Mr Gabriel Walker v Plumbtrax Pty Ltd - [2025] FWC 872

[2025] FWC 872

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Gabriel Walker
v

Plumbtrax Pty Ltd

(U2025/159)

COMMISSIONER REDFORD

MELBOURNE, 2 APRIL 2025

Application for an unfair dismissal remedy – jurisdictional objection raised –– whether dismissal consistent with Small Business Fair Dismissal Code - jurisdictional objection dismissed – dismissal found to be unfair – reinstatement not appropriate - compensation ordered.

Background

On 5 January 2025 Mr Gabriel Walker filed an application pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act) seeking a remedy in relation to unfair dismissal with respect to his former employer, Plumbtrax Pty Ltd (Plumbtrax).
The application was the subject of a hearing conducted in the Commission at Melbourne on 20 March 2025. Mr Walker was self-represented at the hearing. I granted Plumbtrax permission to be represented by a lawyer or a paid agent pursuant to s 596 of the Act, because I considered it would enable the matter to be dealt with more efficiently. Mr Field appeared for Plumbtrax.
Mr Walker gave evidence at the hearing, as did Mr Jeff Laurie, Plumbtrax’ Managing Director.

Ordering a remedy in relation to unfair dismissal.

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

a.the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
b.the person has been unfairly dismissed.

Section 396 requires that the Commission decide several matters relating to an application for an unfair dismissal remedy before considering the merits of the application. Those matters are:

a.whether the application was made within the period required in s 394(2);
b.whether the person was protected from unfair dismissal;
c.whether the dismissal was consistent with the Small Business Fair Dismissal Code (the Code);
d.whether the dismissal was a case of genuine redundancy.

A question arises in this matter as to whether the dismissal was consistent with the Code. This is dealt with below.
It was not argued, nor was it the case that Mr Walker’s dismissal was a case of genuine redundancy, and his application was made within the period required in s 394(2) of the Act.
Section 382 of the 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;
iii.the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

At the time of his dismissal, Mr Walker had been employed for just over three years (more than the minimum employment period) and his annual rate of earnings was less than the high income threshold, which at that time was $175,000.00 per annum. I find that Mr Walker was a person protected by unfair dismissal at the time he was dismissed.

The circumstances of the dismissal

The termination of Mr Walker’s employment

Mr Walker commenced working for Plumbtrax on 7 September 2021 as a qualified and registered plumber.
I was not told by either party of any problem relating to Mr Walker’s performance throughout his employment.
Mr Walker’s employment was terminated on 17 December 2024. Earlier that day he had been asked by Mr Laurie to attend a meeting at Plumbtrax’ headquarters. Mr Laurie said in his evidence that he told Mr Walker to bring a support person to that meeting. Mr Walker said in his evidence that Mr Laurie did not say this.
Mr Walker attended the meeting on 17 December 2024 at about 3:30PM in an office at Plumbtrax’ premises. The only people present at the meeting were Mr Walker and Mr Laurie.
Mr Laurie said the meeting was heated. Save for a couple of statements alleged to have been made, neither Mr Laurie nor Mr Walker gave evidence with any precision as to exactly what was said in the meeting.
It does appear clear to me that Mr Laurie gave Mr Walker a letter in the meeting, advising him of the termination of his employment based on several allegations in relation to his conduct, said to amount to serious misconduct. A copy of this letter (the termination letter) was provided in evidence. I consider the termination letter was given to Mr Walker by Mr Laurie early in the meeting.
Mr Laurie said he took Mr Walker through the allegations but was not able to say exactly what he said or what Mr Walker said in response (other than one comment, referred to below). Mr Walker said he read the letter and saw the allegations in it. Mr Walker said that when he tried to explain and justify himself Mr Laurie said, “he didn’t want to hear it and threatened me with legal action”. When questioned repeatedly as what he said during the meeting, Mr Laurie said there “wasn’t a lot said” during the meeting.
Mr Laurie said Mr Walker did not respond to the allegations but rather said, in an aggressive way, “you have been kissed on the dick and you have been spoon fed from your father”. Mr Walker denies saying this.
It is not disputed that the termination of Mr Walker’s employment was summary, without notice, and based on an allegation of serious misconduct. The termination letter says “[w]e write this letter to you to notify you of immediate Termination of your Employment with Plumbtrax Pty Ltd.” As this letter was given to Mr Walker early in the termination meeting, having been drafted beforehand, it appears clear the decision to terminate his employment over these matters had already been made.
On this basis, and taking into account Mr Laurie’s evidence there wasn’t a lot said in the meeting, I consider that this meeting was not one in which the allegations made against Mr Walker were put to him in a manner inviting his response, nor was he able to provide a proper response to them, nor was any response given properly considered.
The rationale for Mr Laurie’s decision to dismiss Mr Walker was that he had created and registered his own business and had begun taking steps to promote that business using Plumbtrax resources without authorisation and during time when he was supposed to be working for Plumbtrax. It appeared to Mr Laurie that Mr Walker’s business was similar to Plumbtrax, would compete with Plumbtrax and Mr Laurie thought Mr Walker had an intention to solicit Plumbtrax customers and suppliers.
Mr Laurie’s view was that this conduct was not consistent with Mr Walker’s contract of employment. The “letter of termination” says the “following serious misconduct breaches have been brought to our attention that breech [sic] your Employment Contract as per the below”. The letter references several clauses of Mr Walker’s Employment Contract (which I refer to below).
The rationale for Mr Laurie’s decision to dismiss Mr Walker is based on several assertions made with respect to Mr Walker’s conduct. I will deal with each of these in turn.

That Mr Walker registered a business called Walker Environmental Services.

