Mr Charles Smith v Aotai (Australia) Investment and Holding Pty Ltd
[2025] FWC 2414
•29 SEPTEMBER 2025
| [2025] FWC 2414 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Charles Smith
v
Aotai (Australia) Investment And Holding Pty Ltd
(U2025/8772)
| DEPUTY PRESIDENT CROSS | SYDNEY, 29 SEPTEMBER 2025 |
Application for an unfair dismissal remedy
On 20 May 2025, Mr Charles Smith (the Applicant/Mr Smith) lodged an application (the Application) in the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act), against Aotai (Australia) Investment and Holding Pty Ltd (the Respondent) trading as Fine Steel.
The Applicant was employed by the Respondent from 24 April 2023, until he was summarily dismissed on 20 May 2025, for misconduct.
Directions were issued to program the manner in which the Application was to proceed to hearing. In response to those Directions each party filed materials, and the materials relied upon by the parties at the Hearing were:
(a) On 31 July 2025, the Applicant filed an Outline of Submissions and a Statement;
(b) On 8 August 2025, the Respondent filed an Outline of Submissions, with multiple Annexures and Witness Statements, and;
(c) On 15 August 2025, the Applicant filed a Statement in reply.
The Hearing of the Application occurred on 18 August 2025 (the Hearing).
Reasons for Dismissal and Claimed Unfairness
The Application, filed on the day of dismissal, provided detail as to why the Applicant claimed his dismissal was unfair. That outline included the following:
An altercation between to other employees occurred on the 08/05/25. It was of a serious nature and i did my best to assist another employee that was being abused and threatened by removing them for the situation when the aggressor turned on me threatened my life, removed his shirt trying to have a physical fight with me from which i walked away from.
09/05/25 I started my shift as per usual 6am the aggressor also turned up for their shift at 9am, myself and the other employee told the supervisor that we did not feel safe and queried why he was allowed in the workplace, we both left due to feeling unsafe.
At 2:45pm HR sent me a notice to show cause (NTSC) for having left and not completed a leave form & threatening refusal of work deadline to respond to allegations 12pm 14/05/25 8:41pm another NTSC sent for the incident and altercation due to respond 5pm 13/05/25.Sunday 11/05/25 8:54pm Email with leave form and Formal workplace conduct and procedures and would be noted on my employment record.
And:
I went to see my GP and obtained a medical certificate that covers me from 12/05/25 (pm) - 16/05/25 inclusive Reasons: Acute anxiety, stress, insecurity and safety.
And:
16/05/25 12:32pm NTSC serious misconduct email sent advising i have been stood down with pay up until 20/05/25 and i was asked to respond that i have received this email no later than 5pm that day. A text message was sent to HR "noted and i will respond when fit to do so" Again no acknowledgement to me being on sick leave due to their harassment. The deadline for this NTSC was 2pm 20/05/25. Included in this NTSC was witness statements some in Chinese which i feel were not fairly gathered from staff members that may have felt obligated to build this case against me from management the culture of the work place is do as i say no questions asked. Included with this was also the meeting minutes that i have yet to respond too but haven't due to being on sick leave.16/05/25 Text from HR requesting a further medical certificate specifying that i am unable to engage in written communication. 18/05/25 7pm text message from HR reiterating that i am on suspension and not to attend the workplace 19/05/25 12:00pm a work capacity certificate was issued to HR that covers from the 13/05/25 - 23/05/25
[Original text/Emphasis added]
The Application also annexed a Notice to Show Cause (NTSC) dated 12 May 2025, but which referred to two communications of 15 May 2025, and so appeared to be the NTSC dated 16 May 2025. That NTSC relevantly alleged:
1. You frequently and repeatedly used the Persian word “niggar” in the workplace with [Mr Milad]. You have maintained that this was a private conversation between you and [Mr Milad]; however, evidence confirms that you used the word as a greeting each time you encountered one another and that it was spoken loudly enough for surrounding co‑workers to hear (Witness Statement 1).
You stated that you believed [Mr Singh] might have heard you and [Mr Milad]use N-words on prior occasions (Charles Statement), which [Mr Singh] himself has confirmed. Based on [Mr Singh’s] background, and your use of the phrase “Black xxx” in retaliation, the Company has reasonable grounds to believe the term was offensive to him.
Based on the evidence reviewed to date, the frequent use of the “N” word in the workplace— although claimed by you to be non-offensive in your language—appears to have played a significant role in escalating tensions and may have contributed to the 8 May 2025 incident.
