Monica Budzinauskas v Compass Group Defence Hospitality Services Pty Ltd
[2025] FWC 2495
•25 AUGUST 2025
| [2025] FWC 2495 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Monica Budzinauskas
v
Compass Group Defence Hospitality Services Pty Ltd
(U2025/1022)
| COMMISSIONER SLOAN | SYDNEY, 25 AUGUST 2025 |
Application for an unfair dismissal remedy –whether dismissal harsh, unjust or unreasonable – no valid reason for dismissal – reinstatement not appropriate – compensation ordered
Monica Budzinauskas is a chef. From 2014 she was employed by Compass Group Defence Hospitality Services Pty Ltd, at the HMAS Cresswell site at Jervis Bay in the New South Wales.
On 23 January 2025, Compass dismissed Ms Budzinauskas. It alleged that she had engaged in misconduct by harassing other Compass employees.
Ms Budzinauskas denies the allegations. On 30 January 2025 she filed an unfair dismissal application under section 394 of the Fair Work Act 2009.[1]
Determination
I have found that there was no valid reason for Ms Budzinauskas’s dismissal. I have determined that the dismissal was harsh, unjust and unreasonable. I have decided that an order for payment of compensation is appropriate. These are my reasons.
Observations on the evidence
Ms Budzinauskas’s evidence and submissions traversed what she described as a history of bullying and other harmful behaviour at Compass since November 2022.[2] In broad terms, she stated that began to be treated differently after she made a workers compensation claim in November 2022. This developed into a pattern of bullying and harassment which continued until, and indeed included, her dismissal. Ms Budzinauskas’s evidence included a large number of documents which she relied on to demonstrate the behaviour she said she experienced, and the impacts on her health and wellbeing that she said resulted from it.
In addition to her own statements and submissions, Ms Budzinauskas relied on statements from two former colleagues at Compass[3] who described their experiences at Compass, their (quite critical) views as to the workplace culture and environment, and their observations as to how they considered Compass treated Ms Budzinauskas. Ms Budzinauskas’s partner also provided a statement,[4] in which he described what he considered to be the impacts on her of the alleged workplace bullying.
In many respects, Ms Budzinauskas’s case presented as one in which she was seeking that the Commission make a stop bullying order. On first reading, it was difficult to discern the arguments she was advancing as to why her dismissal was unfair. That is not to suggest criticism of Ms Budzinauskas. She was self-represented and clearly unfamiliar with the Commission’s processes. It is simply that it has been necessary to sift through the significant amount of material filed to glean the reasons why she contends that her dismissal was unfair.
In that context, Compass submitted that much of Ms Budzinauskas’s material was not relevant for the purposes of these proceedings and should be afforded little, if any, weight. To a significant extent, I agree. I have considered all of Ms Budzinauskas’s material, but I will only traverse it to the extent that it is relevant to the matters I am required to determine.
For completeness, the evidence on which Compass relied was contained in statements of Bob Pritchard, who is employed by Compass as the Manager – Site Operations at HMAS Creswell, and John Metcalf, Compass’s Regional Manager Northern New South Wales.
Relevant factual context
Ms Budzinauskas commenced employment with Compass on 1 November 2014. There is no evidence that before 2024 Compass had any concerns with her conduct or performance.
On 28 March 2024, Compass issued Ms Budzinauskas with a “First & Final Written Warning” (“Warning”).[5] The Warning resulted from an allegation that in January 2024 Ms Budzinauskas had referred to the Chef Supervisor and another colleague in offensive terms and said that she was going to take the Chef Supervisor to Human Resources and “take them down”.[6] Ms Budzinauskas denied those allegations. She refused to sign the Warning. Even so, she was provided with a copy of Compass’s Behaviour Standards and Respectful Behaviours policy and required to undertake additional training regarding workplace conduct.
In the meantime, Ms Budzinauskas had commenced proceedings in the Commission for a stop bullying order in respect of the disciplinary process that resulted from the January 2024 allegations (“First Bullying Application”). At a conference convened by Commissioner McKenna in that matter on 11 April 2024, Compass agreed to “sunset” the Warning.[7]
On 11 September 2024, Mr Pritchard was told that on 4 and 5 September 2024, Ms Budzinauskas had engaged in inappropriate conduct. Mr Pritchard described the alleged conduct in these terms:[8]
“18. To the best of my knowledge, the events that occurred on 4 September 2024 were as follows:
a. Conduct occurred on or around 10.00am.
b. Lunch preparation for the day was occurring at the time of the event.
c. Christine Kaldermis was preparing the sandwich bar area and had left the area for a brief moment.
d. Monica, noticing a mess at the sandwich bar area, began yelling at Christine regarding the alleged mess she had made.
e. Monica was standing approximately 10-15 meters away from Christine at the time of the event.
f. The reports from the witnesses recount the rude and confronting manner in which Monica had communicated/yelled at Christine.
g. I am aware Christine recounts the yelling and behaviour was embarrassing and hurtful, prompting other employees to go and comfort her after Monica had left the sandwich bar area due to her being visibly upset and shaken. Christine informed me of this during the investigation.
