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

1. 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.

1. 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).

1. 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).

1. 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

1. 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

1. 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.

1. 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 lead to the identification of, any person (whether or not a party to proceedings before the Commission or a witness summoned by, or appearing before, the Commission), or

(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person,

(b) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Commission,

(c) an order prohibiting or restricting the publication of evidence given before the Commission, whether in public or in private, or of matters contained in documents lodged with the Commission or received in evidence by the Commission,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Commission, or of the contents of a document lodged with the Commission or received in evidence by the Commission, in relation to the proceedings.

(3) The Commission may make any non-disclosure order if it is satisfied that it is necessary to do so in the interests of justice.

(4) The Commission may from time to time vary or revoke an order it has made under this section.

1. The Court there stated:

“The paramount consideration, in our opinion, remains the principle of open justice. Non-disclosure orders, such as pseudonym orders, merely to protect persons from injury, hurt, embarrassment or distress would be inimical to the ordinary rule that courts should conduct their proceedings “publicly and in open view”: Scott v Scott [1913] AC 417 at 441.”

1. Decisions of the Commission have also held that the presumption of open justice cannot be displaced by mere embarrassment, distress or damage which publication may cause a party.[2] In Re. Justin Corfield (Corfield),[3] Commissioner Bissett observed that an application for de-identification, as was before her in that matter, is considered the least adverse to the maintenance of open justice.[4] It follows that an application for non-publication of the whole or any part of a decision of the Commission would require stronger arguments in its favour.

1. S.601(1) grounds an assumption that a decision of the Commission must be in writing, and that there is an assumption in s.601(4) that decisions must be published.

1. The Applicant was directed on two further occasions to provide any further submissions and/or statements he may wish to rely upon in support of his Application. He filed no further material. The Respondent did not provide any material in response to the Applicants Form F1.

1. In light of the primacy of the principle of open justice, I determined not to grant the order sought by the Applicant.

1. On 11 September 2025, my Chambers sent an email to the parties advising that the Non-Publication Order would not be made, providing the reasons above.

The Legislation

1. Section 385 of the Act defines when a dismissal is unfair. It provides as follows:

‘385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

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

and

(d) the dismissal was not a case of genuine redundancy.’

1. Section 396 of the Act requires the Commission to determine a number of preliminary

matters, before considering the merit of the Applicant’s claim. The section provides as follows:

‘396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under
Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.’

1. In relation to those preliminary matters, I find:

(1) The Applicant is a national system employee, and the Respondent is a national system employer (ss.380, 13, 14);

(2) The Applicant was employed under the terms of the General Retail Industry Award (s.382(b)).

(3) The Applicant had been employed for the minimum employment period for a small business of at least twelve months (ss.382(a), 383(b));

(4) The Applicant’s dismissal was not a case of genuine redundancy (s.385(d));

(5) The Applicant was summarily dismissed on 27 April 2025 (ss.385(a), 386); and

(6) The application for a remedy from unfair dismissal was lodged within the statutory time limit of 21 days (s.394(2)(a)).

1. The only outstanding preliminary issues are:

(a)Whether the Respondent’s business is a small business as defined by s.23 (ss.396(c), 388); and

(b)Whether the Respondent complied with the Code and consequently, the Applicant’s claim for an unfair dismissal remedy was beyond the Commission’s jurisdiction.

1. I note that if, however, it is found that the Respondent had not complied with the Code, then considerations going to whether the dismissal was ‘harsh, unreasonable or unjust’, within the terms of s 387 of the Act, will arise.

Preference of Evidence

1. It was a feature of this matter that while the Applicant’s dismissal resulted from his various interactions with customers, co-workers, and Mr Williams, and both the Applicant and the Respondent/Mr Williams relied upon written statements from such customers and co-workers, only the Applicant and Mr Williams attended the Hearing and gave evidence. As such, it was necessary to consider whose evidence to accept where there existed contest.