In the meeting on 12 May 2025, you acknowledged that you had previously retaliated against [Mr Singh] by using the phrase “Black xxx,” and witness statements attest that you used the words “BlackTrash.” (Witness Statement 2 and Supplementary Verbal Account - Charles)
Despite the seriousness of these matters, during the investigation and in the 12May meeting you focused primarily on the Company’s treatment of [Mr Singh] and on your own interests, attempting to pressure management to alter its decision (Evidence presented in # 3 and # 4). You continued to insist that the “N” word is merely a Persian word and has a similar pronunciation in Mandarin. You failed to acknowledge that using it was inappropriate. (Charles Statement & Supplementary Verbal Account - Charles).
Taken together, these factors demonstrate no comprehension—nor even a remote understanding —of the fundamental malfeasance of your conduct.
2. In both your written statement and during the discussion on 12 May, you asserted that you “de-escalated the situation,” “did not provoke him and instead tried to walk away,” and were “pulling [Mr Milad] away and did not contribute to escalating the conflict. (Charles Statement, Supplementary Verbal Account - Charles)
However, video footage shows you verbally argued with and pushed [Mr Singh], thereby participating in both verbal and physical conflict. (CCTV Camera 2 12:40:37)
The discrepancy between your statements and the objective evidence raises concerns about the accuracy and integrity of your account. Providing a misleading version of events during a formal investigation may be considered inconsistent with your obligations of honesty, transparency, and trust.
3. Between 8 and 12 May 2025, you repeatedly pressured management to impose disciplinary action on the other party and to interfere with the proper process of investigation prior to the completion of the investigation.
On 8May—minutes after the incident—you demanded that [Mr Singh] be “dismantled” (This word quotes the original words) and said you would leave work if he remained on site. (Witness Statement 3 & 4)
On 9 May, before you and [Mr Milad] raised any concerns with management or requested to leave, you had already packed your personal belongings. You subsequently stated that seeing [Mr Singh’s] vehicle made you feel unsafe and justified leaving the site. Despite being clearly informed that separation measures were in place and there was no possibility of direct contact, you again asserted that “[Mr Singh] should be dismantled.” (Witness Statement 3)
On 12 May at 08:00 you approached management and again asked whether [Mr Singh] would be made redundant; during the subsequent meeting you insisted he be directed to take leave, rejected all alternative safety measures, and expressed dissatisfaction with the Company’s position by stating, “I don’t need Fine Steel, but Fine Steel needs me.” (Supplementary Verbal Account - Charles)
You also informed the investigating officer that you would lodge a complaint with SafeWork if [Mr Singh] remained at the workplace the following day. (Statement 5)
These actions appear to constitute a deliberate attempt to influence the Company’s disciplinary process and decision-making, in a manner inconsistent with your obligations as an employee.
4. You refused to sign the acknowledgment form during the 12 May meeting, despite HR explaining that the form served only as a record of delivery and did not require you to agree with the contents. This refusal may reflect a lack of procedural cooperation.
You failed to respond to the Meeting Summary issued following the 12 May discussion. In the interest of procedural fairness and to avoid unnecessary delay—particularly as your verbal statement raised allegations concerning another involved employee—the Company gave you 48 hours to review and respond.
On 14 May, a person identifying themselves as your partner replied from your email account requesting an extension. The Company responded promptly, requesting updated medical certification confirming that you were unfit to engage in written communication, even from home. Later that day (at 4:30 p.m.), you were reminded via email that you could either formally nominate a representative or provide medical evidence. As of the time of this notice, no authorisation, updated certificate, or formal response has been received.
Your repeated lack of formal engagement and failure to follow clear instructions has caused delays in the investigation process and limited the Company’s ability to reach a timely and balanced outcome.
A Notice of Termination was issued on 20 May 2025 (the Termination Letter). The Notice relevantly relied on six limbs of misconduct which were as follows:
Your employment with FINE STEEL is therefore terminated effective immediately on the following grounds:
• Repeated use of racially inappropriate and offensive language in the workplace, including the “N” word and retaliatory terms such as “Black xxx”, in a manner witnessed by others;
• Active physical aggression and escalation during the 8 May 2025 workplace conflict, as confirmed by CCTV footage, contradicting your written account;
• Attempts to pressure management into prematurely disciplining another employee, including verbal threats to resign or escalate to SafeWork;
• Refusal to cooperate with standard investigative procedures, including failure to respond to notices, refusal to sign administrative documents, and failure to nominate a representative or provide valid medical certification;
• Misrepresentation and omission of material facts during the investigation, including denying or downplaying your physical involvement despite video evidence;
• Lack of accountability or insight into the seriousness and impact of your conduct on workplace safety and culture
The Respondent filed its Form F3 on 28 May 2025 with attachments including the employment contract, handbook, a complaint by Mr Singh, employee statements, and references to CCTV footage.