19. To the best of my knowledge, the events that occurred on 5 September 2024 were as follows:
a. Event occurred on or around 9.30am.
b. Lunch preparation for the day was occurring at the time of the event.
c. Brett Critcher had been preparing lunch as per the day’s lunch menu instructions.
d. Monica had approached Brett in relation to the way he was preparing lunch, holding a different days lunch menu instructions.
e. Monica yelled at Brett in front of others in a demeaning way telling him he was ‘wrong, all wrong’.
f. Brett informed Monica that no, it was in fact the menu preparation for the day and she was reading he wrong menu instructions.
g. Monica became increasingly aggressive, shouting ‘you are wrong, you are wrong’ in front of other colleagues.
h. This caused Brett to feel embarrassed, harassed, and belittled. I am aware of this as he informed me during the investigation.
i. Brett informed his supervisor that he was leaving for the day and cannot work with Monica moving forward due to her aggressiveness and how embarrassed she made him feel. I know this because both the supervisor and Brett told me during the investigation.”
Ms Budzinauskas was subsequently provided with a letter from Mr Pritchard dated 14 October 2024. The letter informed Ms Budzinauskas that she was required to attend a “disciplinary response meeting” on 17 October 2024 in respect of the following allegations:[9]
“Allegation 1
On 07 September you were directed to complete the preparation for the next day Lunch/Dinner service. You allegedly did not complete any part of this task, and you did not advise your supervisor that you were unable to complete the tasks assigned.
Allegation 2
On 09, 24 and 26 Sept 2024 it is alleged you took breaks outside of your rostered break times and did not discuss this with your supervisor. …
Allegation 3
On 04 September 2024, you allegedly aggressively addressed a team member over the cleanliness of the sandwich/salad bar area.
The team member felt that the manner in which you addressed them was loud and aggressive causing the team member to feel intimidated and embarrassed.
Allegation 4
On 05 September, you allegedly approached a chef in relation to lunch preparation in an aggressive manner. You questioned the staff member over incorrect preparation stating that ‘it was not on the menu’ and raising your voice stating it was ‘wrong’. The staff member felt uncomfortable and intimidated with the continued questioning and felt the comments made were inappropriate. This caused the staff member to request to go home after the incident.”
On 17 October 2024, Mr Pritchard called Ms Budzinauskas into the “disciplinary response meeting”. However, the meeting did not proceed as Ms Budzinauskas’s support person could not be present.[10]
The meeting was postponed until 24 October 2024. Mr Pritchard sent Ms Budzinauskas a letter on 17 October 2024 directing her to attend that meeting. The letter was relevantly in the same terms as that of 14 October 2024, and contained the same four allegations.
In the meantime, Ms Budzinauskas was stood down on full pay. Mr Pritchard said that this was in part due to his concern for her wellbeing as a result of the “heightened emotions” Ms Budzinauskas displayed on 17 October 2024.[11]
At or about this time, Ms Budzinauskas sent an email to Mr Pritchard, copied to Maria Grana (a member of Compass’s Human Resources team). The copy of the email in evidence is not dated.[12] In that email, Ms Budzinauskas referred to having “received a written notice on the 14th of October”. She denied the allegations against her. In particular in relation to Allegations 3 and 4, she stated:
“Allegation 3) Once again did not happen this way, it was again Jack and me for 3 kitchens no staff, as we were setting up for dinner service as the FOH staff was cleaning the coffee area from lunch time their starting time 1530, I clearing noted again the service areas were not hygienically and under the food standards CLEAN, I stated to Jack being my supervisor that I have to clean the surface area down before we put food there as not only not cleaned it was a food contamination risk. Jack response was ‘Yeah I know Mon never is.’ This is when the FOH staff member approached to clean it and I stated, it’s all good I will as they were not here at the lunch period and should not have to backtrack to clean areas that were not done after each service. I did not do this aggressively I was laughing at the fact we are always cleaning equipment before a next service, creating more workload.
Allegation 4) On arriving on shift, it was a theme menu of chicken parmas. Jack was on ovens and reliesed all wheat products and ask me to go get 2 chicken breast fresh in meat coolroom, so I did. This alleged incident states lunch prep and incorrect prep for it not to be right for the menu. It was all about the 5kg chicken bag,s total weight 50kg, OOD by 6th sept, tubbed up with other red meats all the way to wed 11TH. Cross contamination, out of date by the 6th the whole 50kgs. I went straight to my catering manager to say did he do the meat, he said no brett did, said I will have to freeze it, can not be out of date. High risk Poultry. Andrew agreed. I approached brett where he ignored me 3 times and then grunted. I also went to my catering manager about the un professional of his behaviour for the 7 Mths, also does this to others. I stated im not talking to you like that as he yelled out ‘WHAT’. He was the one being aggressive. Sarah was on the bench and I stated at are you going to do anything about him. No response. …I left the kitchen at 11.50 with a panick attack, I was triggered from bretts treatment of me since march of returning back. I RETURNED WITHIN THE 15MINS. Brett had gone home so again it was Jack and me for 3 kitchens. Jack wasnt happy about him going home either, and praised me for returning back. …I am here again before you to defend these false allegations.”
(Reproduced verbatim. However, for ease of comprehension I have separated the response to each allegation into separate paragraphs.)
Ms Budzinauskas made a further application to the Commission for a stop bullying order (“Second Bullying Application”). That application named Mr Pritchard as a person responsible for the alleged bullying. Compass postponed the proposed meeting on 24 October 2024 pending a conference in those proceedings.