Mr Walker accepted in his evidence that on 25 October 2024 he registered a business called Walker Environmental Services Pty Ltd, ACN 681 842 035 (WES).
Mr Walker said he told Mr Laurie in early October 2024 that he intended to establish his own business at some point. Mr Laurie denied this[1]. He said instead that on 26 November 2024 Mr Walker told him he was planning to resign from Plumbtrax in early 2025, seeming to suggest by implication he did not know the reason. On 26 November 2024 Mr Laurie sent an email to Mr Walker referring to a “request in October 2024 to depart from Plumbtrax in early 2025 [my emphasis]”, requesting more specific dates. Mr Walker responded saying he could not confirm departure dates as yet, and that a rough time frame was “between late Jan – late March”.
It is difficult to resolve the difference in the evidence as to whether Mr Walker told Mr Laurie of his plans to start his own business, or not. On the one hand, Mr Walker’s evidence was clear and specific– that he told Mr Laurie of his plans to start his own business in October 2024. This timeframe (October), but not the detail, is consistent with Mr Laurie’s own email. On the other hand, Mr Laurie’s reaction to discovering materials suggesting Mr Walker had started his own business – which was one of anger and resulted in a decision to summarily dismiss Mr Walker – is somewhat incongruous with him having already known of the possibility, if he did (which he denied).
If, Mr Walker did tell Mr Laurie in October (or even at some other time) he was planning to start his own business, I consider it unlikely he told Mr Laurie his business was going to offer the same services as Plumbtrax, and as such, be in competition with it. I also doubt he told him he might start promoting the business before leaving Plumbtrax, which Mr Laurie believes was conduct he did indeed engage in (which Mr Walker denies). These matters inflamed Mr Laurie and caused the dismissal. I therefore consider not a great deal turns on whether Mr Walker told Mr Laurie of his plans to start his own business in October 2024, or not, and consider it unnecessary to determine the inconsistency in the evidence of this matter.

That the nature of the business was similar to that of Plumbtrax

Mr Laurie took the view that the nature of the WES business was similar to the Plumbtrax business. At some point he discovered a website which appeared to be associated with WES, which advertised plumbing services including a range of services that Plumbtrax provides. Mr Walker agreed in his evidence that it was envisaged his business would provide similar services to a number that Plumbtrax supplies.
It appears clear from the evidence that a website was indeed created by Mr Walker for use associated with his new business. Several screen shots of the website were tendered in evidence, one showing Mr Walker’s mobile phone number. Mr Walker accepted in his evidence that he did establish a website for WES; it is his website; and it does bear his mobile phone number. As discussed in detail below, Mr Walker denies the website went live before the end of his employment.
I consider that the WES business was to be one providing services similar to those provided by Plumbtrax.

That Mr Walker had taken steps to begin promoting his business while in the employ of Plumbtrax, including during time he was supposed to be working for Plumbtrax

The assertion that Mr Walker had taken steps to begin promoting his business while in the employ of Plumbtrax, including during time he was supposed to be working for Plumbtrax, appears to be based on two propositions – one that Mr Walker established an Instagram account for WES, and two, that he established a website for the business – both while in the employ of Plumbtrax.
Mr Walker accepted that he established an Instagram account called “walker_environmental” while in the employ of Plumbtrax. He said this was a “trial” and not intended to promote the WES business. For example, he said that one of the posts he made to the account was a type of social media post called a “story” which he had not used before and wanted to try it out.
Four posts taken from the Instagram account were tendered in evidence. Mr Walker said they were all posted during the same 24 – 36 hour time-frame, during November 2024, and that he has not posted anything on the account since. I was not given cause to doubt this evidence. For example, there was no evidence provided to me, by Plumbtrax, of further posts made to the account by Mr Walker other than the four I was provided with.
An email containing copies of these posts was sent to Mr Laurie by a person called “Starr Raine”. It was not properly explained who Starr Raine is – although Mr Laurie referred to having received an “anonymous” email, perhaps referring to the email he received from Starr Raine, perhaps meaning he does not know who Starr Raine is. To the extent there could be said to be any taint to this evidence by reason of it having apparently emanated from the mysterious “Starr Raine” I consider it is material I should nevertheless have regard to, particularly as Mr Walker took no issue with the proposition that he did create the Instagram account and made the relevant posts.
The first post, containing a logo for the “WES” business, shows the account had, at that time, garnered 45 followers and followed 165 profiles. There was no evidence as to who the followers were: members of the general public; potential customers; Mr Walker’s friends or a mixture of a range of different people. It says, “Walker Environmental Services – Melbourne” and lists several services apparently on offer including “drain cleaning”, “licensed plumber”, “CCTV” and “reline”. Mr Walker accepted he made this post during the period in which he was still employed by Plumbtrax.
The second post headed “walker_environmental” contains a photograph of a truck and says, “our newest addition to the fleet state of the art drain cleaning and NOD unit”. There were 14 “likes”. Mr Walker said in evidence that, consistent with his explanation these posts were a “trial”, that he does not and has never owned that truck or drain cleaning unit. Mr Walker accepted he made this post during the period in which he was still employed by Plumbtrax.
The third post is a photograph, apparently unlabelled, of two machines. I was told in evidence these are “chain cutters” which are used to remove tree root intrusions from pipes and drains. Some controversy arose as to whether the machines in the photographs are the property of Plumbtrax or not. Mr Laurie said the machines were Plumbtrax’ property. Mr Walker disputed this, and said they were being displayed as a promotion by another Company at a job-site, and he took a photograph of them during his lunch-break. I will deal further below with the controversy surrounding the ownership of these machines. At this point it is appropriate simply to note that this post was also made by Mr Walker on the WES Instagram account by him while he was still in the employ of Plumbtrax.
The fourth post is a photograph taken by a CCTV camera of the inside of a pipe, showing a tree-root intrusion. Mr Walker conceded he took this photograph while he was working for Plumbtrax and as such it is a photograph of a tree-root intrusion concerning one of Plumbtrax’ clients. There is no identifying information on the photograph. Mr Walker accepted he made this post during the period in which he was still employed by Plumbtrax.
I note that these Instagram posts were made by Mr Walker during the period in which he was working full time for Plubtrax. It is unclear to me how Mr Walker would have been able to undertake work through WES if any had arisen through the material that he was posting on his Instagram site while all of his time was taken working full time for Plumbtrax. This practical reality weighs against the contention that the Instagram account was a genuine attempt to solicit work for his new business, and in favour of the proposition made by Mr Walker, that this was simply a trial.
Screen shots of the WES website were provided in evidence. The website is a professional looking business website, providing information about services available and an interactive portal through which quotes can be sought or the business contacted. Its purpose seems obviously to be the promotion of the WES business and the solicitation of clients and work for that business.
Mr Laurie said in his evidence that he discovered the WES website on 2 December 2024[2]. He said that on this day, he was sent an “anonymous email” about Mr Walker. I was invited by Plumbtrax to accept this was the email he received from Starr Raine, referred to above. Mr Laurie said this prompted him to search for a website, which he said he then discovered on this same date.
Mr Walker tendered a copy of an email sent from a website designer, Mr Inglis. The email was sent on 2 December 2024 from Mr Inglis to a Mr Steve Walker, who I understand is the Applicant’s father. The email from Mr Inglis refers to a Website Development Proposal apparently attached, and an invoice, and asks that the invoice be paid so that the build process could start “right away”. Some other instructions about the domain name are provided.
Below, I observe that this proceeding has been somewhat beleaguered by hearsay evidence, some of which I do not consider I can give any weight to. The email from Mr Inglis to Mr Walker (Senior), being apparently an exchange between two people, neither of whom gave evidence in the proceeding, could fall into this category. Plumbtrax, who was ably represented in the proceeding by Mr Field, did not appear to object to my giving consideration to this email. The email suggests that Mr Walker’s website was not in existence on 2 December 2024, because its web designer had not yet been given instructions to commence the build, nor had it been paid by that date. Mr Walker gave evidence that the website was not available for public view before the end of his employment with Plumbtrax, although could not say precisely when it was launched save for a somewhat vague suggestion it was launched in 2025. I intend to give the email some weight as corroborative of Mr Walker’s assertion that the website had not been built on or by 2 December 2024 (the date of the email from the web-designer).
A stark difference therefore exists in Mr Walker and Mr Laurie’s evidence in relation to the existence of the website. Mr Laurie said he discovered it on 2 December 2024. Mr Walker, its owner, said it was not visible to anyone prior to his termination which occurred on 17 December 2024.
I was invited by Plumbtrax to find issue with Mr Walker’s credibility in the evidence he gave in this proceeding. The particular basis of this submission was that it was said Mr Walker gave inconsistent evidence about the termination meeting, stating in his evidence at one point that Mr Laurie had taken him through the allegations and he had responded to them, and then later in his evidence, that he had not been able to respond to the allegations. I do not agree with this submission. The evidence given by both parties as to what was said in the termination meeting was less than precise. Mr Walker, a relatively young self-represented litigant, acquitted himself adequately during the hearing. I had no reason to doubt the veracity of his evidence. If there were minor inconsistencies or uncertainties in his evidence, I consider them a natural result of his obvious nervousness under cross examination by a competent lawyer. He was largely forthright, not falling into the common error of attempting to avoid giving answers he may have not thought in his interest or giving self-serving answers.
I also had no reason to doubt the credibility of Mr Laurie’s evidence. It did strike me that his evidence was somewhat brusque – particularly about what he said during the termination meeting - perhaps reflecting a frustration at having to be involved in proceedings brought by Mr Walker who he is convinced was acting duplicitously by establishing his own business in competition with Plumbtrax while still in its employ.
Despite there being no obvious issue with either witnesses’ credit, it is nevertheless necessary that I resolve the apparent contradiction in the evidence about the website. If Mr Laurie’s version is preferred, it means Mr Walker presented a professional looking business website advertising services similar to those of his employer to the world at large during his employment with Plumbtrax, offering quotes and apparently soliciting work. Mr Walker’s version is that this did not occur during his employment.

