 and 8 April 2024.

On those two days, Mr Fuller was otherwise expected to be at work in Melbourne. He was not at work on either day, having caught a plane to Adelaide on the evening of Thursday, 4 April 2024 after finishing work. In Adelaide, Mr Fuller met with friends who were also from Melbourne. Over the next few days, Mr Fuller and his friends watched Australian Football League ‘Gather Round’ games, among other social activities which included time at the pub and the beach. He shared a car trip home with his friends on Monday, 8 April 2024. None of these matters were known to the employer at the time but came to light about three months later. What Mr Fuller instead told his employer at the time was, for the Friday, he “had a tough time sleeping last night and am not feeling up to coming into the office” and, for the Monday, he was “still in a bit of discomfort today and don’t think I can hack taking public transport.” Both statements were knowingly evasive of the true situation and were all the more serious given that Mr Fuller wrongly claimed sick leave entitlements. Mr Fuller did not provide a medical certificate for the Friday but later made a statutory declaration asserting he was sick and was unable to speak to his regular doctor that day. For the Monday, Mr Fuller obtained a medical certificate from an online provider of medical certificates.

As the employer has fewer than fifteen employees, it is a “small business employer” for the purposes of s 388(2) of the Fair Work Act 2009 (Cth) (Act). Because the respondent is a small business employer, it is sufficient for it to demonstrate that the dismissal was consistent with the Small Business Fair Dismissal Code (Code) as an answer to Mr Fuller’s unfair dismissal claim. Relevantly, a dismissal is consistent with the Code if the employer “believes on reasonable grounds” that the employee’s conduct was “sufficiently serious to justify immediate dismissal”. For the reasons explained below, I am readily satisfied that the dismissal was consistent with the Code. Even if the Code ‘defence’ was not available or made out, I do not find the dismissal was unfair.

Factual findings

Madison Branson Lawyers is a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 784
Decision Date: 7 APRIL 2025

CaseChat Overview and Summary

Mitchell Fuller brought an application against Madison Branson Lawyers Pty Ltd for an unfair dismissal remedy. Fuller had been employed by Madison Branson Lawyers, but his employment was terminated due to what the employer described as serious misconduct. Fuller contended that the dismissal was unfair and sought relief under the Fair Work Act 2009. The matter was heard by the Fair Work Commission, which had to determine whether the Small Business Fair Dismissal Code applied and if the dismissal was consistent with the Code.

The central legal issue before the Commission was whether the dismissal was consistent with the requirements of the Small Business Fair Dismissal Code. The Commission considered whether the employer had followed the correct procedural steps and if the dismissal was proportionate to the misconduct alleged. Additionally, it was necessary to ascertain if the employer had a valid reason to believe that Fuller engaged in serious misconduct justifying the summary dismissal.

The Fair Work Commission found that the Small Business Fair Dismissal Code applied to the circumstances of the case. The employer had followed the appropriate procedural steps in terminating Fuller's employment, including providing him with an opportunity to respond to the allegations of misconduct. The Commission concluded that the employer had a reasonable belief that Fuller's actions constituted serious misconduct warranting immediate dismissal. As a result, the dismissal was deemed consistent with the Code, and Fuller's application for an unfair dismissal remedy was dismissed. The Fair Work Commission determined that the dismissal was fair and that no unfair dismissal remedy was warranted.

Orders