Mr Aung Min v Rohanna Pty Ltd as Trustee for the Skippers Unit Trust

Case •

[2025] FWC 1622

•

10 SEPTEMBER 2025
[2025] FWC 1622

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Aung Min

v

Rohanna Pty Ltd as Trustee for The Skippers Unit Trust

(U2025/2754)

DEPUTY PRESIDENT BINET

PERTH, 10 SEPTEMBER 2025

Application for an unfair dismissal remedy

  1. On 8 March 2025, Mr Aung Min (Mr Min) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Rohanna Pty Ltd as the Trustee for the Skippers Unit Trust (Skippers).

  1. Mr Min was employed by Skippers as a used car salesman at Skipper’s car yard located in Welshpool, Western Australia (Welshpool Yard).  Mr Min’s employment was terminated after the business lost trust and confidence in Mr Min’s capacity to perform his duties effectively and appropriately.

  1. On 20 March 2025 Skippers filed a Form F3 - Employer’s response to unfair dismissal application stating that it had no jurisdictional objections to the Application.

  1. On 3 April 2025, 10 April 2025 and 11 June 2025 the parties participated in a conciliation conference. The matters in dispute could not be resolved.

  1. Taking into account the parties wishes and circumstances, a hearing, rather than a determinative conference, was determined to be the most effective and efficient way to determine the Application. Consequently, the Application was listed for a hearing in Perth on 13 June 2025 (Hearing).

  1. Directions for the filing of materials in advance of the Hearing were issued to the parties on 14 April 2025 and amended on 8 May 2025 and 9 May 2025 (Directions).

Permission to be represented

  1. The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.[1]

  1. Skippers sought permission to be represented at the Hearing.

  1. Having considered the submissions of the parties, leave was granted to Skippers to be represented, pursuant to section 596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.

  1. At the Hearing, Mr Shane Sirett (Mr Sirett) a lawyer from Thomson Geer represented Skippers.  Mr Min represented himself,

Evidence

  1. The Directions required the parties to file their witness evidence in chief in advance of the Hearing.

  1. In accordance with the Directions, Mr Min filed a witness statement setting out his evidence in chief.[2]

  1. At the Hearing, Mr Min gave further oral evidence and was cross examined by Mr Sirett. 

  1. In accordance with the Directions, Skippers filed witness statements setting out the evidence in chief of the following witnesses:

a.Mr Charlie Wilson-Davies (Mr Wilson Davies)[3]  – Mr Wilson-Davies is the Roaming Sales Manager of Skippers.

b.Mr Zaymn Chapman-Ryan (Mr Chapman-Ryan)[4] – Mr Chapman-Ryan is Group General Manager of Sales and Finance for Skippers.  In his role he has general overview of the performance of sales people at the various car yards operated by Skippers.

c.Mr Joe Higgins (Mr Higgins)[5] – Mr Higgins is a Relieving Manager for Skippers.  In his role he covers for other Managers when they are absent from work at any of the Skipper car yards. 

d.Mr Mathew Cary (Mr Cary)[6] – Mr Cary is the Manager of the Welshpool Yard where Mr Min was employed.

  1. Each of the Skippers witnesses gave further oral evidence at the Hearing and were cross examined by Mr Min.

  1. Skippers also filed a witness statement for Mr Jack Sharman however this was withdrawn prior to the commencement of the Hearing,

  1. The parties jointly prepared and filed a digital court book containing the evidence and submissions of the parties prior to the Hearing (DCB). The DCB was admitted at the Hearing as a single exhibit and marked ‘Exhibit DCB’.[7]

  1. Final written submissions were filed on behalf of Mr Min on 7 July 2025. Final written submissions were filed by Skippers on 22 July 2025. 

  1. In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.

Background

  1. Mr Min commenced employment as a full time Car Salesman at Skippers at the Welshpool Yard on 30 May 2023 pursuant to a contract of employment.[8]  During his employment he was covered by the Vehicle Repair, Services and Retail Award 2020 (Award).

  1. Mr Min was renumerated by way of retainer of $1,115 gross per week and commission.[9]  The commission payment was structured as follows:[10]

No. of vehicles delivered per month  Commission Payment

0-20   $250

21-25  $300

26-30  $350

31 plus  $400

  1. Mr Higgins was appointed Relieving Manager at the Welshpool Yard on 25 May 2024.  At that time Skippers had a policy which allowed salespersons to borrow vehicles owned by the company to drive to and from work and for limited personal use.  Mr Higgins says that he made it well know that high performance vehicles were not to be taken home without his express approval.[11]  Mr Min says there was no restriction on the vehicles which the Salespeople could take for personal use.  This is rebutted by the Skippers witnesses.  For example Mr Cary’s evidence is that:

“Is there any restrictions on high performance vehicles?   I have certain cars – there are a number of cars in the yard which I will not allow salespeople to drive, and everybody knows what those cars are.  Normally they are the very high performance ones or the very expensive ones. Normally over $100,000.”[12]

  1. At 3:30am on 27 May 2024 Mr Min crashed an Audi RS4, a high performance vehicle valued at nearly $90,000 owned by the dealership near Crown Casino, writing the vehicle off (Vehicle Writeoff).[13]  When Mr Min informed Mr Higgins of the Vehicle Writeoff Mr Higgins alerted senior management and told Mr Min to complete an incident report.[14]

  1. Mr Cary. Mr Chapman-Ryan and Mr Higgins say that Mr Min did not have approval to take the vehicle.[15]

  1. Mr John Hughes, the owner of the business, directed Mr Min to attend a meeting with him.  During the course of the meeting Mr Hughes rang Mr Higgins to confirm whether he had given his approval for Mr Min to take the vehicle.  Mr Higgins told Mr Hughes that he definitely had not given his approval for Mr Min to take the vehicle.[16]

  1. Mr Higgins says that both he, and Mr Hughes, made it very clear that the Vehicle Writeoff was a serious matter and that Mr Min’s performance and conduct would be under close scrutiny moving forward. [17] Mr Chapman-Ryan and Mr Cary corroborate that following the incident Mr Min was, and must have been, aware that he was under increased scrutiny in the workplace.[18]

  1. Mr Min attracted further scrutiny in July 2024 when a complaint was received from a customer complaining that Mr Min swore in front of them and their parents and that he displayed a card with the word c*** in his office to which their parents took offence. [19]  (Card Incident).  Mr Hughes issued a further warning to Mr Min in relation to the Card Incident:

“Was there a written warning regarding that?‑‑‑No.  No.  It was verbal from John Hughes.
To me directly?‑‑‑Yes, via the phone when I walked into my – your office, with him on the phone.
That phone was in your hands and in your ‑ ‑ ‑?‑‑‑Yes, you – and John Hughes was on loudspeaker when he addressed you.”[20]

  1. Mr Cary says that he also warned Mr Min on other occasions about swearing in front of customers.[21]  Mr Min conceded this to be true under cross examination.[22]

  1. The evidence is that all salespeople at the various John Hughes car yards including the Welshpool Yard are expected to achieve certain targets of sales and financial penetration each month.[23] 

  1. The majority of the company’s income is generated from the sale of finance to the purchasers of its vehicles, rather than the sale of vehicles.[24]

  1. The target at the Welshpool Yard is 31 sales each month and a financial penetration of 25%.  The financial penetration target requires salespeople to convince customers to finance their vehicle via finance provided by Skippers in at least ¼ of the sales they make.  Salespeople who do not achieve these goals are counselled and provide with training.[25]

  1. Mr Chapman-Ryan says that Mr Min rarely achieved his targets.  In his first year of employment Mr Min reached this target on five occasions.  In his second year of employment on only three occasions.  The last occasion upon which he reached this target was April 2024.[26]  Mr Min did achieve salesperson of the month is July 2023 (when he sold 38 vehicles) and April 2024 (when he sold 32 vehicles).  On only five occasions he sold more than 32 vehicles in a month however he did not achieve the highest sales in those months. [27]

  1. In the last six months of his employment Mr Min’s finance penetration only exceeded 25% twice.  His average sales for this period was 21 sales per month and his average finance penetration was only 23%. This was well below the yard average of 27 sales per month and 26% finance penetration.[28]

  1. Mr Chapman-Ryan says in November 2024 he counselled Mr Min that his then financial penetration of 19% was unsatisfactory.  Mr Chapman-Ryan says he also bought to Mr Min’s attention that Mr Min had sold only 15% of all cars sold in the yard.   Mr Chapman-Ryan says he offered Mr Min support and training to assist him in improving however Mr Min declined the offer.  Mr Chapman-Ryan says that he repeated that he was happy to provide support or training and that he expected to see a noticeable improvement in Mr Min’s financial penetration.  According to Mr Chapman-Ryan, Mr Min simply said his performance “is what it is”.[29]

  1. Mr Min was invited to attend training sessions to support his performance on 7/2/24, 23/2/24, 11/3/24, 18/6/24, 1/5/24 and 3/7/24.[30]  Mr Chapman-Ryan says that these sessions were group sessions for underperforming salespeople not all salespeople and that the sessions were targeted at assisting underperforming employees improve their performance.[31] 

  1. Mr Cary also reports he had ongoing concerns about Mr Min’s performance and conduct.  Mr Cary says he discussed this with Mr Min as recently as December 2024:

    “Yes, and in that chat what was it in regards to?‑‑‑It was regarding your dishonesty and the reports I get back from customers about over‑promising and under‑delivering, and lying to me about deals that potentially may not turn out to be deals, et cetera.”[32]

  1. Mr Cary says that Mr Min had a habit of exaggerating leads and the progress of sales.  Mr Cary gives as an example an incident on 12 February 2025.  Mr Min had informed Mr Cary that he had secured a deal over the phone and that the buyer had transferred the deposit and was sending back a signed contract by email  Another salesman present at the same time asked Mr Min to confirm that the deposit had been paid and the signed contract returned because he had a buyer also interested in purchasing the same vehicle.  Mr Min confirmed these things and the other salesman informed his customer that the vehicle had been sold.  However, the next day when Mr Cary followed up with Mr Min, Mr Min admitted the client had not yet paid the deposit or returned the signed contract.  Ultimately the customer did not proceed with the sale. (Deposit Incident)[33]

  1. Mr Cary concedes that Mr Min worked hard however he says this was outweighed by his dishonesty and exaggeration. [34]

  1. On 10 February 2025 Mr Min had a discussion with a potential client about the purchase of a vehicle (Vehicle).  The client agreed to provide a holding deposit for the business to reserve the Vehicle pending the client viewing the vehicle and the business valuing the client’s trade in vehicle.[35] 

  1. The payment of the deposit was recorded in the dealer management system with the identification ‘Deal ID: #314216 (Deal).[36]

  1. On 13 February 2025 Mr Min informed his manager Mr Cary that he was unwell and would require a few days off work on personal leave.  Mr Min informed Mr Cary of the Deal as follows:[37]

“I have a subject to inspection delivery today at 1pm.  The trade needs to be sight by josh parkins. Who put $25K.  Her names Ebony, the car she is picking up is cleaned, my23 Cherokee. Got some glitter on the seats.  Cleaners tried his best.”

  1. Mr Min provided a medical certificate from his doctor for 16 February 2025 dated 14 February 2025.[38]

  1. On 14 February 2025 the client attended at the Dealership. Mr Min was absent from work on personal leave on that date.  Another salesman Mr Ben Fairbairn (Mr Fairbairn) spent two hours showing the client the Vehicle, arranging the valuation of the client’s tradein vehicle and negotiating a sale price with client.[39]  The vehicle was purchased by the client and the Deal attributed to Mr Fairbairn in the dealer management system.

  1. At 10:12am on 18 February 2025 Mr Wilson-Davies received an email from Mr Min questioning why the Deal was now in Mr Fairbairn’s name on the dealer management system.[40]

  1. Mr Wilson-Davies called Mr Min and explained that had Mr Min secured a signed unconditional contract when the client paid the deposit then the Deal would have remained his name however as he had not and Mr Fairbairn had spent several hours with the client and ultimately secured the sale then the Deal was rightfully Mr Fairbairn’s.  Mr Wilson-Davies reminded Mr Min that it was company policy to obtain a signed unconditional contract when securing a holding deposit.[41]

  1. Mr Wilson-Davies says that Mr Min responded to his explanation in an abrupt and negative way. [42]

  1. At 10:43am Mr Wilson-Davies rechecked the Deal in the dealer management system and was surprised to see it had been changed to Mr Min’s name.[43]

  1. Mr Wilson-Davies immediately called Mr Min’s Sales Manager Mr Cary to find out who had changed the deal from Mr Fairbairn’s name to Mr Min’s.  Mr Cary confirmed that he had not made the change and agreed that the Deal should be in Mr Fairbairn’s name.[44]

  1. Mr Wilson-Davies then called Mr Min to find out who had changed the names as only managers and administrative staff had the access to do so.  Mr Wilson-Davies says that Mr Min admitted that he had arranged for the change to be made because he thought the situation was unfair.  It is not contested that the change was made by Mr Min’s sister who was employed by the Dealership and who had the capacity to access and amend the dealer management system (Deal Incident).[45]

  1. Mr Wilson-Davies informed Mr Min that he was on the view that Mr Min’s conduct in arranging for the name to be changed in direct breach of his instruction was gross misconduct. [46]  Mr Wilson-Davies confirmed this in an email to Mr Min copied to Mr Cary.

  1. Mr Min says that on 19 February 2025 he met with Mr Hughes to raise concerns about bullying and the changing of the Deal to Mr Fairbairn’s name.[47]  Mr Cary denies ever having witnessed Mr Min being bullied or Mr Min ever reporting that he had been bullied.[48]  Mr Min says that Mr Hughes acknowledged his good performance and offered to transfer Mr Min to a different work location.  Mr Min says that Mr Hughes told him he would get back to Mr Min after the Saturday managers meeting.[49]

  1. Mr Chapman-Ryan says at the next managers meeting held on 22 February 2025 the managers present discussed Mr Min’s request to move yards (Managers Meeting).  During this discussion the following matters were canvassed:[50]

a.That Mr Min had taken a high performance car home and had written the vehicle off.

b.Mr Min’s poor sales performance.

c.Mr Min’s conduct with customers including the Card Incident and reports of him swearing in front of customers.

d.The Deposit Incident.

e.The Deal Incident,

f.Mr Min’s tendency to exaggerate the status of his leads and sales.