At Hearing the parties agreed to proceed by way of a determinative-conference, with reliance on filed statements and documentary exhibits.
Factual Background
The Applicant, Mr Charles Smith, commenced on 24 April 2023 as a Machine Fitter at the Respondent’s Condell Park site.
The events central to the dismissal occurred on 8 May 2025, and concern a heated confrontation between Mr Smith and two other employees, Mr Milad and Mr Singh. The Respondent’s position is that the conflict was preceded and exacerbated by racially offensive language used at work. The Applicant denies that any language he used was offensive or unacceptable in context.
The 8 May 2025 incident and CCTV
I viewed the CCTV extracts identified. I have also read a “Summary of Incident” prepared by the Respondent that I find accurately describes what can be seen in the CCTV footage. That summary provides:
SUMMARY OF INCIDENT
On 8 May 2025 at approximately 12:39 p.m., Employee Milad went to the workshop office to get water (CCTV Camera 1-12:39:10). While inside, he called out the word “Negah” toward Employee Charles, who was outside. Employee [Mr Singh], positioned nearby, overheard the word and asked [Mr Milad] to stop using it (CCTV Camera 1-12:39:45). Milad responded that he was speaking to Charles and that the remark was not directed at [Mr Singh] (Incident Statement - [Mr Milad]).
[Mr Singh] repeated his request, stating that he did not want to hear that word used in his presence. [Mr Milad] replied that it was a private conversation between him and Charles and that others should not interfere (Incident Statement - [Mr Milad]). He then attempted to disengage and leave the discussion (Incident Statement - [Mr Milad]). As he exited the office, he gestured to Charles to come over (CCTV Camera 2-12:40:15). A verbal disagreement subsequently developed between the three employees, during which the tone of the conversation escalated.
When Charles joined the discussion inside the doorway, he pushed [Mr Singh] once (CCTV Camera 2-12:40:37). [Mr Milad] moved between them (CCTV Camera 2-12:40:40), and after a brief exchange of words, another push of [Mr Singh] appears (CCTV Camera 2-12:40:47).
The group briefly disbanded and then moved back to the driveway area, where Charlie from CGE Transport intervened. Charlie physically blocked Charles (CCTV Camera 3-12:41:55) and then removed [Mr Milad] from the situation, guiding him toward the doorway in an effort to de-escalate the dispute (CCTV Camera 3-12:42:07). While this occurred, a separate verbal exchange took place between [Mr Singh] and Charles (CCTV Camera 3-12:42:05~12:42:38). During this exchange, [Mr Singh] used the terms “Red Neck”, “white cunt” and “Hick”, which were perceived by others present as racially offensive (Incident Statement/Report - Charles and Witness).
[Mr Singh] then walked a short distance away but then continued to face the others (CCTV Camera 3-12:42:42). As [Mr Milad] and Charlie returned to the area and attempted to lead Charles away (CCTV Camera 3-12:42:53), [Mr Singh] suddenly threw his hat to the ground (CCTV Camera 3-12:42:56), removed his shirt (CCTV Camera 3-12:43:05), and shouted “Kill you” in the direction of Charles (Incident Statement/Report - Charles and Witness). Witnesses observed behaviour that they interpreted as an attempted physical escalation.
The situation was contained by the intervention of other witnesses, who physically prevented further confrontation.
The Applicant accepted that he “prodded” or physically contacted Mr Singh at one point,[1] though he maintained this followed Mr Singh poking him in the chest and using insulting terms.
The footage clearly shows Mr Smith moving toward Mr Singh, remaining in close proximity and poking Mr Singh. The CCTV supports a finding that Mr Smith engaged in conduct which, at minimum, escalated a heated onsite dispute.
Language and prior interactions
The 16 May NTSC particularised allegations that the Applicant had (a) used a term he said was a Persian greeting which, phonetically, other employees understood as the racial “N-word”, and (b) retaliated on another occasion with “Black c**t”, which the Applicant did not persuasively deny in the 12 May meeting. The Applicant’s position was that any such words were private, culturally contextual, or misheard.
Investigation, stand-down and show-cause
On 12 and 16 May, the Respondent issued show-cause notices setting out allegations and inviting a written response by 20 May 2025, while placing the Applicant on paid stand-down to separate the employees and progress the investigation. Reminders were issued. A clerical error in one reminder misstated the response date as 21 May. That error was later corrected the same day to the original deadline (2:00 pm on 20 May).