Deputy President Cross convened a conference in the Second Bullying Application on 11 November 2024. The outcomes of the conference were that:
Compass would recommence its investigation into the allegations regarding Ms Budzinauskas’s conduct in September 2024; and
Ms Budzinauskas would submit a complaint to Compass regarding Mr Pritchard’s alleged bullying to allow the company to conduct an internal investigation.
Following that conference, Mr Metcalf removed Mr Pritchard from having any involvement in the disciplinary process involving Ms Budzinauskas.
By letter dated 13 November 2024, Mr Metcalf directed Ms Budzinauskas to attend a “response meeting” on 21 November 2024. That letter was relevantly in the same terms as those of 14 and 17 October 2024 that Mr Pritchard had sent to Ms Budzinauskas, and contained the same four allegations.
At the meeting on 21 November 2024, Ms Budzinauskas denied the allegations against her. Despite that, Mr Metcalf “ultimately concluded that the allegations against Monica were substantiated”.[13]
On 4 December 2024, Ms Grana sent Ms Budzinauskas an email which referred to an attached letter “requesting your attendance to a show cause meeting to be held on Monday, 9 December at 11.00 a.m.”.[14] The letter referred to in the email is not in evidence.
In an email to Ms Grana sent on 9 December 2024, Ms Budzinauskas stated, amongst other things, that she was “awaiting further external advice” and would not be attending the meeting scheduled for that day.[15] The following day, Ms Budzinauskas obtained a medical certificate that described her as suffering from “stress and anxiety” and which stated that she was not fit for work from 9 to 11 December 2024.[16] There is no evidence that this was provided to Compass.
However, on 10 December 2024, Ms Grana sent an email to Ms Budzinauskas which started: “I understand that you are currently unwell”. The email went on to advise Ms Budzinauskas that the show cause meeting had been rescheduled to 16 January 2024.[17]
Attached to Ms Grana’s email was a letter to Ms Budzinauskas of the same date titled “Requirement to Show Cause”. The letter stated in part:[18]
“I refer to the response meeting you attended on 21 November 2024 where you were asked to respond to a serious allegation relating to breaches of our Behaviour Standards and Respectful Behaviour Policy.
The Company has considered the facts of the issue at hand as well as the responses that you provided in the meeting of 21 November 2024. The Company has considered the available information and has substantiated these breaches, with the exception of the allegation of taking breaks outside of rostered times; the Company has retracted this allegation.
As a consequence of the Company substantiating these policy breaches, you are directed to attend a Show Cause Meeting on Thursday, 16 January 2024 at 11.00 a.m. The Show Cause Meeting will be attended by myself and John Metcalf, Regional Manager – NNSW.
At this meeting, you will have an opportunity to provide a response and state your reasons as to why the Company should not terminate your employment due to these breaches.
You are invited to bring a support person of your choice to the meeting. …” (Emphasis in original)
On 14 January 2025, Ms Grana sent a letter to Ms Budzinauskas, which stated in part:[19]
“We refer to our letter dated 10 December 2024 directing you to attend a rescheduled Show Cause meeting on Thursday, 16 January 2025 at 11.00 am and your subsequent email dated 10 January 2025 advising that you were unable to attend.
In light of the concerns raised in your email regarding your attendance at an in-person Show Cause Meeting and the unavailability of your Counsellor until 20 January 2025 the Company has decided to instead request that you provide a written response to the prospect that your employment is at risk of termination by close of business, Friday, 17 January 2025.
Further, given the matters raised in your email and the Company’s concerns for your health, safety and well-being, the Company will stand you down with pay from Wednesday, 15 January 2025. You are directed not to attend the workplace during this period of stand down.” (Emphasis in original)
On 17 January 2025, Ms Budzinauskas sent an email to Ms Grana. It was a lengthy email. For present purposes, it suffices to note that Ms Budzinauskas referred to having “already provided the truth in all 4 allegations in a written response, emailed” and to “the written response already given by email on the 24th of October 2024”.[20] There is no email in evidence bearing a date of 24 October 2024.[21]
Compass determined to terminate Ms Budzinauskas’s employment. In a meeting on 23 January 2025, Mr Metcalf told Ms Budzinauskas that her employment was being terminated with effect that day. This was confirmed in a letter from Mr Metcalf to Ms Budzinauskas dated that day, which stated in part:[22]
“This letter is to confirm our decision that your employment with Compass Group (the Company) is terminated effective today, Thursday 23 January 2025, due to engaging in conduct in breach of your employment contract, Compass Group’s Respectful Behaviours Policy, Behavioural Standards Policy and Code of Conduct.
The Company received allegations that you had engaged in conduct that constitutes as harassment toward employees of Compass Group. A response meeting was conducted with you on 14 November 2024 where you were provided the particulars of the allegations and were provided with an opportunity to respond to these allegations.
The Company has considered the evidence gathered, and your responses given during the course of the investigation and has found the allegations to be substantiated; therefore, the Company has determined that your behaviour amounts to misconduct.”
Ms Budzinauskas received a payment of six weeks pay in lieu of notice.