  1. The consensus reached was that the management team had lost confidence in Mr Min and his employment was no longer tenable.[51]

  1. Later the same day Mr Cary and Mr Chapman-Ryan asked Mr Min to meet with them (Termination Meeting).  During this meeting Mr Min was told that Skippers had considered his request for a transfer but had decided to terminate his employment as no yard was willing to have him because his performance was not meeting expectations.  Mr Min did not object or protest.[52]

  1. Mr Min was paid two weeks pay in lieu of notice.[53]

  1. Mr Min’s estimated taxable income for 2024 was $216,847.[54]

  1. Since his dismissal Mr Min has obtained alternative employment.  In his new role he his paid a retainer of $60,000 per annum and a monthly bonus of 12.5%.[55].

  1. Mr Min seeks a remedy of compensation.[56]

Is Mr Min protected from unfair dismissal?

  1. An order for reinstatement or compensation may only be issued if Mr Min was unfairly dismissed and Mr Min was protected from unfair dismissal at the time of his dismissal. 

  1. 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 her 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; and

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 Fair Work Regulations 2009 (Cth) (Regulations), is less than the high income threshold.

  1. For the purposes of Part 3-2 of the FW Act an ‘employee’ means an employee of a national system employer. There is no dispute[57] and I am satisfied that Skippers is a national system employee and Mr Min is therefore a national system employee. 

  1. If the employer is not a small business, the ‘minimum employment period’ is six months ending at the earlier of the following times:[58]

a.the time when the person is given notice of the dismissal; or

b.immediately before the dismissal.

  1. There is no dispute,[59] and I am satisfied, that Skippers is not a small business employer for the purposes of section 383 of the FW Act.

  1. Mr Min commenced employment with Skippers on 30 May 2023[60].  Mr Min was dismissed on 22 February 2025. [61]

  1. I am therefore satisfied that, at the time of dismissal, Mr Min was an employee who had completed a period of employment of at least the minimum employment period.

  1. There is no dispute, and I am satisfied, that the Award applied to Mr Min’s employment at the time of his dismissal. Consequently, I am satisfied that Mr Min was protected from unfair dismissal.

Was Mr Min unfairly dismissed?

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

a.the person has been dismissed;

b.the dismissal was harsh, unjust or unreasonable;

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

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

Was Mr Min dismissed?

  1. Section 386(1) of the FW Act provides that a person has been dismissed if the person’s employment was terminated at the employer’s initiative or the person resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by their employer.

  1. Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

  1. There was no dispute[62], and I find, that Mr Min’ employment with Skippers was terminated at the initiative of Skippers.

  1. I am therefore satisfied that Mr Min has been dismissed within the meaning of section 385 of the FW Act.

Was Mr Min’ dismissal a case of genuine redundancy?

  1. Pursuant to section 389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:

a.the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

b.the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

  1. It was not in dispute,[63] and I find, that Mr Min’s dismissal was not due to Skippers no longer requiring his job to be performed by anyone because of changes in Skippers’ operational requirements.

  1. I am therefore satisfied that the dismissal was not a case of genuine redundancy.

Was Mr Min’ dismissal consistent with the Small Business Fair Dismissal Code?

  1. Section 388 of the FW Act provides that a person’s dismissal is consistent with the SBFD Code if:

a.immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

b.the employer complied with the SBFD Code in relation to the dismissal.

  1. It was not in dispute, and I find, that Skippers was not a small business employer within the meaning of section 23 of the FW Act at the relevant time, having in excess of fourteen (14) employees.

  1. As Skippers is not a small business employer within the meaning of the FW Act, I am satisfied that the SBFD Code does not apply to Mr Min’ dismissal.

Was the Application made within the period required?

  1. Pursuant to section 396 of the FW Act, the FWC is obliged to decide whether an application was made within the period required in subsection 394(2) of the FW Act before considering the merits of an application.

  1. Section 394(2) of the FW Act requires that the Application is to be made within twenty-one (21) days after the dismissal took effect.

  1. It is not disputed[64], and I find, that Mr Min was dismissed from his employment on 22 February 2025 and made the Application on 8 March 2025. I am therefore satisfied that the Application was made within the period required in subsection 394(2) of the FW Act.

Was the dismissal harsh, unjust or unreasonable?