I consider it telling that the website is not referred to in the termination letter. The Instagram account is referred to. It seems odd to me that Mr Laurie, in the termination letter, upbraided Mr Walker about the Instagram account, and the taking of photographs, but did not refer a website allowing members of the public (including his competitors) to contact Mr Walker on his mobile phone, seek quotes from him and presumably book him for jobs while he was still an employee of Plumbtrax. I consider that if Mr Laurie was aware of the website on or before 17 December 2024, he would have mentioned its existence in the termination letter. He did not mention it because, in my view, Mr Walker’s evidence that it was not available to be seen at that point should be accepted. I consider Mr Laurie discovered the website after he terminated Mr Walker’s employment and was likely confused in his evidence that he discovered it earlier. I consider the website did not go live during Mr Walker’s employment.

That Mr Walker used Plumbtrax resources to promote his business without authorisation

Mr Laurie took particular issue with the idea that Mr Walker had used Plumbtrax property in the Instagram posts he made. In particular, there was significant controversy over whether the chain cutters, featured in a photograph Mr Walker took, then posted on the Instagram Profile, were Plumbtrax’ machines or not. An invoice was tendered showing the purchase of chain cutting machinery by Plumbtrax, said to be a “set” on 1 June 2024. Mr Laurie seemed adamant the machines in the photograph were those chain cutters Plumbrax had purchased and which it owned. Mr Walker on the other hand said that the equipment supplier, “USB-AUS” had put the machines on show at a job site he was at, and he took a photograph of them, and thus they were not Plumbtrax’ property. He said Plumbtrax’ chain cutters were a different model.
The relevance of whether the chain cutters were Plumbtrax property or not was not entirely explained to me. Conceivably, if they were, any lack of fidelity on the part of Mr Walker to his employer could be said to have been accentuated somewhat, although it seems to me the primary allegation is whether or not the making an Instagram account featuring plumbing advertisements and other paraphernalia while still in Plumbtrax’ employ weighs in favour of a finding that Mr Walker engaged in serious misconduct. I do not consider much turns on who owned the chain cutters and I do not intend to attempt to resolve this difference in the evidence.
Plumbtrax also took issue with Mr Walker’s use of a CCTV photograph on his Instagram Account of a root intrusion. It said “the Applicant did not obtain the Respondent’s consent to use its intellectual property, namely CCTV footage on his Instagram account for advertisement purposes”[3]. Mr Walker said his image was a photograph he took, albeit of the image from a Plumbtrax CCTV camera he was using.
I will say something further about this photograph below, but, similar to the provenance of the chain cutters, I do not consider that the fact this photograph is of an image taken by a piece of Plumbtrax equipment is of particular relevance to whether it’s use on the Instagram account, or the existence of the account itself, amounts to serious misconduct, or not.