Why I have found the dismissal to be unfair
Before considering the merits of Ms Budzinauskas’s application, I am required to decide four matters:[23]
whether Ms Budzinauskas’s unfair dismissal application was made within the statutory time period;[24]
whether Ms Budzinauskas was a person protected from unfair dismissal;[25]
whether the dismissal was consistent with the Small Business Fair Dismissal Code; and
whether the dismissal was a case of genuine redundancy.[26]
There was no controversy about any of these matters. I find that: Ms Budzinauskas filed her unfair dismissal within the statutory time period;[27] Ms Budzinauskas was a person protected from unfair dismissal; Compass is not a small business employer[28] and so the Small Business Fair Dismissal Code is not applicable; and, the dismissal was not a case of genuine redundancy.
Turning to the merits of the application, a person will have been unfairly dismissed if the Commission is satisfied of four things:[29]
the person has been dismissed;
the dismissal was harsh, unjust or unreasonable;
the dismissal was not consistent with the Small Business Fair Dismissal Code; and
the dismissal was not a case of genuine redundancy.
Given my earlier findings, the only matter left to be determined is whether Ms Budzinauskas’s dismissal was harsh, unjust or unreasonable.
In determining that question, I am required to have regard to certain criteria, namely:[30]
whether there was a valid reason for the dismissal related to Ms Budzinauskas’s capacity or conduct (including its effect on the safety and welfare of other employees);
whether Ms Budzinauskas was notified of that reason. The reference to “that reason” is to the “valid reason” to which the first criterion refers;[31]
whether Ms Budzinauskas was given an opportunity to respond to any reason related to her capacity or conduct;
any unreasonable refusal by Compass to allow Ms Budzinauskas to have a support person present to assist at any discussions relating to dismissal;
if the dismissal related to unsatisfactory performance by Ms Budzinauskas – whether she had been warned about that unsatisfactory performance before the dismissal;
the degree to which the size of the Compass’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;
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
any other matters that the Commission considers relevant
I am required to consider those criteria to the extent to which they are relevant to the case before me.[32] As the dismissal did not relate to Ms Budzinauskas’s unsatisfactory performance, the fifth criterion is not relevant. I will address the others in turn.
Whether there was a valid reason for the dismissal
In order to be a valid reason, the reason for the dismissal should be sound, defensible or well founded. It should not be capricious, fanciful, spiteful or prejudiced.[33] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it were the employer.[34]
What was the reason for dismissal?
The starting point is to clarify the reason for dismissal in this case. The letters that Compass sent to Ms Budzinauskas on 14 October 2024, 17 October 2024 and 13 November 2024 identified four allegations against her. (I will refer to the allegations in the same way as they are referred to in those letters.)
As noted above, Mr Metcalf stated that after attending the “disciplinary response meeting” with Ms Budzinauskas on 21 December 2024, he concluded that “the allegations…were substantiated”. This suggests that he found all four allegations to be substantiated.
However, in her “show cause” letter of 10 December 2024, Ms Grana informed Ms Budzinauskas that the “allegation of taking breaks outside of rostered times” – which must be a reference to Allegation 2 – was “retracted”. This would suggest that Allegations 1, 3 and 4 had been substantiated.
The letter of termination of 23 January 2025 did not expressly identify which of the allegations Compass was relying on. But the reference to “conduct that constitutes as harassment” can only be a reference to Allegations 3 and 4; nothing in Allegation 1 suggests harassment. Certainly, Compass led no evidence regarding Allegation 1. Further, in his evidence, Mr Pritchard stated that Allegations 1 and 2 “are not relevant to [Ms Budzinauskas’s] dismissal”.[35] There is nothing in the letter of termination to suggest that Compass’s decision to dismiss Ms Budzinauskas was based on any other consideration.
On the evidence, I find that the reason for dismissal was its finding that Ms Budzinauskas had engaged in the conduct alleged in Allegations 3 and 4.
Did Ms Budzinauskas engage in that conduct?
The premise of Allegation 3 is that on 4 September 2024, Ms Budzinauskas shouted at Christine Kaldermis for leaving a mess at the sandwich bar area, causing Ms Kaldermis to feel embarrassed and hurt. The premise of Allegation 4 is that on 5 September 2024, Ms Budzinauskas shouted at, and became increasingly aggressive towards, Brett Critcher in relation to the way he was preparing lunch, causing Mr Critcher to feel embarrassed, harassed and belittled.
Ms Budzinauskas repeatedly denied that she engaged in the conduct described in Allegations 3 and 4. She did so in her written communications to Compass during the disciplinary process, at the “response meeting” on 21 November 2024 and in her written evidence in these proceedings. Significantly, she provided Compass with an alternative narrative of the events of those days, which again forms part of the evidence before me.[36]
Ms Budzinauskas was cross-examined in relation to the events of 4 and 5 September 2024. It was put to her that she “acted aggressively” towards Ms Kaldermis[37] and that she had approached Mr Critcher “in an aggressive manner”.[38] She denied those suggestions. Significantly in my view, she was not directly challenged on the alternative narrative that she had provided to Compass. Her answers under cross-examination were consistent with that narrative.