Relevantly on 8 May at 1.53PM the Respondent sent the following to the Applicant:
Dear Charles,
We wish to inform you that, following the incident on 8 May 2025 in the workshop where you and [Mr Singh] were involved in a conflict—including verbal threats and an attempted physical confrontation—the Company has decided to initiate a formal internal investigation.
The objectives of this investigation are to:
1. Obtain written statements from all involved parties and witnesses;
2. Verify all relevant facts and evidence;
3. Ensure procedural fairness and maintain a safe and respectful workplace.Please comply with the following immediately:
· Complete and submit the “Incident Statement Form” to the Elyn (Admin Office) or [email protected] by 8:00 AM Tomorrow (9 May 2025);
· As you are currently unable to share the same workspace, [Mr Singh] will be temporarily relocated from workshop office to the ground-floor office area until the investigation is concluded;
· If you require access to CCTV footage or other evidence, please contact workshop supervisor to arrange a viewing;
· You are entitled to have a colleague accompany you during any meetings;
· All information collected will be treated strictly confidentially and used solely for the purposes of this investigation and any subsequent actions. If you have any questions regarding the investigation process or scheduling, please contact the HR within two business days of receiving this letter.
Thank you for your cooperation.
Mr Smith failed to respond. On 9 May at 8.33AM the Respondent sent a follow up email which relevantly stated:
Dear Charles，
I hope you’re doing well.
As part of our ongoing investigation into the workshop incident on 8 May 2025, we still require your completed Incident Statement Form. Your firsthand account is essential to ensure we gather accurate information, evaluate all perspectives fairly, and maintain a safe workplace for everyone.
Please submit the completed form to the HR Department by 5:00 PM Today. If you have any questions about the form or need assistance, feel free to reach out to Elyn and Ouyang directly or bring a colleague with you.
Thank you for your cooperation and prompt attention to this matter. Your participation helps us resolve the situation thoroughly and fairly.
The Applicant responded at 10.54AM on that same day. His response email relevantly stated:
Dear Linnea,
Please see the attached report.
I spoke with Richard yesterday, and he informed me that Yan would be taking control and addressing the matter. During our conversation, I expressed my safety concerns regarding [Mr Singh’s] continued employment.
This morning, I arrived at work at 6 a.m. as per my usual shift. However, by 9 a.m., I noticed that [Mr Singh] had not been stood down and was still employed. As a result, both Millad and I did not feel safe and, regrettably, had to leave the workplace.
We later spoke with Yan, who agreed that we would be paid for today. However, this situation should not have occurred and could have been prevented. I believe that a clear duty of care regarding workplace health and safety needs to be demonstrated.
I would appreciate your prompt attention to this matter
On 12 May 2025, both Mr Smith and Mr Singh signed workplace separation requirements (no co-location during investigation). There was also a meeting on 12 May 2025.
On 13 May 2025, the Respondent’s Human Resources circulated a 12 May 2025 meeting summary and asked for a written response by 5:00 pm on 15 May 2025. Mr Smith’s “Supplementary Verbal Account — Charles” is recorded and signed around this time. That Account was as follows:
Supplementary Verbal Account Charles (12 May 2025 meeting)
At a meeting on 12 May 2025 attended by Charles Brian Smith, Chenmin Ji (HR Manager), Jinglin Xi (HR Admin Team Leader), and Ouyang Lan (Production Manager), Charles gave the following verbal information. Charles did not provide a written statement. The points below were contemporaneously recorded by the three management attendees. Charles was offered the opportunity to review and respond to the summary after the meeting.
Charles stated that both [Mr Singh] and he had used the terms such as "white c**t" and "black xxx" in verbal altercations over a period of months, possibly even longer. He acknowledged his own use of such terms, but attributed it to retaliating against comments he perceived as discriminatory. However, during the meeting, Charles focused primarily on criticising Ashneel's conduct and did not provide any reflection or comment on the appropriateness of his own language or behaviour.
Use of the Persian word Charles stated that only he and [Mr Milad] used a Persian word pronounced "niggar". According to him, no other employees were familiar with the term. Its use, he said, was confined to private conversations with [Mr Milad] in the workshop; he had not used it in the office or intentionally in Ashneel's presence. He believed [Mr Singh] might nevertheless have become aware of the word over time. Charles said he viewed the term as non-offensive to [Mr Singh] because [Mr Singh] is of Indian background, and noted that he is studying Polish and did not see the pronunciation as problematic. He also cited similar pronunciations in other languages such as Mandarin. Charles did not acknowledge that the use of the term may be perceived as offensive by others.
Regarding the incident on 8 May, Charles stated that he did not hear what [Mr Milad] called out near the office door. He became involved only after hearing raised voices and seeing [Mr Milad] gesture toward him. He claimed he intervened by pulling [Mr Milad] away and did not contribute to escalating the conflict.