  1. The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd by McHugh and Gummow JJ as follows:

“…. It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”[65]

  1. Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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);

b.whether the person was notified of that reason;

c.whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;

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;

e.if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;

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;

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.

  1. Each of these criteria must be considered to the extent they are relevant to the factual circumstances of an application.[66]

  1. Mr Min submits that his dismissal was harsh because it caused him emotional and financial distress, was unjust because there was no valid reason for his dismissal and that it was unreasonable because he was not afforded procedural fairness.[67]

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

  1. In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[68] and should not be “capricious, fanciful, spiteful or prejudiced.”[69] It is not the role of the FWC to stand in the shoes of the employer and determine what the FWC would do if it was in the position of the employer.[70]

  1. Mr Min submits that the reasons for termination were vague and unsubstantiated.[71] 

  1. The employer carries the onus of establishing a valid reason.[72]  Skippers say that that Mr Min was dismissed because it had lost trust and confidence in him and his capacity to properly conduct himself and adequately perform his duties.

  1. Where a dismissal relates to an employee’s conduct, the FWC must be satisfied that the conduct occurred and justified termination.[73] The question of whether the alleged conduct took place and what it involved is to be determined by the FWC 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.[74]

  1. The standard of proof to be applied by the FWC is that set out in Briginshaw v Briginshaw[75] as follows:

“The standard of proof remains the balance of probabilities but 'the nature of the issue necessarily affects the process by which reasonable satisfaction is attained' and such satisfaction 'should not be produced by inexact proofs, indefinite testimony, or indirect inferences' or 'by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.”

  1. Skippers say that in March 2024 Mr Min was put on notice that his conduct in taking a high performance vehicle worth approximately $90,000 without approval and writing the vehicle off was unsatisfactory and he was warned that his conduct and performance would be under scrutiny as a consequence.

  1. Mr Min says that salespeople were permitted to use such vehicles for private use.[76]  He says that he asked Mr Higgins if he could drive the vehicle.[77] He asserts that from time to time salespeople write off vehicles and this is viewed simply as part of the course.[78] 

  1. Mr Higgins is adamant that salespeople at the Welshpool Yard were aware that they could not take a high performance vehicle for private use without his express approval.  He is adamant that he did not give such approval.  Mr Min did not call any witness to give evidence to the contrary.[79]

  1. Mr Min agrees that when he met with Mr Hughes, that Mr Hughes told him that he would be ‘keeping his eye’ on Mr Min however Mr Min asserts that Mr Hughes simply meant he was interested in Mr Min’s career.[80]

  1. I do not accept that Mr Min’s evidence that the writing off an extremely expensive vehicle in the early hours of the morning outside Crown Casino was treated by Skippers in the cavalier way Mr Min says it was.  Unsurprisingly the evidence of all of Skippers witnesses was that the incident was a serious matter putting Mr Min’s employment at risk.  Mr Higgins’ evidence is that he took the incident extremely seriously and conveyed this to Mr Min in no uncertain terms that the incident was viewed negatively by Skippers.[81]  I find it implausible that Mr Min could genuinely perceive Mr Hughes comment that he was ‘keeping an eye’ on him as a sign that Mr Hughes viewed Mr Min’s potential career trajectory as positive.

  1. Skippers say that in July 2024 Mr Min was warned that his conduct in displaying an offensive card and swearing in front of customers was unsatisfactory.[82]  Mr Min disputes that the card is offensive and that he was warned that it, and his bad language, was inappropriate.[83]  He also points out that the customer (as opposed to her parents) provided a positive rating of his service. 

  1. By any objective measure the public display of the card was in poor taste and not appropriate in the workplace. As too was Mr Min’s swearing in front of customers.  Mr Min eventually admitted under cross examination that the card could be seen as offensive.  It is unsurprising that Mr Min was instructed to remove the card.  Mr Min asserts that he did not receive a written warning in relation to the incident but did not contest the evidence of Mr Cary that he had been given a verbal warning by Mr Hughes in relation to the incident.[84] Mr Min in cross examination also conceded that he had been warned on multiple occasions about swearing in front of customers.[85]

  1. Mr Min’s standing with his managers was further undermined by his practise of exaggerating the status of sales and providing misleading information to his managers in an effort to secure sales.  Mr Min did not seriously challenge the evidence that he engaged in such practices. Given Mr Cary’s willingness to make concessions in favour of Mr Min and his general demeanour in giving evidence I am inclined to the view that Mr Cary was a frank and truthful witness.  I accept his evidence that Mr Min engaged in misleading behaviour and that Mr Cary discussed his concerns about such behaviour with Mr Min. 

  1. Skippers say that on 18 February 2025 Mr Min engaged in misconduct procuring the alteration of the attribution of the Deal contrary to a direction given to him.[86]  There is no dispute that Mr Min was told by Mr Wilson-Davies that the Deal was to be attributed to Mr Fairbairn.  Mr Min says that he did not engage in misconduct because he did not personally change the attribution of the Deal.

