Mr Mitchell Bevan v Nigwil Cellars Pty Ltd - [2025] FWC 2392

[2025] FWC 2392

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Mitchell Bevan
v

Nigwil Cellars Pty Ltd

(U2025/6034)

DEPUTY PRESIDENT CROSS

SYDNEY, 13 OCTOBER 2025

Application for an unfair dismissal remedy - Small Business Fair Dismissal Code

Mr Mitchell Bevan (the Applicant) was employed by Nigwil Cellars Pty Ltd (the Respondent) from 23 February 2024 until 27 April 2025, as a casual shop attendant. The Applicant was summarily dismissed on 27 April 2025.

On 15 May 2025, the Applicant filed an application, pursuant to s 394 of the Fair Work Act 2009 (the Act), for an unfair dismissal remedy (the Application).

In response, the Respondent raised the jurisdictional objection that the Respondent is a small business employer and the employer complied with the Small Business Fair Dismissal Code (the Code).

On 14 August 2025, I heard the matter (the Hearing). The Applicant represented himself and Mr Nigel Williams represented the Respondent.

Non-Publication Application after Hearing

Following the Hearing, on 15 August 2025, the Applicant filed a Form F1 seeking that the Commission make an order under s.593(3) of the Act and/or any other relevant power to prohibit the publication of any identifying details, documents, transcripts, or information relating to this matter on the Fair Work Commission website or in any other publicly accessible format. Section 593 of the Act provides as follows:

“Confidential evidence in hearings
593(3) The FWC may make the following orders in relation to a hearing that the FWC holds if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:
(a) orders that all or part of the hearing is to be held in private;
(b) orders about who may be present at the hearing;
(c) orders prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing;
(d) orders prohibiting or restricting the publication of, or the disclosure to some or all of the persons present at the hearing of, the following:

(i) evidence given in the hearing;
(ii) matters contained in documents before the FWC in relation to the hearing

It is clear from the above provisions of the Act that the Commission has a wide discretion in relation to the making of confidentiality and non-publication orders in relation to hearings where it is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason.

In Day v Smidoreand others (No 2),[1] the NSWIRC, considered an application to suppress the names of witnesses in a decision made under s. 164A of the Industrial Relations Act 1996 (NSW), which provides:

“164A Powers of Commission as to the disclosure of matters before the Commission
(1) A "non-disclosure order" is any of the following orders—
(a) an order prohibiting or restricting—

(i) the disclosure of the name, address, picture or any other material that identifies, or may…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Mr Mitchell Bevan v Nigwil Cellars Pty Ltd

Details

AGLC: Mr Mitchell Bevan v Nigwil Cellars Pty Ltd [2025] FWC 2392
Case: [2025] FWC 2392
Decision Date: 13 OCTOBER 2025

CaseChat Overview and Summary

The Applicant, Mr Mitchell Bevan, was employed by Nigwil Cellars Pty Ltd, the Respondent, as a casual shop attendant from 23 February 2024 until his dismissal on 27 April 2025. The Applicant filed an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009. The Respondent raised a jurisdictional objection that it is a small business employer that complied with the Small Business Fair Dismissal Code. The Applicant also sought a non-publication order to prevent the release of identifying details and documents relating to the matter.

The primary legal issues before the court were whether the Respondent was a small business as defined by the Fair Work Act 2009, whether the Respondent complied with the Small Business Fair Dismissal Code in dismissing the Applicant, and whether the dismissal was consistent with the Code. If the dismissal was consistent with the Code, then the Applicant's claim for an unfair dismissal remedy would be beyond the Commission's jurisdiction.

The court found that the Respondent was a small business with 7 employees, as claimed by the Respondent. The court also found that the Respondent complied with the Small Business Fair Dismissal Code in summarily dismissing the Applicant. The court was satisfied that the Respondent had reasonable grounds to believe the Applicant's conduct was sufficiently serious to justify his immediate dismissal. The dismissal was therefore consistent with the Code, and the Applicant was not unfairly dismissed. As a result, the Commission had no jurisdiction to deal with the Application.

The Application for an unfair dismissal remedy was dismissed. The court also refused the Applicant's request for a non-publication order, finding that the principle of open justice was paramount and that stronger arguments would be needed to justify such an order.

Orders