That Mr Walker intended to solicit Plumbtrax customers and suppliers

The assertion that Mr Walker intended to or had begun to solicit Plumbtrax customers and suppliers appears to be based on four allegations which are as follows:

a.First it is alleged Mr Walker told a person called Mr Jack Harford about WES and that he was going to solicit Plumbtrax’ suppliers and clients.
b.Secondly, it is alleged Mr Walker contacted Mr Serge Fast from Pipe Core Pty Ltd, said to be a supplier to Plumbtrax.
c.Thirdly, it is alleged Mr Walker contacted Mr Troy Fairbairn from KOR Equipment Solutions Pty Ltd, said to be a supplier to Plumbtrax.
d.Fourthly, it is alleged Mr Walker contacted Shannon Moroney from USB-AUS, said to be a supplier to Plumbtrax.

Plumbtrax’ evidence in relation to each of these allegations was peppered with hearsay. The Act provides that while the Commission must perform its functions in a manner that is fair and just, it is not bound by the rules of evidence and procedure[4]. However, it is well established that the Commission tends to follow the rules of evidence as a general guide to good procedure[5].
I can give no weight at all to the evidence in relation to what Mr Walker is alleged to have said to Mr Harford. This evidence, given by Mr Laurie, was based on a text message he received by a person called “Tiahn”, a copy of which was provided in evidence. The text message from “Tiahn” said they had spoken to Mr Harford, who had told him things alleged to have been said by Mr Walker. Neither Tiahn nor Mr Harford gave evidence in this proceeding. Accordingly, this evidence provides no support whatsoever to a finding that Mr Walker had or intended to solicit Plumbtrax clients or suppliers. At its highest, it is evidence that Mr Laurie received a message from someone with third-hand information about what Mr Walker is supposed to have said.
None of Mr Fast, Mr Fairbairn or Mr Moroney gave evidence in this proceeding and thus could not be examined as to what Mr Walker said to them in these conversations. I consider that all that can be taken from this evidence is that Mr Laurie was told by each of these persons on 5 December 2025 that Mr Walker contacted them. There was no reliable evidence about the veracity of what Mr Walker said to them, the purpose of his contact with them (if any), or that he had attempted to “solicit” them in some way.
On this basis, there is no evidence before me that Mr Walker attempted to “solicit” Plumbtrax’ clients or suppliers during his employment. In so far as there may be a suggestion Mr Walker intended to solicit its clients at some time, the only reliable evidence before are the screen shots of the Instagram account and the website, which indicate that at some point Mr Walker planned to conduct a business offering services to the world at large that were similar to Plumbtrax, and therefore in competition with it.

Was Mr Walker’s conduct in breach of his contract of employment?

The termination letter given to Mr Walker alleged he was in breach of his contract of employment.
In oral submissions, it was said for Plumbtrax the alleged breaches are in relation to clause 25 of the contract, which deals with “confidential information and clause 30 of the contract, which deals with “non-solicitation and post-termination restraint”.
The termination letter also refers to clause 26, which deals with intellectual property, clause 27, which deals with non-disparagement, clause 28, which deals with “relief from duties”, clause 29, which deals with termination of employment and clause 8, which deals with licenses.
Neither the Respondent’s written or oral submissions dealt squarely with alleged breaches of contract in relation to non-disparagement, relief from duties or termination of employment. On the evidence before me, it is not apparent how it is said Mr Walker was in breach of these clauses.
There was some reference made by the Respondent to “intellectual property” when referring to the chain cutters and the CCTV photograph. As I have said above, there is an unresolved question as to whether the chain cutters were Plumbtrax’ property at all, much less its intellectual property. I also do not agree that the CCTV photograph constitutes Plumbtrax intellectual property within the definition of that term at clause 1 of the contract.
There was also some reference made by Plumbtrax, particularly in the termination letter, to the effect that Mr Walker had not provided Plumbtrax with an updated copy of his Victorian driver's license when asked to do so. Clause 8.1 of the contract requires Mr Walker to hold a valid driver's license and clause 8.2 provides the employer may require evidence to be provided that one was held. There was no evidence before me Mr Walker ever failed to hold a driver's license. If he was asked to provide one, but didn’t, no emphasis appears to have been placed on this matter in the submissions made by Plumbtrax. I do not consider this to be a relevant matter for the purposes of what I am required to decide in this matter.
The first four sub-clauses which make up the substance of clause 30 of Mr Walker’s contract, dealing with non-solicitation each begin with the words “from the date your employment ends”. It therefore appears to follow that, even if it were said Mr Walker has engaged in conduct which is in breach of this clause since his employment ended, it could not have been justification for the termination of his employment “before his employment ended”. This obvious problem in the references made to clause 30 of Mr Walker’s conduct somehow being a justification for the termination of his employment perhaps explains why no great emphasis was placed on this point in Plumbtrax’ submissions.
Even if somehow the clause operates to prevent solicitation prior to termination, I find no evidence he did so, either with respect to Plumbtrax’ clients or suppliers.
Clause 25 of the contract provides required Mr Walker to refrain from using “confidential information” for any purpose other than for the benefit of his employer, and to keep such information confidential, and to refrain from directly or indirectly disclosing confidential information to a third party except in the proper course of carrying out duty. “Confidential material” is defined in clause 1 of the contract as:
“Confidential Information means all the information including trade secrets, Intellectual Property, marketing and business plans, client and supplier lists, computer software applications and programs, business contacts, finance, remuneration details, data concerning the Employer or any of its associated entities or any client of the Employer’s, finances, operating margins, prospect’s lists, and transactions of the Employer, but does not include information in the public domain otherwise than through a breach of an obligation of confidentiality.”
As I understand it, Plumbtrax says Mr Walker’s unauthorised use of confidential information in breach of his contract was the photographs he took and used of the chain cutters and the CCTV image.
I do not consider either the photograph of the chain cutters or the photograph of the CCTV footage is “confidential information” within the meaning of Mr Walker’s contract of employment. They are not information of the kind contained in the definition of that term (set out above).
It was not argued before me that Mr Walker was otherwise in breach of his contract of employment through, for example, acting in a manner inconsistent with his implied contractual duty of fidelity and loyalty to Plumbtrax. I do not consider Mr Walker’s conduct could be said to constitute such a breach.