  1. The evidence is that Mr Min strongly disagreed with the attribution of the Deal to Mr Fairbairn and that the change in attribution was affected by Mr Min’s sister.  Mr Min chose not to call his sister to give evidence that the change in attribution was done without Mr Min’s prompting or knowledge.  I conclude that Mr Min procured the change in direct contradiction to the direction given to him by Mr Wilson-Davies that the deal was to be attributed to Mr Fairbairn.

  1. Skippers say that on a number of occasions from March 2024, Mr Min was informed by its management that his sales performance and results were short of his targets and that he must improve. Skippers identify a multiple training sessions provided to Mr Min to improve his sales outcomes.  Mr Min’s performance did not improve (in comparison with other salespersons) despite assistance in the form of training.

  1. Mr Min says that his performance was satisfactory, that he was not informed that it was deficient, and that he was not supported to improve his performance.  According to Mr Min the events identified by Skippers as ‘training sessions’ were attended by all salespeople.  To the extent that his finance penetrations figures were low he says that this was because he had been on periods of leave.  Mr Min tried to discredit the performance evidence by pointing out discrepancies in the numbers contained in the Employer Response and that in the evidence at Hearing.

  1. Mr Min did not call any witnesses to contest Skipper’s assertion that his performance was deficient or that the training sessions identified by Skippers in their materials did not occur or were not intended to support underperforming employees. The evidence is that Mr Min’s performance had been steadily declining since his engagement in 2023.  Mr Min did not tender any evidence or call any witnesses to demonstrate that not to be the case.  It is difficult in a commission driven environment to contemplate circumstances in which declining performance would not be raised with an employee. 

  1. Mr Chapman-Ryan explained that the finance penetration figures were not affected by periods of leave because of the manner in which they are calculated.  He also explained the discrepancy in the performance figures provided in the Employer Response and the evidence at the Hearing.[87]  I am satisfied that Mr Min’s performance trajectory was not positive.

  1. The evidence is that none of the other managers were willing to accept Mr Min’s proposed transfer to their yards.  If Mr Min was as successful a salesperson as he asserts it seems surprising that there was not keen competition amongst the yards for him to join them or for Welshpool to retain him.

  1. Mr Min asserts that in his meeting with Mr Hughes in which he discussed the transfer to another yard Mr Hughes expressed satisfaction with Mr Min’s performance. Mr Min did not call Mr Hughes as a witness.  It seems improbable that Mr Hughes expressed such a view given Mr Hughes’ involvement in the decision to terminate Mr Min’s employment and his earlier warnings to Mr Min about instances of misconduct.

  1. In the end it appears that it was a series of straws which eventually broke the back of Skipper’s willingness to retain Mr Min in its employment although arguably there was a basis to terminate his employment at a much earlier point in time.  It was not until the possibility of moving Mr Min to another yard that the business took the opportunity to consider Mr Min’s employment record as a whole. Having done so Skippers took the decision to terminate his employment.

  1. While the process of affecting that decision was flawed, based on the evidence before me, and the submissions of the parties, for the reasons above, I find that valid reasons existed for Mr Min’s dismissal.

Was Mr Min notified of the valid reason?

  1. Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[88] and in explicit,[89] plain and clear terms.[90]

  1. While I accept that Mr Min was on notice that his employment was at risk given his conduct and his inadequate performance, Skipper’s concede that Mr Min was not notified of the reasons for the termination of his employment until after that decision was made.

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

  1. An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[91]

  1. The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly.[92] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[93]

  1. Mr Min was not given an opportunity to respond to the reasons his dismissal was proposed until after the decision was made at the Manager’s Meeting. 

  1. Mr Min was provided with an opportunity to respond to some of the reasons for his dismissal at his meeting with Mr Chapman-Ryan and did not take advantage of the opportunity to do so.  Given the lack of an adequate explanation for his misconduct or his performance deficiencies in these proceedings his decision not to provide a response at the Termination Meeting is not entirely unsurprising.

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

  1. Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

  1. Mr Min says that he was not invited to have a support person present during the Termination Meeting.[94]  He does not assert that he requested that a support person be present.

  1. There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” [95]

  1. I am satisfied that Skippers did not unreasonably refuse to allow Mr Min to have a support person present at discussions relating to his dismissal.

Was Mr Min warned about unsatisfactory performance before the dismissal?

  1. Mr Min says that he did not receive any warnings about unsatisfactory performance before the dismissal.[96]

  1. I accept the evidence of Skipper’s witnesses that the inappropriateness of the behaviour in which Mr Min engaged in during the course of his employment was raised with him at the time of the respective incidents and that Mr Min’s underperformance was brought to his attention in multiple ways.