1. Where there did exist such contest on the evidence, I have preferred the evidence of Mr Williams. Mr Williams was entirely responsive to questions asked of him, and readily gave clear and consistent evidence, even when it was clear that his answers were against the Respondent’s interests. As an example, it was clearly against the Respondent that the termination letter did not include the actual reason for dismissal, yet Mr Williams readily conceded that to be the case.[5]

1. The Applicant on the other hand appeared to tailor and “characterise” his evidence to present as favourable a factual scenario as possible. An example was his dealing with a customer referred to as “MP”. The evidence was:[6]

THE DEPUTY PRESIDENT:  You said up until the point you asked him to leave, you were courteous, which seemed to have a point of distinction? --- Okay.

Am I correct in understanding thereafter you weren't courteous? --- I honestly could've been more polite, but I think considering MP, as the man in question, walked in a clicked at the cool room door and told me to go and get him a case of beer, I felt it was proportional.

That's at page 27.  You don't say anything about clicking at the fridge and saying, 'Get me a beer'? --- I characterised it as demanding me to go and fetch him a case of beer.

Where's that listed in your? --- Page 28 point 6 is a response to the alleged common denominator:

I explained I was simply applying RSA obligations to a man who staggered into the store and demanded I fetch him a case of beer.

Okay, but the words 'click of the fingers', which seemed to be what had set you off, that's not mentioned there or again at page 31 when you're dealing with this particular incident.  I note that you are spending some minutes reading through your statement, but am I correct in understanding that this reference to a 'click of the fingers' is - the first time is while you are giving evidence today? --- It's possible.  If we can circle back to it, I can look through everything, but otherwise maybe that's why I was requesting the footage on that particular day.  I remember the time and the date that it happened because I like to point out these things to  Mr Williams.

Nonetheless, in this particular instance - - -? ---I could have this incorrect, sorry.

Sorry? --- I might have this incorrect that it was in the statement.

However, you have conceded that, up to a certain point, you say you were courteous, but then you were not thereafter? --- Okay, sure, yes.

[Emphasis added]

1. One further area of concern regarding the evidence of the Applicant was that he did not seem to appreciate the inappropriateness and seriousness of his actions. That lack of appreciation of seriousness was most vividly displayed by the Applicant’s evidence regarding filming young children and posting the footage on social media. That evidence of the Applicant was:[7]

You downloaded or recorded some CCTV footage of two young children entering the store.  Did you do that? --- Yes.  I mean, you were there when I did that.

No, I wasn't? --- Okay.

I believe it was a Sunday.  You downloaded it onto your social media page with some very unsavoury commentary.  Do you acknowledge that? --- It was on my Facebook, but I don't – I had permission to do it, so I don't see – are you saying it was uploaded on a public platform, even though I had no permission to do it?

Yes? --- Doesn't sound like a smart thing to do.

THE DEPUTY PRESIDENT:  It's not a question of whether it's smart, it's a question of whether you did it? ---Well, I had permission, so I'm not - - -

You had permission to upload to Facebook footage of two children? --- It was – it was just a joke.  I asked Mr Williams about it and I don't – I've since taken it down.

It's a joke? --- They - - -

Among whom? --- Their father is a regular customer.  They walked in off the street and they grabbed a beer.  I, plus the lady I was serving at the time, all laughed about it.  On the WhatsApp group, we quite often uploaded funny things that had happened on the CCTV.

These were underage (indistinct)? --- Yeah, they were quite young.

And they grabbed a beer? --- They grabbed a beer before I could – I walked over as soon as they opened the fridge.

But you uploaded the footage of this to Facebook? --- I talked to Mr Williams about it.

MR WILLIAMS:  He never talked to me - - -

THE DEPUTY PRESIDENT:  What did you say to Mr Williams about that? --- We were having a joke.  It was a common thing on the WhatsApp.

What did you say – in direct speech? --- I believe we were just talking about that it was quite funny that they decided to come in and grab their dad a beer.  It was very harmless.  I admit it's quite a silly thing to do and I've taken it down since.  It's not public any more.