View of management actions At the start of the meeting Charles expressed dissatisfaction with the Company's decisions, then saying: "I don't need Fine Steel, but Fine Steel needs me." When asked to clarify this comment, Charles reaffirmed his position.
Perceived Safety Concerns Despite Separation Measures
Charles stated that although the company had implemented physical separation measures including assigning [Mr Singh] to a supervised, isolated work area and a separate restroom-he still felt unsafe as long as [Mr Singh] remained employed. He expressed that even if [Mr Singh] was working in a separate area, it did not alleviate his concerns.
Management reaffirmed during the meeting that all reasonable steps had been taken to address his concerns regarding safety and workplace conduct. We also advised Charles that if he continued to feel uncomfortable, he had the right to request personal or annual leave. However, he responded that he believed it should be [Mr Singh] who takes annual leave, not him.
He further added that his concerns stemmed from the fact that he had previously made efforts to avoid [Mr Singh], yet those efforts did not prevent the incident on 8 May from occurring.
During the meeting, Charles was asked to sign the acknowledgment forms for the Notice and Formal Reminder. However, he refused to sign any documents, despite our explanation that signing does not imply agreement. He maintained that he would not sign anything.
At the conclusion of the 12 May 2025 meeting HR reiterated that, to ensure procedural fairness, Charles was expected to provide an additional written statement addressing the points he had raised verbally, including any specific details, examples, or incidents he considered relevant.
Signature
This summary reflects the verbal account provided by Charles during the meeting held on 12 May 2025. During the meeting, Charles stated that he would not sign any documents. As such, no signature was obtained. A copy of this summary was sent to him via email for review and response. The Company reserves the right to proceed based on this record of discussion should no written submission be received by 5:00 p.m. on 15 May 2025.
On 14 May 2025, the Applicant sought an extension in the time for the provision of his response, citing medical issues. HR declined the extension unless a medical certificate states Mr Smith is unfit to engage in written communication. On 15 May 2025, HR acknowledged a certificate covering 12–16 May and indicated the 5:00 pm 15 May 2025, deadline need not be met, while also noting no further action on a separate “left work/leave form” notice.
Mr Smith provided medical certificates covering certain dates and requested an extension. HR sought an updated certificate confirming he was unfit to correspond from home. The Applicant did not provide such a certificate nor nominate a representative in writing prior to the deadline.
On 16 May 2025, the employer withdrew the earlier notices and issued a second NTSC alleging serious misconduct linked to the 8 May incident. Mr Smith was stood down on pay and required to respond by 2:00 pm on 20 May 2025.
On 18 May Mr Smith forwarded a document said to be his response to a 9 May NTSC that “remained in [his] outbox”. HR acknowledged receipt but confirmed the 9 May NTSC was superseded by the 16 May NTSC, which still required a 20 May 2025 written response. A stand-down reminder was also sent on the evening of 18 May 2025.
On 20 May 2025, having not received a response meeting the parameters in the 16 May NTSC (or a medical certificate expressly addressing capacity to respond in writing), the Respondent terminated the Applicant summarily, relying on the six grounds outlined in the Termination Letter.
During the Hearing the following exchange occurred regarding the Respondents reliance on the six matters:
THE DEPUTY PRESIDENT: Well, just at page 13 where you've listed in the notice of termination the reasons for summary dismissal I am putting to you that I'm having difficulty understanding the third point, being the intensive pressure to management prematurely. What seems to be a refusal cooperated standard investigative procedures in the timeframes and a misrepresentation and omission. I think those three out of the six points are lacking in substance.
Now tell me what you want to say in relation to that?
MR LAN: Can we get about two minute breakdown? Because we have to find our – some other documents that we're trying to respond to this dot point. Is that all right?
THE DEPUTY PRESIDENT: This is a letter properly responded to the applicant dated 20 May 2025 that lists the six reasons for summary dismissal, which are replicated at page 49 which is the Form F3 in more summary but the same points. There's no surprise to the respondent that there are six reasons for summary dismissal. And I am just suggesting to you that three of your six seem to be pretty weak in foundation or incorrect and I'm giving you an opportunity to say what you wish to say now.[2]
…
MR LAN: Okay. Thanks for the time, Mr Deputy – well, I think clear that the reasons which are in our statement refusing to cooperate and in this presentation of material of facts was made based on facts with the employee contract and they're provided. So down clause 24.1 you will see the subclause 24.1(e) this is when he refused to comply with any reasonable instructions or any failure to comply with obligations.
THE DEPUTY PRESIDENT: Are you referring to a particular page of the disciplinary - -
MR LAN: Yes. That would be our solution on the page – page 125.