In this regard, Ms Budzinauskas was taken in cross-examination to a description of the events of 5 September 2024 that she had included in her material in these proceedings. For context, that description included the following:[39]
“5 September 2024, 1000 to 2000 shift. Arrived on shift for theme day lunch service. Started the tasks on the daily prep sheet, when Jack who was on the ovens for lunch (kitchens), asked me to get some plain chicken breast from the meat coolroom. So I did and noticed the chicken bags (5kgs) were all inside the red tubs with all the 5kgs red meat bags (cross contamination issue). …I went straight to my catering manager to inform again about the chicken bags… I said I have to freeze it then and does he know who did it. He replied Brett did the allocated meat tubs, I replied well this is a concern from a qualified experienced chef. He said for me to tell Brett that I am freezing it down. I suggested to the catering manager that he tell Brett as I already asked 1 month prior if he could talk to Brett about his behaviour towards me and other staff (doesn’t communicate, ignores you, grunts at you when talking about prep etc). I have had nothing to do with Brett since him being aggressive and rude and do not really work along side him on any given shift. I advised catering manager I feel uncomfortable approaching Brett, he said it will be fine. I then approached Brett (Sarah right beside him on bench and Steve on bench behind, and lunch service was in 20 minutes). I asked him if he had a minute, where I was ignored twice. I then said again ‘Brett’, when he yelled at me ‘what’. I stated to him I am not yelling at you or talking to you like that, I’m here to let you know if your wondering where all the chicken (50kg) has gone it’s in the freezer as the chicken is out if date tomorrow. I also said when doing the meat packaging the chicken and red meats have to be in separate tubs as chicken bags tend not to be sealed properly. He might not be aware as he never packs stock away. His rudeness is noticed by other team members and obviously I am getting triggered by just doing my job and then said to Sarah, so you heard him aggressively yell at me and be totally rude by ignoring me (still have to be professional even if you don’t get on with the person). Sarah is ops admin and also a chef on the floor at times. Sarah just shrugged me off and walked away. 1150 I told Andrew Brett is still being aggressive and ignoring me when I try to talk to him, and told Andrew that is why I don’t like being near him and haven’t done so since I returned in March. I started to feel anxious and told Andrew I was going down to the ward room kitchen because I was sick of looking like the mental worker in an emotional stressed state. Again Brett’s behaviour towards me is swept under the carpet. I returned within 15 minutes, where I asked Jack where was Brett as he was also on dinner shift jack annoyed said he went home. I said what for, I was the one who mentally got affected and left the kitchen to settle a panic attack, but I returned to proceed with my tasks. Jack actually praised me for returning, as it was now only and him for the dinner service as Brett has left for what reasons as I only approached to advise chicken had been frozen otherwise it goes in the bin beyond use by date. …” (Reproduced verbatim)
Interestingly, Compass took Ms Budzinauskas only to that part of the narrative in which she referred to having returned to the workplace to find that Mr Critcher had left. It was put to Ms Budzinauskas that this demonstrated that “that incident did occur”.[40] Presumably, Compass was suggesting that Ms Budzinauskas’s description of events was consistent with Mr Critcher having been so upset that he had had to leave the workplace. But this was not put to her. As her narrative suggests, in asking “Jack” why Mr Critcher had left, Ms Budzinauskas did not know the reason.
More significantly, though, Compass did not lead any evidence to directly dispute Ms Budzinauskas’s narrative. She was not significantly challenged on it. The only substantive challenge to her version of events was the suggestion put to her in cross-examination that she had shouted at Mr Critcher. Ms Budzinauskas stated “there was no yelling from me to Brett at all, period”.[41]
In her submissions, Ms Budzinauskas properly called into question the evidence on which Compass relied to prove the facts alleged in Allegations 3 and 4. The only evidence Compass led was that contained in paragraphs 18 and 19 of Mr Pritchard’s statement, reproduced above. Mr Pritchard was not present during the events of 4 and 5 September 2024. His evidence – presented as being “to the best of his knowledge” – is based on what other people told him had happened and how it had made them feel. There are no statements from Ms Kaldermis, Mr Critcher or any of the witnesses to the incidents to whom Mr Pritchard referred, but did not name. There is no corroborating evidence, such as contemporaneous documents recording what these people supposedly told Mr Pritchard. The only person who gave evidence as to the events of 4 and 5 September 2024 and who was present at the time was Ms Budzinauskas herself.
It is a curious feature of Compass’s case that Mr Metcalf saw fit to remove Mr Pritchard from the disciplinary process due to him having been personally named in the Second Bullying Application, and yet relied only on his voice to establish the reasons for Ms Budzinauskas’s dismissal.
The consequences for Ms Budzinauskas of Compass finding that Allegations 3 and 4 were substantiated were significant. That finding is at the heart of these proceedings. In those circumstances, I am loath to accept a hearsay account of what occurred on 4 and 5 September 2024, and especially as to how people were made to feel, over that of a participant in the events.
At the hearing, Compass submitted that the behaviour alleged in Allegations 3 and 4 was consistent with Ms Budzinauskas’s “repeated aggressive belittling behaviour towards other employees”.[42] It relied in this regard on the behaviour in January 2024 that led to the Warning, and on Mr Pritchard’s evidence as to the events of 17 October 2024, in which he described Ms Budzinauskas as being aggressive, shouting and “swinging her arms around”.[43]
There was some controversy as to the Warning, and the extent to which Compass could rely on it having agreed in the First Bullying Application to “sunset” it. What Compass took “sunsetting” to mean was not clearly explained. Ms Budzinauskas stated that it meant that the Warning had been “dismissed”.[44] There was also a dispute as to whether Ms Budzinauskas engaged in the conduct that grounded the Warning. She denied having done so. The Warning itself does not provide details. The only evidence that Compass led regarding the events of January 2024 was again a hearsay account from Mr Pritchard.