The Small Business Fair Dismissal Code

While not originally raised in its Response to this application, Plumbtrax’ response argues that the termination of Mr Walker’s employment occurred in a manner that was consistent with the Small Business Fair Dismissal Code (the Code). It is therefore necessary I determine that question as a preliminary matter.
There is no question that Plumbtrax was a small business, within the meaning of s 23 of the Act, having had at the time of Mr Walker’s dismissal 7 employees. The Code applies.
Section 388 provides as follows:
388 The Small Business Fair Dismissal Code
(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal 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 Small Business Fair Dismissal Code in relation to the dismissal.
The SBFDC, provides as follows:
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.
There was no question that Mr Walker’s employment was summarily dismissed. As such it is necessary to consider whether the dismissal was consistent with the first part of the Code that deals with circumstances of summary dismissal. A Full Bench of this Commission set out the following approach:
(1) If a small business employer has dismissed an employee without notice - that is, with immediate effect - on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the “Summary dismissal” section of the Code. All other types of dismissals by small business employers are to be considered under the “Other dismissal” section of the Code.
(2) In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element[6].
It is not therefore necessary to determine whether the employer was correct in the belief that it held, that an employee’s conduct was sufficiently serious to justify immediate dismissal[7]. However, the belief must be based on reasonable grounds, and often it will be necessary to put the allegations to the employee and consider their response. Or as another Full Bench of the Commission put it:
“Normally in order to hold a belief on reasonable grounds it will be necessary to have a discussion with the employee about the perceived serious misconduct and pay regard to the explanations and views given by the employee.”[8]
The reference to “serious misconduct” in the Code is a reference to the concept as defined by regulation 1.07 of the Fair Work Regulations 2009 (the Regulations)[9].
Plumbtrax submits that Mr Walker’s dismissal was consistent with the code because:
“it was based on Mr Laurie’s belief that the Applicant engaged in serious misconduct by conducting a business in direct competition and opposition to the Respondent”[10].
It says this conduct falls “within the rubric of ‘conduct that causes a serious and imminent risk to the viability or profitability of the employer’s business’”[11]. It also appeared to believe, based on the termination letter, that Mr Walker’s conduct amounted to a breach of his contract.

Did Mr Laurie have a genuinely held belief that Mr Walker’s conduct was sufficiently serious to justify immediate dismissal?

I consider that in early December 2024 Mr Laurie formed a genuinely held belief Mr Walked had commenced the conduct of a business in direct competition with him. He saw Instagram posts which looked like Mr Walker was advertising his business on social media and attempting to obtain clients and engage in work and had thus commenced the operation of that business. At about this time he was told by some of his suppliers Mr Walker had contacted them and appears to have assumed this was for the purpose of Mr Walker obtaining supply of equipment for his own business.
Mr Walker says that his Instagram account was simply a test, and not for the purposes of soliciting business. However, Mr Laurie did not know that. On seeing the posts, a reasonable assumption at first blush is that Mr Walker had begun conducting his own business. To some degree, the phone calls he received from his suppliers at the time, who told him Mr Walker had phoned them, will have fortified this belief, albeit I have not reliable evidence before me as to content or veracity of those phone calls.
As I have said above, the evidence of the text message received from a person called “Tiahn” is not evidence I intend to give any weight to. It does not constitute a reasonable basis for a belief that Mr Walker had begun conducting his business and precisely that kind of matter which should compel an employer who has cause to believe their employee has engaged in conduct serious enough to justify summary dismissal to speak to their employee and obtain more information.
I have explained above that I do not accept that Mr Walker’s website was live or visible at this time. If it had been, this would likely have put the proposition that Mr Walker had commenced running his business beyond doubt, in a manner difficult to explain away. But I do not accept Mr Laurie saw this website when or before he dismissed Mr Walker.
In Ramin Gilani v GNZ Enterprises Pty Ltd t/a Right Price Conversions[12] Sams DP said that where an employee is operating a business, or has an interest in a business, in direct competition to the business in which he/she is employed, such conduct “strikes at the heart of the employment relationship rendering the continuation of the relationship utterly untenable”[13]. In circumstances where he believed his own employee was, while still working for him, running a similar business of his own, Mr Laurie took the view, similar to that expressed by Sams DP in Ramin, that Mr Walker was acting entirely inconsistently with his employment, and this justified his immediate dismissal.

Was Mr Laurie’s belief based on reasonable grounds?

There is no evidence before me that Mr Walker had begun operating his business prior to the termination of his employment. There is no evidence that he took on any customers or that WES performed any work for anyone. There is no evidence he solicited any customers or advertised the business. The closest he came to doing so was to conduct a short trial of an Instagram account which, on its face, appeared to advertise the business, but based on Mr Walker’s explanation, was not for that purpose. He did register the business with ASIC, and he did engage a web-designer to build him a website. This conduct was consistent with Mr Walker’s stated intention, which he did not resile from, to set up his own business at some point. But it is not the same as having begun to “operate” the business while in Plumbtrax’ employ.

In Ramin, Sams DP dealt with a situation with some similarity. In that matter, the Applicant had an intention to conduct his own business providing mobility engineering services, a similar service to that of his employer, with whom he was employed at the time. While prior to the time of his termination, he had not yet secured any business, Sams DP considered he had nevertheless begun operating a business in direct competition to that of his employer, and his employer’s reasonable belief that he had done so meant, in the Deputy President’s view, his dismissal was consistent with the Code. This was despite the employers’ failure to provide the Applicant with a chance to explain a Facebook page he had established to advertise his business, which his honour considered evidence so incontrovertible that it would have been difficult to explain away[14].
Several important differences exist as between the situation before me, and that which was before Sams DP in Ramin. In Ramin, the Applicant had gone somewhat further than Mr Walker had in establishing his business. He had set up a shop. He had registered with NDIS. Unlike Mr Walker, he had an established Facebook page not for the purposes of a test, but to advertise and solicit work. The Deputy President doubted (as I do not, in respect of Mr Walker) that the Applicant had not secured any business.
Further, I do not think the evidence before Mr Laurie about Mr Walker’s business was so incontrovertible that it would have been difficult to explain away. On the contrary, a sensible conversation would have revealed that Mr Walker had not begun operating his business, that the Instagram account was a trial and that while Mr Walker had an intention to open his own business at some point at the future he had not yet done so. I suspect the conversation would probably have been consistent with a previous conversation that had occurred, in either October or November, to the effect that Mr Walker intended to leave the business sometime in the new year.
This conversation – a “discussion with the employee about the perceived serious misconduct paying regard to his explanations” did not occur. At the point at which the allegations were put to Mr Walker, Mr Laurie had already decided to terminate his employment, having drafted and signed a termination letter. The meeting he held to give Mr Walker this letter was confrontational and not conducive to receiving and considering an explanation.
Plumbtrax says the reason for the summary termination of Mr Walker’s employment was that he was conducting a business in direct competition and opposition to the Respondent. This was a genuinely held belief, but not reasonable. Mr Walker was not conducting a business. A proper investigation involving sensible conversation with him would have revealed this to be the case.
I therefore find that the termination of Mr Walker’s employment was not consistent with the Code and thus I turn now to consider the merits of his application.