THE DEPUTY PRESIDENT: So your clause 24?
MR LAN: Yes, 24 – 24.1 subparagraph (e).
THE DEPUTY PRESIDENT: Yes. How does that relate to the three bullet points I was referring to? Attempts to pressure management into prematurely disciplining another employee. Refusal to cooperate with standard investigative procedures and there was failure to respond to notices and failure to provide a medical certificate. How does that fall within 24(1)(e) and also the next one? Misrepresentation on issue of material facts? Misrepresentation – you might not have believed what he was saying to you, and based on the video, possibly there's some substance in relation to the incident. But misrepresentation is a fairly high hurdle. That's a conscious misleading.
MR LAN: So those wordings we put in original termination with our six points that two of them we probably won't be afraid in saying it's – now the wordings might not have to be (indistinct) out of the original contract but the other three terms that's where we have a strong (indistinct) also be included and the outline of submissions today. So we see the points when they – they are five points including the use of racial improper language, escalation of conflict and dishonesty during the investigation. So those are the strongest points that we will have a solid ground on these – the employment contract and all that.
THE DEPUTY PRESIDENT: But if three of these six grounds fall away, do you still say it's summary dismissal? So that's a fairly direct question but - - -
MR LAN: So if there was three of them and plus throughout the investigation if – what if we put it this way. When we see all the refusal to cooperate and this presentation we considering it's more like a lack of acknowledgement to the first three grounds on – that we have stood on. But he doesn't regret about it – he doesn't treat it the way he used that improper language. He could still be using them but it's only that about this we see his refusal to it.
You can see from the submission witness and we've provided or in the 12 May meeting he's still denying that saying it was never inappropriate. He's also referring to different context and other languages to cover the way he's been using the words.
So the three base grounds plus the lack of acknowledgement I will say they were strong enough to make – the management to make a decision about dismissal.
THE DEPUTY PRESIDENT: Okay. Thank you. Anything further?[3]
Applicants Submission
The Applicant submitted there was no valid reason to dismiss him within the meaning of s 387(a) of the Act. He says the Respondent’s case isolates moments in the CCTV while ignoring the context of provocation, mishearing of language, and his efforts to separate and disengage.
As to the 8 May 2025 incident, the Applicant contends that:
(a) he was poked first and verbally abused by Mr Singh;
(b) any contact visible on Camera 2 was defensive or incidental, not aggressive; and
(c) he sought to relocate himself and Mr Milad away from Mr Singh once the exchange escalated.
On the language allegations, the Applicant maintains the term overheard by others was a Persian/Farsi greeting/colloquialism (“Negah”/variant) used privately with Mr Milad and not the racial epithet alleged; in any event, he denies using “Black c**t” and says any such words were said by Mr Singh toward him.
On process, the Applicant submits the Respondent failed to provide procedural fairness:
(a) short and shifting response timeframes;
(b) withdrawal of the 9 May notice and its replacement on 16 May without adequate particulars;
(c) reliance on a medical certificate stating he was unfit to correspond from home as a precondition to an extension; and
(d) a misdated reminder on 20 May (stating “21 May”) which, he says, created real confusion on the day of termination.
The Applicant says the Respondent unreasonably refused or discouraged the use of a support person at the 12 May 2025 discussion, and otherwise predetermined the outcome by separating Mr Singh differently and by “pressuring” the Applicant to return while Mr Singh was on site.
As to consistency and proportionality, the Applicant submits other participants (Mr Singh, and possibly Mr Milad) were not disciplined to the same extent despite their conduct (hat throwing, shirt removal, threats). He contends dismissal was disproportionate to his conduct and that options short of dismissal (final warning, targeted training, mediation or redeployment) were reasonably available.
As to relief, the Applicant seeks reinstatement with continuity and lost pay, or alternatively, compensation and a finding of procedural unfairness to be reflected in the remedy.
Respondents Submission
The Respondent submits there was a valid reason to dismiss grounded in misconduct affecting safety and workplace standards, namely:
(a) physical contact and escalation during the 8 May 2025 incident (CCTV-confirmed);
(b) use of racially offensive language (repeated and not context-neutral);
(c) attempts to influence or pressure management about disciplinary outcomes; and
(d) non-cooperation with the investigation by failing to provide a timely written response or a medical certificate addressing capacity to write.
On the CCTV, the Respondent says Camera 2 shows the Applicant moving into Mr Singh’s space and prodding/pushing; Camera 3 shows the incident re-forming despite opportunities to disengage. Whether or not Mr Singh also behaved poorly, the Applicant’s conduct was not de-escalatory, created a foreseeable safety risk in a workshop environment, and breached policy.