Ms Budzinauskas also denied acting aggressively on 17 October 2024, both in her written material and under cross-examination. Rather, she claimed that she was subject to aggressive and intimidating behaviour from Mr Pritchard and others, to the point where she was “mobbed bullied”.[45] Other than being asked whether she had acted aggressively towards Mr Pritchard, Ms Budzinauskas was not challenged on her version of events.
I have considered Compass’s submissions that Ms Budzinauskas demonstrated a pattern of behaviour. I am mindful that it made a finding that Ms Budzinauskas acted inappropriately in January 2024, although on the evidence there may be room to debate whether she had acted “aggressively” at the time. I also accept that the events on 17 October 2024 involved “heightened emotions”, to adopt Mr Pritchard’s words. However, it is relevant that there is nothing to suggest that Compass regarded those events as relevant to its decision to dismiss Ms Budzinauskas. There is no reference to them in the documents created between 17 October 2024 and the dismissal, and there is no evidence that they were the subject of any discussion between Ms Budzinauskas and Compass during that period. Overall, I do not consider that Compass’s submissions assist in determining whether Ms Budzinauskas engaged in the conduct alleged against her in Allegations 3 and 4.
Compass contended that I should view Ms Budzinauskas’s conduct as being very serious. It submitted: [46]
“…And whilst an occasional or even low - repeated low level breach of policy may not always warrant the termination of an employee’s employment, the conduct of the applicant in this instance must be viewed through the lens of the effect that it had and was having on the safety and welfare of other employees of the respondent.
The applicant’s repeated aggressive belittling behaviour towards other employees including the employees directly affected by the behaviour on 4 and 5 September, which led them to raise internal concerns about the direct impact it was having on them where one was forced to leave – leave work due to the applicant’s behaviour cannot be understated. Then, when approached directly by her manager, regarding her behaviour on 4 and 5 September, the applicant continued to act in an aggressive manner towards him. So this behaviour is directly contrary to the basic expectations required of an employee in any workplace and more significantly, it breached the workplace policies of the respondent on which the applicant was regularly trained.”
In my view, Compass did not put on an evidentiary case that rose to those submissions.
Conclusion
I am not satisfied on the evidence that Compass has established that Ms Budzinauskas engaged in the conduct alleged in Allegations 3 and 4. As this was the basis for the dismissal, I find that there was no valid reason for the dismissal related to Ms Budzinauskas’s capacity or conduct.
Notification of reason and opportunity to respond
As I am not satisfied that there was a valid reason for the dismissal, these criteria have no application to the present circumstances.[47]
Any unreasonable refusal by Compass to allow Budzinauskas to have a support person
Compass did not unreasonably refuse to allow Ms Budzinauskas to have a support person present in relevant discussions. To the contrary, the letters from Compass to Ms Budzinauskas of 14 October 2024, 17 October 2024, 13 November 2024 and 10 December 2024 invited her to bring a support person of her choice to the meetings to which they referred. The response meeting that had been scheduled for 17 October 2024 was postponed to allow for Ms Budzinauskas’s support person to attend.
The size of Compass’s enterprise, and access to dedicated human resource management specialists or expertise
Compass submitted that it is “a large employer and it has comprehensive procedures and guidelines to deal with employee performance”[48] and that it has “dedicated human resource management specialists (HR Specialists) in its business”.[49] Any unfairness in the dismissal cannot be attributed to, or ameliorated by, the lack of available resources or expertise.
Other relevant matters
Ms Budzinauskas is 50 years of age. She resides in a regional town in the Shoalhaven area of New South Wales.
Ms Budzinauskas had more than 10 years service with Compass at the time of her dismissal. The Warning is the only evidence of Compass having raised any issues regarding her performance and conduct prior to the events giving rise to these proceedings. As I have already observed, there was some controversy as to the extent to which Compass could rely on the Warning and I have approached it with caution, In any event, as I am not satisfied on the evidence that Compass has established that Ms Budzinauskas engaged in the conduct alleged in Allegations 3 and 4, I consider that the Warning is of no significance for present purposes.
Conclusion
I am satisfied that Ms Budzinauskas’s dismissal was harsh, unjust and unreasonable as there was no valid reason for her dismissal and having regard to her (relatively unblemished) length of service, her age and her regional location.
Remedy
Having found that Ms Budzinauskas was a person protected from unfair dismissal and that she was unfairly dismissed, I have the discretion to order her reinstatement, or to order that Compass pay her compensation.[50] Importantly, a finding of unfairness in the dismissal does not oblige me to order one or the other. The question of whether to order any remedy is a matter within my discretion.[51]
Reinstatement is not appropriate in this case. The assertions that Ms Budzinauskas made about Compass management, and in particular Mr Pritchard, Ms Grana and Mr Metcalf, lead me to conclude that it would be difficult to reestablish an effective working relationship between them. I also have in mind that Ms Budzinauskas relied on statements from former colleagues which were directed to demonstrating a poor culture and work environment at Compass, or what one of them described as a “psychosocial toxic environment”.[52] Finally, Ms Budzinauskas stated that she “would never recommend any body to work for Compass”.[53]
I am satisfied, however, that an order for payment of compensation is appropriate in all the circumstances of this case.[54]
In assessing compensation, I am required to take into account all the circumstances of the case.[55] In doing so, I will adopt the well-established methodology for assessing compensation in unfair dismissal cases set out in Sprigg v Paul’s Licensed Festival Supermarket (“Sprigg”)[56], as follows:
Step 1: Estimate the remuneration the applicant would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount they would have received if they had continued in their employment.