Statutory provisions - unfair dismissal

Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

a.whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
b.whether the person was notified of that reason; and
c.whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
d.any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
e.if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
f.the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
g.the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
h.any other matters that the FWC considers relevant.

I am required to consider each of these factors, to the extent they are relevant to the factual circumstances before me[15].

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

It is well established that order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced” [16].
In Rode v Burwood Mitsubishi[17] a Full Bench of the Australian Industrial Relations Commission held: “... 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.” Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred, and justified termination[18].
Merely establishing the factual basis for the reason for dismissal does not by itself demonstrate it was a valid reason. Dismissal must be a justifiable response to the relevant conduct or issue of capacity[19]. A reason not of sufficient gravity to justify dismissal is not sound, defensible or well-founded[20].
Above I explain I do not consider Plumbtrax had a reasonable basis to conclude that that Mr Walker was conducting a business in direct competition and opposition to it. I am also not satisfied this conduct occurred. This, which was the reason for Mr Walker’s termination of employment, was not sound, defensible or well founded, and not valid.
At the most, Mr Walker conducted a social media trial relating to a new business he intended to open, which would have been in competition with his employer when it came into being. I do not consider this conduct sufficiently serious to justify his dismissal.
The termination letter provided to Mr Walker also refers to breach of contract. Above I have explained I cannot find a basis upon which Mr Walker was in breach of his contract. To the extent this was the reason for dismissal, I do not consider it a valid reason.

Was Mr Walker notified of the reason for dismissal?

Notification of the valid reason for dismissal must be given to the employee explicitly and in plain and clear terms. But crucially, this must occur before the decision to terminate the employment is made[21].
Mr Walker was advised of the reason for his dismissal when he was advised of the termination of his employment, on 17 December 2024. He was not notified of the reason for his dismissal before the decision was made to terminate his employment. This factor weighs in favour of a finding that the termination of Mr Walker’s employment was unfair.

Was Mr Walker given an opportunity to respond to the valid reason?

An employee protected from unfair dismissal should be notified of a valid reason for the termination of their employment before a decision is taken to terminate that employment so that they can respond to it in such a way as there is an opportunity to influence the ultimate decision[22].
While 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[23], the employee must be 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[24].
Because Mr Walker was not notified of the reason for his dismissal before the decision was made, he was not properly given an opportunity to respond to it. This weighs in favour of a finding that the termination of his employment was unfair.

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

The evidence in relation to this matter is less than satisfactory. Mr Laurie says he told Mr Walker to bring a support person to the meeting on 17 December 2024. Mr Walker denies this. In any event, there is no evidence before me that Mr Walker asked to have a support person present at the meeting on 17 December 2024, and Mr Laurie refused. I do not consider this factor weighs for or against a finding the termination of Mr Walker’s employment was unfair.

Was Mr Walker warned about unsatisfactory performance before the dismissal?

The reason for the dismissal of Mr Walker’s employment did not relate to his performance. This consideration therefore weighs neither for or against a finding that the termination of Mr Walker’s employment was unfair.

To what degree would the size of Plumbtrax enterprise or the absence of human resources management specialists or expertise would be likely to impact on the procedures followed in effecting the dismissal?

It was not submitted before me that the size of Plumbtrax’ enterprise or the absence of human resources management specialists or expertise impacted on the procedures followed in effecting the termination of Mr Walker’s employment. It is well established that the absence of dedicated human resources management or specialisation does not justify a dismissal to be conducted without procedural fairness or the employee being provided with a fair go[25]. The particular failing in the procedure followed with respect to the termination of Mr Walker’s employment was Mr Laurie’s failure to properly speak to Mr Walker, put his allegations to him, obtain a response and consider it. While Mr Laurie operates a small business, neither its size nor the absence of dedicated human resources management specialisation justify the confrontational approach Mr Laurie took to the termination of Mr Walker’s employment.

What other matters are relevant?

I was not taken specifically to any matter by either party with respect to s 387(h) said to be of additional relevance the Commission should take into account in this matter. I have given consideration to this factor but find nothing further of relevance weighs for or against a finding of unfairness with respect to Mr Walker’s dismissal.