On language, the Respondent points to witness accounts and the 16 May 2025 NTSC identifying the perceived “N-word” and a subsequent reference to “Black c**t” by the Applicant. It says the effect on colleagues and culture is assessed objectively and does not turn on the Applicant’s asserted intent or private context.
On process, the Respondent submits it afforded procedural fairness. The Applicant was notified of the allegations with particulars and attachments, given a real opportunity to respond (including nominating a representative), and stood down on pay to reduce risk and avoid contact. The misdated 20 May 2025 reminder was an obvious clerical slip promptly corrected the same day and caused no prejudice because the original deadline (2:00 pm, 20 May) had been repeatedly stated.
The Respondent denies any refusal of a support person. It says the 12 May 2025 meeting was informational and that all subsequent correspondence invited a representative if the Applicant wished to nominate one.
As to consistency, the Respondent submits it considered the conduct of all participants. Mr Singh was also subject to requirements and consequences appropriate to his conduct, but the Applicant’s combination of conduct (contact, language, pressure on the process, non-cooperation) warranted summary dismissal.
On the medical extension, the Respondent submits it properly required objective medical support that the Applicant was unfit to write/authorize a representative, which was not provided before the deadline. It notes the Applicant continued communicating about other matters during the same period.
The Respondent contends that even if any procedural blemish is found, the overall s 387 evaluation remains that the dismissal was not harsh, unjust or unreasonable, given the seriousness of the conduct and the adequacy of the investigation steps taken.
Consideration
There were no jurisdictional objections to the Applicant’s application being determined by the Commission. Specifically, I am satisfied that:
(a) the Applicant was dismissed at the initiative of the employer (ss 385(a) 386(1)(a));
(b) his unfair dismissal application was lodged within the 21 day statutory time limitation found at s 394(2) of the Act;
(c) the Applicant is a person protected from unfair dismissal in that:
(i)he had completed the minimum employment period set out in ss 382 and 383 of the Act; and
(ii)his salary was below the high income threshold;
(d) his dismissal was not a case of genuine redundancy (s.385(d)); and
(e) his dismissal was not a case involving the Small Business Fair Dismissal Code (s.385(c)).
The only outstanding issue is whether the Applicant’s dismissal was ‘harsh, unjust or unreasonable,’ and therefore an unfair dismissal. To this end, I must direct attention to s.387 of the Act, dealing with the matters to be taken into account by the Commission in determining whether the dismissal was unfair. It is trite to observe that each of the matters must be considered and a finding made on each of them, including whether they are relevant or not.
Was the Dismissal Harsh, Unjust or Unreasonable?
Section 387 of the Act identifies the matters that the Commission must take into account in deciding whether a dismissal was “harsh, unjust or unreasonable:”
(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.
Section 387(a) - whether there was a valid reason for the applicant’s dismissal
In Rode v Burwood Mitsubishi,[4] a Full Bench of the then Australian Industrial Relations Commission discussed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 and referring to Selvachandran v Peteron Plastics Pty Ltd (Selvachandran).[5] The Full Bench found:
[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).
[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.
I find the Respondent had a valid reason to dismiss, comprised of the following cumulative aspects:
a. The on-site altercation/escalation. The CCTV segment I viewed showed Mr Smith moving toward Mr Singh in close proximity, engaging in verbal exchange and brief contact. Whatever preceding finger-poking occurred, Mr Smith’s response did not materially de-escalate the situation, and in fact, it contributed to a live safety risk in a production environment. I specifically reject the Applicant’s characterisation of what is seen in the CCTV footage;
b. The racially offensive language. The 16 May 2025 NTSC asserted, correctly, repeated use of a word that other employees reasonably perceived as the “N-word”, and a retaliatory “Black c**t”. The Applicant’s own meeting acknowledgments and witness accounts in the record support that at least one retaliatory phrase was used and that co-workers heard the other term in general circulation with him and Mr Milad. In a workplace, the reasonable effect on colleagues and safety/culture is significant and attempting to recast it as “banter” or linguistic misunderstanding does not neutralise the impact.
These matters, viewed together, constitute a valid reason, they go to conduct and to safety and welfare. It is not necessary for an employer to show criminality or that the Applicant “started” the fight. It is enough that the conduct, objectively assessed on the record (including CCTV), was incompatible with safe work and standards.
I have considered the Applicant’s explanation that he was reacting to provocation and feared for safety. I accept there was tension, however I do not accept that the Applicant’s overall response was proportionate or de-escalatory. On balance I am satisfied the Respondent’s reasons were “sound, defensible and well-founded.”