Step 1 requires an assessment of the remuneration that Ms Budzinauskas would have received, or would have been likely to receive, had she not been dismissed.[57] This requires an estimation of her anticipated period of employment;[58] that is, how long she would have remained in employment but for the dismissal, and the remuneration she would have received, or been likely to receive, during that period.[59] There is an element of speculation in this counterfactual task, as it involves an assessment of what would have been likely to happen in the future had Ms Budzinauskas not been dismissed. In making that assessment, I am required to consider the actual state of facts. In each case, it is necessary for the Commission to address itself to the question whether, if the dismissal had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means.[60]
Ms Budzinauskas’s evidence was that she had planned to “be like” Cheryl Dale, who was employed by Compass for 25 years.[61] I am mindful she also tendered a significant amount of material that she said demonstrated that she had been bullied and otherwise treated unfairly by Compass for two years, with adverse consequences for her health and wellbeing. However, none of that evidence suggested that she wished to leave the company. To the contrary, it is clear that she was seeking to have her concerns addressed so that she could continue in her employment.
There is nothing to suggest that, but for its findings regarding Allegations 3 and 4, Compass would have sought to bring the employment to an end.
On the evidence, I consider that the remuneration Ms Budzinauskas would have received, or would likely have received, had she not been dismissed is an amount equal to one year’s remuneration. In my view, had she not been dismissed, she would have continued to work for at least that period.
Step 2 in Sprigg reflects the statutory requirement that the Commission take into account any amounts earned by Ms Budzinauskas from employment or other work since the dismissal.[62] Ms Budzinauskas stated at the hearing that she had been unemployed for five months and was “finding it hard to get a job in a regional town”.[63] I accept that evidence. Accordingly, for the purposes of step 2 in Sprigg, there are no earnings since the dismissal that would require an adjustment to the amount of compensation to be ordered.
I have considered whether any discount should be made for contingencies,[64] consistent with step 3 in Sprigg. A discount for contingencies is a means of taking into account the various probabilities that might otherwise affect earning capacity.[65] There was nothing presented by the parties to suggest that in the circumstances of this case,[66] a deduction should be made for contingencies.
With respect to step 4 in Sprigg, I have considered the impact of taxation. I will determine compensation as a gross amount, and it will be for the respondent to deduct any amount of taxation required by law.
As to the remaining statutory considerations, I observe:
There is nothing to suggest that any adjustment to any proposed order for compensation is warranted having regard to the viability of Compass’s business.[67]
Ms Budzinauskas was employed by Compass for a little over 10 years.[68] This is a lengthy period that supports a significant compensation order being made.
Ms Budzinauskas provided virtually no evidence that she had taken reasonable steps to minimise the impact of the dismissal. [69] It was for her to do so.[70] Her evidence was limited to her statement that she was “finding it hard to get a job in a regional town”, to which I have already referred. I am mindful that Compass made no submission that any order of compensation should be reduced due to any failure by Ms Budzinauskas to mitigate her loss. Even so, in the absence of any evidence of attempts at mitigation, I consider that it is appropriate to make some deduction from the compensation that I might otherwise order.
There being no findings of misconduct by Ms Budzinauskas, I am not required to reduce the amount of compensation I would otherwise order.[71]
In considering compensation I have not included a component for shock, humiliation or distress.[72]
My provisional conclusion is that it is appropriate in all the circumstances of this case, particularly given that there was no valid reason for Ms Budzinauskas’s dismissal, that she receive compensation of 20 weeks pay, plus superannuation. This is a provisional conclusion as the evidence does not permit me to determine the quantum of any order.
There was no evidence led directly regarding Ms Budzinauskas’s remuneration. The only information that I have is an entry in Compass’s response to the unfair dismissal application that Ms Budzinauskas was paid $30 per hour, and Ms Budzinauskas’s employment contract which provides that she was required to work 76 hours per fortnight. Applying simple arithmetic, I might conclude that she was paid $1,140 per week ($30 times 38), but I am loath to make an order on such tenuous footings.
In any event, I do not have any evidence to ensure that the compensation cap is applied, which in this case is the remuneration that Ms Budzinauskas received or was entitled to receive in the 26 weeks preceding her dismissal.[73] To be clear, provided that the dollar amount of 20 weeks pay is less than the compensation cap, I would consider it to be appropriate having regard to all the circumstances of the case. If that is confirmed to be the situation, I propose to make an order requiring payment of compensation in that amount, plus superannuation. Otherwise, the compensation will be equal to the compensation cap.
However, I must confirm the dollar value of an order that Ms Budzinauskas be paid compensation of 20 weeks pay, and the compensation cap in this matter, before finalising my order.
Directions
I make the following directions:
By 4.00pm on 1 September 2025, Compass is to file with the Commission, and serve on Ms Budzinauskas a document setting out:
(a) Ms Budzinauskas’s weekly pay at the time of her dismissal; and
(b) details of:[74]
(i)the total amount of remuneration that Ms Budzinauskas received, or that she was entitled to receive, (whichever is the higher) in the 26 weeks immediately before the dismissal; and
(ii)if Ms Budzinauskas was on leave without pay or without full pay during any part of that period—the amount of remuneration taken to have been received by her for the period of leave in accordance with the Fair Work Regulations 2009.