Conclusion

In circumstances where Plumbtrax relies on allegations of serious misconduct which I have found lack substance, and where there was no notification provided to Mr Walker of valid reason or chance for him to respond, it is difficult to avoid the conclusion that the termination of Mr Walker’s employment was harsh, unjust and unreasonable, and I find that to be so. However, I do consider it appropriate to note several matters which, while they are not of sufficient gravity to overcome that finding, I have given consideration to.
Mr Walker had a contract of employment with Plumbtrax which contained an obligation, which I consider he was well aware of, that he not engage or prepare to engage in a business that competes with the business of his employer, not solicit or attempt to solicit any client of Plumbtrax. Mr Walker made brief reference to this clause of his contract being “unfair”. This may foreshadow a proposition Mr Walker holds that this clause in his contract is not enforceable because it is unreasonable[26].
This is not for me to determine. It is the case however that, despite this contractual clause, Mr Walker had, during his employment with Plumbtrax begun preparations to do precisely what the clause purports to prohibit – to establish a business in competition with his employer. These preparations extended to building a professional website to advertise the business, in which Mr Walker (or a person on his behalf) invested money for its construction.
And while I have found Mr Walker had not begun the conduct of that business, I consider it likely that to some minor extent, some of these preparations occurred during time in which Mr Walker was supposed to be working for, and being paid by, Plumbtrax. Mr Walker conceded that at least the photograph he took of the root intrusion occurred during work time.
The Instagram trial may have occurred “out of hours” but plainly occurred while Mr Walker was in Plumbtrax employ and was not authorised. I have accepted his evidence it was a trial. However, any person who saw it, who knew Mr Walker was working for Mr Laurie at the time, might have cause to wonder why Mr Laurie was allowing his employee to engage in such behaviour. It was not conduct sufficient to justify the termination of his employment (especially in circumstances where Mr Laurie made no effort to obtain more information about it from Mr Walker). But to set up a social media account, without authorisation, which made it look like Mr Walker had “gone out on his own” was not a particularly sensible decision on his part.
As Commissioner Riordan said in Sean Fitzpatrick v Drewmaster Pty Ltd[27]:
“… running a secondary business using company time and equipment, without the knowledge of the employer, is different to talking to your colleague about the footy while having a breather.[28]”
In Drewmaster, the Commissioner found that the only allegation which could be sustained against the Applicant was that he was, during his employment, running his own business. The business was not considered to be in competition with that of his employer, but the Applicant did use some of his employer’s equipment. The Commissioner considered this was not sufficient conduct to justify termination of employment.
I have reached a similar conclusion in this matter. Indeed, Mr Walker’s conduct, while to some degree ill-considered, did not go as far as the conduct identified in Drewmaster. Upon consideration of each of the factors set out in s 387 of the Act, giving each due weight as a fundamental element in determining whether the termination was harsh, unjust or unreasonable[29] I consider that while there are factors which are neutral, the greater weight of the factors I am required to consider are in favour of a finding that the dismissal was unfair. I am satisfied that the dismissal of Mr Walker was harsh, unjust and unreasonable and I find Mr Walker was unfairly dismissed.

Remedy

Being satisfied that Mr Walker:

a.made an application for an order granting a remedy under s 394;
b.was a person protected from unfair dismissal;
c.and was unfairly dismissed within the meaning of s 385 of the Act,
I may, subject to the Act, order Mr Walker’s reinstatement, or the payment of compensation to Mr Walker.

Under s 390(3) of the Act, I must not order the payment of compensation to Mr Walker unless: (a) I am satisfied that reinstatement of Mr Walker is inappropriate; and (b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.

Is reinstatement of Mr Walker inappropriate?

Mr Walker does not seek reinstatement, and it is opposed by Plumbtrax. I find in these circumstances that reinstatement is inappropriate.

Is an order for payment of compensation appropriate in all the circumstances of the case?

Mr Walker has suffered financial loss in circumstances where I have found he was unfairly dismissed. Whilst it does not automatically follow that a payment of compensation is appropriate[30], in all the circumstances, I consider that an order for payment of compensation is appropriate.

Compensation – what must be taken into account in determining an amount?

Section 392(2) of the Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to Mr Walker in lieu of reinstatement including:

a.the effect of the order on the viability of Plumbtrax enterprise;
b.the length of Mr Walker’s service;
c.the remuneration that Mr Walker would have received, or would have been likely to receive, if he had not been dismissed;
d.the efforts of Mr Walker (if any) to mitigate the loss suffered because of the dismissal;
e.the amount of any remuneration earned by Mr Walker from employment or other work during the period between the dismissal and the making of the order for compensation;
f.the amount of any income reasonably likely to be so earned by Mr Walker during the period between the making of the order for compensation and the actual compensation; and
g.any other matter that the Commission considers relevant.

I consider each of these matters below.

Effect of the order on the viability of Plumbtrax’s enterprise

The onus is on Plumbtrax to provide evidence of the financial situation of the business and the likely effect that an order of compensation will have on the viability of the business[31]. I was provided with no evidence in this regard. I consider this is a neutral factor in respect of the s 392(2) considerations.

Length of Mr Walker’s service

Mr Walker was employed by Plumbtrax for just over 3 years. This is not a significantly long period of service, but it is not a short one either. The length of Mr Walker’s service does not add particular weight for or against an order of compensation in this matter.

Remuneration that Mr Walker would have received, or would have been likely to receive, if he had not been dismissed.

In determining the remuneration that Mr Walker would have received, or would have been likely to receive, I am required to address myself to the question of whether if Mr Walker’s employment had not been terminated, the employment would have been likely to continue or would have been terminated at some time by another means, and in doing so, make an assessment as to the anticipated period of employment[32].
Mr Walker conceded that a reasonable prediction as to how long he may have continued to work at Plumbtrax, had he not been dismissed, was the period he alluded to in an email response he sent Mr Laurie in late November 2024, when he said his departure from the business might occur in “late jan – late march”.
In this regard, I also consider it appropriate to consider the preparation of the website. I have found that the website was not launched prior to 17 December 2024. However, it appears clear that on or about 2 December 2024 instructions were given for its construction, and it was built at some point and ready for launch, probably at least by early 2025.
If the website had been launched while Mr Walker was still in Plumbtrax’ employ, the case that he had engaged in serious misconduct would have been much more compelling. It is not appropriate simply to assume Mr Walker would have launched the site while still employed. However, by late January 2025, I consider Mr Walker would have had a website ready to launch, consistent with the earlier point in time of the range he had given Mr Laurie for his impending resignation. Putting it another way, by late January 2025, Mr Walker would have been “ready to go” with his new business. On the evidence before me, I consider it likely Mr Walker’s employment with Plumbtrax, had he not been dismissed, would not have continued past the end of January 2025 or would have continued for a further period of about six weeks. This is the “anticipated period of employment”[33].
Plumbtrax asserted in its response to Mr Walker’s application that his weekly salary was $2,307.69 and no issue was taken with that assertion before me. I calculate the remuneration Mr Walker would have been likely to receive working for Plumbtrax for a further 6 weeks to be $13,846.14 gross plus superannuation.