While I note that I have found valid reasons regarding the altercation and the offensive language, I note that the Termination Letter also specified the following additional reasons for dismissal:
• Attempts to pressure management into prematurely disciplining another employee, including verbal threats to resign or escalate to SafeWork;
• Refusal to cooperate with standard investigative procedures, including failure to respond to notices, refusal to sign administrative documents, and failure to nominate a representative or provide valid medical certification;
• Misrepresentation and omission of material facts during the investigation, including denying or downplaying your physical involvement despite video evidence;
• Lack of accountability or insight into the seriousness and impact of your conduct on workplace safety and culture
While some of those reasons have substance, particularly the downplaying of the altercation, others do not, most notably the assertion that it was improper for the Applicant to pressure management by threatening to resign. I nonetheless do not consider any additional reason need to be found to establish the existence of valid reasons.
Procedural fairness- s.387(b)-(e)
Sub-sections (b) - (e) of s 387 of the Act may be broadly characterised as issues relevant to whether a dismissed employee was afforded procedural fairness. It is correct to observe that, even if there was a valid reason for an employee’s dismissal, the dismissal may still be held to be unfair if the employee was not afforded procedural fairness. This has been a long held industrial principle adopted and applied by this Commission, its predecessors, and Courts.
In Wadey v Y.M.C.A. Canberra,[6] Moore J made clear that an employer cannot merely pay lip service to giving an employee an opportunity to respond to allegations concerning the employee’s conduct. His Honour said:
‘In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of allegations concerning the employee's conduct so as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.’
Nevertheless, procedural fairness steps should be applied in a commonsense and practical way. In Gibson v Bosmac Pty Ltd,[7] Wilcox CJ said at 7:
‘Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, commonsense way so as to ensure that the affected employee is treated fairly. 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 of the section.’
The Applicant was notified in explicit terms by the 16 May 2025 NTSC of the allegations to be answered (with attachments including witness statements and reference to CCTV), and by the termination letter of 20 May which identified the ultimate reasons relied upon.
The mis-stated reminder listing 21 May 2025 as the due date was corrected the same day. While not ideal, the correction maintained the original 20 May 2:00 pm deadline, which had already been set out clearly. I treat this as a minor administrative error without substantive prejudice.
The Applicant was invited to respond in writing by 20 May 2025, to nominate a representative, or to provide a medical certificate expressly stating he was unfit even to engage in written communication from home. He did not lodge such a certificate nor authorise a representative by the deadline. The medical certificate provided simply stated the Applicant had “no current capacity for any work”.
Given those options, I am satisfied there was a real opportunity to respond before the decision, applied in a common-sense way, and that the Applicant was not denied the opportunity to have a support person.
Size/Human Resource Specialists ss 387(f), (g)
The Respondent is a medium-sized enterprise with HR capacity. It documented the process, provided reasons, and afforded an opportunity to respond.
(h) Any Other Matters Relevant
It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h).
The Applicant submitted that the other relevant matters in establishing that the Applicant’s dismissal was unfair were:
(a) The proportionality of a summary dismissal in the circumstances and that the dismissal was harsh because summary dismissal was a disproportionate response;[8] and
(b) The long and satisfactory work performance or history of the Applicant. He had not received any formal warnings during his employment.
I do not consider that in the circumstances of this matter the summary dismissal of the Applicant could be seen as a disproportionate response. The conduct of the Applicant in the Incident constituted a material breach of the terms and conditions of his employment, and the Respondent's policies and procedures.
The Respondent’s actions cannot be judged as other than a reasonable and just response to that conduct and were proportionate.[9]
While the Applicant had 2 years of blemish-free employment, I would not consider that period could be reasonably described as a long period of employment.
I do not consider I can apply any weight to that factor in light of the gravity of the Applicant’s conduct in the Incident.
Conclusion
Having considered each of the matters specified in s.387, I find that the Applicant’s dismissal was not harsh, unjust or unreasonable. The Application is dismissed.
DEPUTY PRESIDENT
Appearances:
For the Applicant: Ms Graf.
For the Respondent: Mr Lan.
Hearing details:
Sydney.
19 August 2025.
[1] Transcript PN56 to 68.
[2] Transcript 384 – 387.
[3] Transcript 395 – 405.
[4] Print R4471, at [18] and [19].
[5] (1995) 62 IR 371.
[6] [1996] IRCA 568.
[7] (1995) 60 IR 1.
[8] Potter v WorkCover Corporation PR948009 (Ross VP, Williams SDP, Foggo C, 15 June 2004) at [55].
[9] DP World Sydney Limited v Lambey (VP Watson, DP Hamilton and Simpson C2012/3296) at [26].
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