  1. I am satisfied that Mr Min was, or should have been aware, that his behaviour and his sales performance was under scrutiny.

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

  1. Where an employer is substantial and has dedicated human resources personnel, and access to legal advice, there will likely be no reason for it not to follow fair procedures.[97] 

  1. Skippers is a large business with a dedicated human resource function.  However, its human resource practices belie its size and the age of the business.

  1. Mr Min should have been issued with written warnings on each occasion his behaviour was inappropriate and he should have been placed on a formal performance management plan with respect to his behaviour and his sales performance.  Skippers instead relied entirely on verbal warnings and counselling.  This came at some significant cost for the business. The lack of formality made the defence of Mr Min’s claim more complex, more costly and more disruptive to the business.

  1. Before a final decision was made to terminate Mr Min’s employment the concerns raised at the Manager’s Meeting should have been put to Mr Min, ideally in writing.  Mr Min should have been invited to respond to those concerns, in writing and/or in person.  If he was invited to respond in person he should have also been informed of his right to have a support person attend the meeting with him.  Ultimately, given the evidence before me, it seems highly unlikely that such a meeting would have ultimately changed the outcome. However, it would have afforded Mr Min his statutory right to procedural fairness which may well have saved Skippers the cost and disruptions caused by these proceedings.

What other matters are relevant?

  1. Section 387(h) of the FW Act requires the FWC to take into account any other matters that the FWC considers relevant to determining whether the dismissal was harsh, unjust or unreasonable.

  1. Mr Min submits that the following matters are relevant to determining whether his dismissal was harsh, unjust or unreasonable:[98]

“- Prior reports of bullying ignored.

- Poor treatment following medical leave.
- Payment issues post-dismissal.”

  1. There is no substantive evidence that Mr Min made any reports of bullying prior to his meeting with Mr Hughes immediately prior to his dismissal.  The disciplinary consequences which flowed from the events following from Mr Min’s return from medical leave were a result of him disobeying a direction in relation to the attribution of the Deal and not a response to his medical leave.  Mr Min’s efforts to resolve his differences with the business in relation to his final termination payment figure do not make his dismissal harsh, unjust or unreasonable.

  1. Mr Min also raised a number of new matters in his written closing submissions notwithstanding having been advised that closing submissions were not the forum to raise new matters.  These matters can be loosely described as allegations of award breaches, sham contracting and general protection breaches.  None of these allegations fall within the scope of these proceedings and their relevance to the harshness, unjustness or unreasonableness of the dismissal not articulated in or identifiable from Mr Min’s closing submissions.

  1. Mr Min is a young man with good employment prospects as is evidenced by him securing alternative employment promptly following his dismissal.

  1. Mr Min’s period of employment with Skippers was relatively brief.  His own conduct led directly to the termination of his employment.

  1. The process undertaken by Skippers to affect the decision to terminate Mr Min’s employment was fundamentally flawed and its inadequacy surprising given the size of the organisation and the number of years the business has been operating.  However valid reasons existed for the termination of Mr Min’s employment.  Arguably at a much earlier point in his employment.  

  1. Mr Min’s unwillingness or inability to acknowledge deficiencies in his performance or conduct and his failure to take heed of any verbal counselling leads me to believe written warnings were unlikely to change the trajectory of his career.

  1. Had Skippers conducted a procedurally fair process that could have been completed without Mr Min’s employment extending any longer than it did.

  1. Based on the evidence at Hearing the outcome of a procedurally fair process would have been the same.  Ultimately Mr Min’s employment would have come to an end.  The relationship of trust and confidence had broken down.  Skippers did not trust Mr Min to behave ethically or perform well. Mr Min no longer wanted to work at the Welshpool Yard and there was no appetite in the business for him to be transferred to another yard.

  1. In all the circumstances of the case I am not satisfied that the deficiencies in procedural fairness make the dismissal unfair.[99]

Conclusion

  1. I have made findings in relation to each matter specified in section 387 of the FW Act as relevant.

  1. I have considered and given due weight to each factor as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.

  1. Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of Mr Min was not harsh, unjust or unreasonable.

  1. Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that Mr Min was unfairly dismissed within the meaning of section 385 of the FW Act. The Application is therefore dismissed.

  1. An Order[100] to this effect will be issued with this Decision.

DEPUTY PRESIDENT

Appearances:

A Min for himself
S Sirrett for the Respondent

Hearing details:

2025
Perth
13 June 2025

Final written submissions:

Applicant, 14 July 2025
Respondent, 22 July 2025


[1] Warrell v Walton (2013) 233 IR 335, 341 [22].

[2] Digital Court Book (DCB) 37-64.

[3] Ibid 65-67.

[4] Ibid 68-79.