If Ms Budzinauskas disputes the evidence produced by Compass in accordance with direction (1), she is to file with the Commission, and serve on Compass, a document setting out the basis of her objection and any evidence in support of that objection by 4.00pm on 8 September 2025.
COMMISSIONER
Appearances:
Monica Budzinauskas, the Applicant
Andrew Chamberlain, for the Respondent
Hearing details:
19 May 2025
Sydney (video)
[1] In this decision, all references to legislation are to provisions of the Fair Work Act
[2] Ms Budzinauskas’s evidence in chief was contained in a statement comprising both evidence and submissions, and in a large number of documents referred to in, and filed with, the statement. The statement and documents were marked collectively as Exhibit 5. Ms Budzinauskas’s material in reply was contained in a statement that again comprised evidence and submissions. That document was marked Exhibit 6.
[3] Two statements of Cheryl Dale, both dated 28 March 2025; Statement of Elizabeth Gulliford, 17 March 2025
[4] Statement of Jason Sands, 29 March 2025
[5] Statement of Bob Pritchard, Attachment 2
[6] Statement of Bob Pritchard, par 16b
[7] Statement of Bob Pritchard, par 16f
[8] Statement of Bob Pritchard
[9] Statement of Bob Pritchard, Attachment 3
[10] There was some controversy as to whether Ms Budzinauskas had made prior arrangements for her support person, Cheryl Dale, to be present at the meeting. The evidence of Mr Pritchard and Ms Dale was inconsistent in this regard. As neither was cross-examined, their respective versions were not tested. However, I do not consider this to be material to my decision.
[11] Statement of Bob Pritchard, par 24
[12] Exhibit 5, document included as part of Section 3, document 3b-3c. There is reference in other evidence to an email Ms Budzinauskas sent to Compass on 24 October 2024. I cannot locate an email with that date in the evidence of either party. However, I cannot assume that the email of 24 October 2024 and the one I have reproduced in part are one and the same.
[13] Statement of John Metcalf, par 24
[14] Exhibit 5, document included as part of Section 4, document 3a
[15] Exhibit 5, document included as part of Section 4, document 3a
[16] Exhibit 5, document included as part of Section 4, document 4c
[17] Exhibit 5, document included as part of Section 4 (not separately identified)
[18] Exhibit 5, document included as part of Section 4, document 4b; Statement of John Metcalf, Attachment 4
[19] Statement of John Metcalf, Attachment 5
[20] Statement of John Metcalf, Attachment 6
[21] See footnote 12
[22] Statement of John Metcalf, Attachment 7
[23] Section 396
[24] As prescribed by section 394(2)
[25] Within the meaning of section 382
[26] Within the meaning of section 389
[27] Ms Budzinauskas was dismissed on 23 January 2025, and filed her unfair dismissal application on 30 January 2025
[28] As defined in section 23
[29] Section 385
[30] Section 387
[31] Chubb Security Australia Pty Ltd v Thomas, Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) at [41]; Read v Cordon Square Child Care Centre[2013] FWCFB 762 at [48]-[49]
[32] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [14]
[33] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373
[34] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685
[35] Statement of Bob Pritchard, par 20
[36] See paragraph [18]
[37] Transcript, PN267
[38] Transcript, PN275
[39] Exhibit 5, document included as part of Section 4, document 4h
[40] Transcript, PN280
[41] Transcript, PN288
[42] Transcript, PN418
[43] Statement of Bob Pritchard, par 23
[44] Exhibit 6, page 6 (Digital Hearing Book p 169); Transcript PN218
[45] Exhibit 6, page 6 and 9 (Digital Hearing Book pp 169 and 172)
[46] Transcript, PN417-PN418
[47] Chubb Security Australia Pty Ltd v Thomas, Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) at [41]; Read v Cordon Square Child Care Centre[2013] FWCFB 762 at [48]-[49]
[48] Outline of Submissions by Respondent, par 40
[49] Outline of Submissions by Respondent, par 41
[50] Section 390(1)
[51] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198 at [9]
[52] Statement of Elizabeth Gulliford, 17 March 2025
[53] Exhibit 5, p 13
[54] Section 390(3)(b); Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206 at [17]
[55] Section 392(2)
[56] (1998) 88 IR 21, adopted for the purposes of the Fair Work Act in Bowden v Ottrey Homes Cobram and District Retirement Villages[2013] FWCFB 431
[57] Section 392(2)(c)
[58] See Ellawala v Australian Postal Corporation, Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) at [34]
[59] He v Lewin (2004) 137 FCR 266; [2004] FCAFC 161 at [58]
[60] He v Lewin (2004) 137 FCR 266; [2004] FCAFC 161 at [58]-[59]
[61] Transcript, PN426
[62] Section 392(2)(e) and (f)
[63] Transcript, PN426
[64] Section 392(2)(g)
[65] Ellawala v Australian Postal Corporation, Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) at [43]
[66] Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge (2013) 229 IR 6; [2013] FWCFB 431 at [53]
[67] Section 392(2)(a)
[68] Section 392(2)(b)
[69] Section 392(2)(d)
[70] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002) at [34], citing Lockwood Security Products Pty Limited v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001) at [45]
[71] Section 392(3)
[72] Section 392(4)
[73] Sections 392(5) and (6)
[74] See sections 392(6)
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