Efforts of Mr Walker to mitigate the loss suffered by Mr Walker because of the dismissal

Mr Walker asserted that since the termination of his employment with Plumbtax, he has made efforts to obtain what he described as “subcontracting work” for friends. He appears still to have the ambition of conducting his own business, although said it is not operational. This evidence was given from the bar table, but I indicated to Mr Field for Plumbtrax that, given Mr Walker was self-represented in this matter, I intended to accept his assertions as to these efforts to mitigate his loss and invited him to make any submissions he wished to make in that regard. Issue did not appear to be taken with the proposition that I am entitled to take Mr Walker’s assertion that he has attempted to find, and has found, “subcontracting” work since the termination of his employment as efforts to mitigate his loss (rather, Mr Field took this opportunity to re-assert his submission that I should find Mr Walker’s conduct amounted to misconduct). I consider that through these efforts Mr Walker has made efforts to mitigate his loss of income arising from the termination of his employment with Plumbtrax.

Amount of remuneration earned by Mr Walker from employment or other work during the period between the dismissal and the making of the order for compensation

At the conclusion of the hearing, I asked Mr Walker to send my chambers information about what remuneration he has earned through his efforts to obtain “subcontracting work” since his dismissal. Material was provided indicating that, as 3 February 2025 he had earned $2,120.00 gross and I intend to take this amount into account in calculating compensation in relation to this matter.

Amount of income reasonably likely to be so earned by Mr Walker during the period between the making of the order for compensation and the actual compensation

The Order I intend to make in this matter will be expressed such that it must be complied with within 14 days. On the basis of the information before me, I consider it reasonably likely Mr Walker will not earn significant income during this period, such that it need affect the Order of compensation I intend to make into relation to this matter.

Other relevant matters and misconduct.

I do not consider any other matter to be relevant for the purposes of s 392(2) of the Act. Further, while Plumbtrax took the view that Mr Walker had engaged in serious misconduct I do not consider this relevant to the question of remedy because I do not consider there was any evidence supporting the allegation that Mr Walker engaged in misconduct.

Calculation of compensation

Below, I adopt the Sprigg formula to calculate the amount of compensation which should be awarded to Mr Walker in respect to this matter[34]. The formula is as follows:

a.Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
b.Step 2: Deduct monies earned since termination. Workers’ compensation payments are deducted but not social security payments. The failure to mitigate loss may lead to a reduction in the amount of compensation ordered.
c.Step 3: Discount the remaining amount for contingencies.
d.Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.

Step 1

I have estimated that Mr Walker would have remained employed by Plumbtrax for at least a further six months. The remuneration Mr Walker would have received, or would have been likely to have received, during this period is $13,846.14 gross plus superannuation.

Step 2

Mr Walker asserted, and I accept, he earned $2,120.00 during the anticipated period of employment through efforts he made to mitigate his loss.
A figure of $11,726.14 is left after the deduction for remuneration earned.

Step 3

I do not consider it is necessary to discount this amount for contingencies.

Step 4

I have considered the impact of taxation but have elected to settle a gross amount of $11,726.14, plus superannuation, and leave taxation for determination.

Compensation – is the amount to be reduced on account of misconduct?

I do not consider Mr Walker engaged in misconduct and do not intend to reduce the amount of compensation as a result.

Compensation – how does the compensation cap apply?

The compensation cap[35] in this matter for the purposes is the total amount of remuneration received by Mr Walker or to which he was entitled in the 26 weeks immediately before the dismissal. I have calculated this figure to be figure is $59,999.84 and does not require an adjustment in the amount of compensation I have calculated should be awarded in this matter.

Is the level of compensation appropriate?

Having applied the formula in Sprigg, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case”[36].
The application of the Sprigg formula has resulted in an outcome where Mr Walker would be awarded compensation of $11,726.14, plus superannuation.
I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s 392(2) of the Act and is appropriate.

Compensation order

Given my findings above, I will make an order[37] that Plumbtrax must pay Mr Walker $11,726.14 less taxation as required by law, plus a superannuation contribution into his nominated fund of $1,348.51, within 14 days of the date of this decision.

COMMISSIONER

Appearances:

G Walker, for himself
B Field, for the Respondent

Hearing details:

2025.
Melbourne.
20 March.

[1] Witness Statement of Jeff Laurie, 12 March 2024 [9]

[2] Witness Statement of Jeff Laurie, 12 March 2024 [12] (and repeated again at [15]).

[3] Respondent’s Outline of Submissions [13]

[4] Fair Work Act 2009 ss 591 and 577(1)

[5] Australian International Islamic College T/A Australian International Islamic v Paramjit Brownson[2024] FWCFB 465; King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019

[6] Ryman v Thrash Pty Ltd [2015] FWCFB 5264 [41]

[7] Pinawin T/A RoseVi.Hair.Face.Body v Domingo[2012] FWAFB 1359 [29]

[8] Ibid [38]

[9] Ryman v Thrash Pty Ltd [2015] FWCFB 5264 [37]

[10] Respondent’s Outline of Submissions [35]

[11] Ibid [38]; see reg 107(2)(b)(ii)

[12] [2018] FWC 1719

[13] Ibid [48]

[14] Ramin [57]

[15] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 [14]

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

[17] PR4471

[18] Edwards v Giudice [1999] FWC 1836 [7]

[19] Raj Bista v Glad Group Pty Ltd t/a Glad Commercial Cleaning[2016] FWC 3009 [34]

[20] Kylie Smith v Bank of Queensland Ltd[2021] FWC 4 [124], [126]

[21] Newton v Toll Transport[2021] FWCFB 3457 [182]

[22] Crozier v Palazzo Corporation (1996) 98 IR 137 [73]

[23] RMIT v Asher (2010) 194 IR 1 [14] – [15]

[24] Gibson v Bosmac Pty Ltd (1995) 60 IR 1 [7]

[25] Pecker Maroo Verano Pty Ltd v Stevens [2024] FWCFB 147 [110]

[26] See for example Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Pty Ltd (1973) CLR 288

[27] [2024] FWC 351

[28] Ibid [111]

[29] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) IR 117 357 [51]; Edwards v Giudice [1999] FCA 1836 [6] – [7]

[30] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 [9]

[31] Vickery v Assetta [2004] FCA 555; D.A. Moore v Highpace Pty Ltd (1998) Print Q0871

[32] He v Lewin [2004] FCAFC 161 [58]

[33] Ellawalla v Australian Postal Corporation Print S5109 [34]

[34] Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21

[35] Fair Work Act 2009 s 392(5) and (6)

[36] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206 [17]

[37] PR785617

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