[5] Ibid 80-88.

[6] Ibid 89 – 94.

[7] FWC Transcript of Proceedings (Transcript), 13 June 2025, [PN87] (Binet DP).

[8] DCB (n 2) 37, 72.

[9] Ibid 73.

[10] Ibid 73, 78.

[11] DCB (n 2) 82-83, Transcript (n 7) at PN348.

[12] Transcript (n 7) at PN573.

[13] DCB (n 2) 69, 82.

[14] Ibid 82 -83 and Transcript (n 7) at PN411-PN421.

[15] Ibid 83 and Transcript (n 7) at PN363-PN366, PN363-368, PN398.

[16] Transcript (n 7) at PN421-423.

[17] DCB (n 2) 83.

[18] Ibid 69, 90.

[19] Ibid 48. 93 and Transcript (n 7) at PN544-548, PN567-571.

[20] Transcript (n 7) at PN567-571.

[21] DCB (n 2) 90.

[22] Transcript (n 7) at PN185-187.

[23] DCB (n 2) 69.

[24] Transcript (n 7) at PN982.

[25] DCB (n 2) 69.

[26] Ibid 135.

[27] Ibid 135.

[28] Ibid 70.

[29] Ibid 70.

[30] Ibid 70.

[31] Transcript (n 7) at PN965.

[32] Ibid PN528.

[33] DCB (n 2) 90 and Transcript (n 7) at PN543.

[34] Transcript (n 7) at PN528-531.

[35] Ibid 65.

[36] Ibid 65.

[37] Ibid 41, 37.

[38] Ibid 37, 41, 42.

[39] Ibid 65-66.

[40] Ibid 65, 37.

[41] DCB (n 2) 66 and Transcript (n 7) at PN736-762, PN778, PN78.

[42] DCB (n 2) 66.

[43] Ibid 66.

[44] Ibid 66.

[45] Ibid 66.

[46] Ibid 66, 37 and Transcript (n 7) at PN761.

[47] Ibid 37.

[48] Ibid 90 and Transcript (n 7) at PN623.

[49] DCB (n 2) 37.

[50] Ibid 70-71, 91.

[51] DCB (n 2) 91.

[52] Ibid 37, 58, 91.

[53] Ibid 56.

[54] Ibid 64.

[55] Transcript (n 7) at PN657-PN660.

[56] DCB (n 2) 3-4.

[57] DCB (n 2) 36.

[58] Fair Work Act 2009 (Cth) s 383.

[59] DCB (n 2) 23, 36.

[60] Ibid 37.

[61] Ibid 19.

[62] DCB (n 2) 19.

[63] Ibid 23.

[64] DCB (n 2) 24.

[65] (1995) 185 CLR 410, 465 (McHugh and Gummow JJ).

[66] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, 4 [14]; Smith v Moore Paragon Australia Ltd  PR915674 (AIRCFB), (Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[67] DCB (n 2) 20.

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

[69] Ibid.

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

[71] DCB (n 2) 19.

[72] Culpeper v Intercontinental Ship Management Pty Ltd (2004) 134 IR 243.

[73] Edwards v Justice Giudice (1999) 94 FCR 561, 565 [7] (Moore J).

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

[75] (1938) 60 CLR 336 at 361-362.

[76] Transcript (n 7) at PN168.

[77] Ibid PN148-PN151.

[78] Ibid PN175.

[79] Ibid PN362-368, PN373, PN398, PN406, PN418.

[80] Ibid PN173-174.

[81] Ibid PN411-419.

[82] DCB (n 2) 23.

[83] Transcript (n  7) at PN120.

[84] Ibid PN567-571.

[85] Ibid PN186-187.

[86] DCB (n 2) 23.

[87] Transcript (n 7) at PN936-949.

[88] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [73] .

[89] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

[90] Ibid.

[91] Crozier (n 88) 151 [75].

[92] Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14 – 15 [26] quoting Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ).

[93] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ).

[94] DCB (n 2) 19.

[95] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

[96] DCB (n 2) 20.

[97] Jetstar v Meetson-Lemkes (2013) 239 IR 1, 21–22 [68].

[98] DCB (n 2) 20.

[99] Procedural deficiencies may not be sufficient to render a dismissal unfair see for example De Silva v ExxonMobil Chemical Australia Pty Ltd, PR910623 (AIRC, Lacy SDP, 9 January 2000) and Ms Jessica Wei v Echo Group Corporation Pty Ltd - [2025] FWCFB 170.

[100] PR791626

Printed by authority of the Commonwealth Government Printer

<PR788132>

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

14

Statutory Material Cited

0

Warrell v Fair Work Australia [2013] FCA 291
Warrell v Fair Work Australia [2013] FCA 291
Byrne v Australian Airlines Ltd [1995] HCA 24