1. It is nothing short of ludicrous to suggest that filming “quite young” minors accessing alcohol and uplifting the footage to Facebook is a bit of fun. I have no doubt Mr Williams gave no permission for such action. The above extracted passage is yet another example of the Applicant grasping at excuses for his unacceptable conduct.

Factual Findings

1. The Applicant was only employed for 14 months on a casual basis. Throughout his employment there were instances of him making inappropriate comments to customers and co-workers. In his evidence the Applicant partially conceded some substance in relation to each incident, even describing on as “banter”[8]. These included:

(a)Repeatedly making comments to a co-worker regarding body odour in a demeaning manner;

(b)In late November or early December 2024, saying to a female customer who had a bottle of vodka, “Are you going to neck that right now?”. That customer was extremely offended and telephoned Mr Williams later that evening in tears;

(c) On 28 February 2025, in response to a request by an elderly male customer for a case of beer from the cool room, on return from the cool room the Applicant repeatedly said to the customer “give me a  bit of sugar” and to “put a little extra on it” (meaning to say please) or the customer would not get the case of beer. The customer and left without purchase. The Applicant’s evidence regarding this incident was:[9]

…I believe I asked the gentleman to just say 'Please'.  I did indeed use the term 'Sprinkle some sugar on it.'  I'm not sure if that confused the gentleman.  It's a very casual way of saying, you know – when he asked me to clarify, I said, 'You can just use your manners.'… 

When Mr Williams discussed the incident with him, the Applicant admitted that his 

response was excessive and that he was going through some things in his personal life that caused his extreme reaction. Mr Williams told the Applicant his unacceptable behaviour could not happen in the workplace; and

(d)On 17 April 2025, Mr Williams overhead a heated discussion between the Applicant and another co-worker. The Applicant was taking issue with how the co-worker was stocking fridges, and spoke with Mr Williams. On the 19 April 2025, Mr Williams asked the co-worker if everything went ok on 17April. The co-worker explained he had been verbally abused by the Applicant. The co-worker advised Mr Williams that “I’m scared of him, I don’t want to work with him.”

1. Mr Williams and the Applicant subsequently discussed the incident. The Applicant admitted to calling the co-worker a “fucking liar” on 17 April 2025. Yet again the Applicant stated that he was going through “a lot of family shit right now” and that was the reason he lost his temper.

1. On 26 April 2025, the Applicant approached Mr Williams to discuss events of 17 April 2025, and his verbal altercation with his co-worker. The Applicants’ focus was for disciplinary action to be taken against the co-worker for not re-stocking fridges properly. The Applicant also alleged that he believed the co-worker to be on a higher wage than him and demanded to see hard copy pay slips of the co-worker. The Applicant went on to make more derogatory comments regarding the co-worker including “he is a protected species”.

1. Upon returning home, Mr Williams realized the Applicant posed a psychological risk not only to customers and other employees, but also to himself. To discharge his primary duty of care to other employees under work, health and safety legislation, Mr Williams felt the Applicant could not work for the Respondent, particularly on days that Mr Williams could not be there. In cross-examination, Mr Williams’ evidence was:[10]

Mr Williams, when did you first decide my conduct was serious enough to dismiss me? --- Probably about the – some time between 20 April and the 26th.  It was - - -

And you'll be able to - - -? --- Sorry, can I finish?  I was undertaking to investigate allegations made by [co-worker].  It was then made wholeheartedly on the 26th, the evening of the 26th after I got home.  That was when I've decided – because it was originally going to be a written warning, and then I was going to dismiss you under whatever laws of saying I'd give you one or two weeks, but then, after the conversation with me on the 26th, I went home and I made that immediate decision that you would be terminated without warning.

We had a conversation on the 26th? --- Yes.

But it wasn't immediate, it was going to happen the next day? --- Yes.

Okay? --- That was – yes.

Which specific incident was the original reason for my dismissal? --- Well, I believe it's a combination, but certainly the clincher was your behaviour towards me as your manager and employer because I felt under threat.

1. On the evening of 26 April 2025, Mr Williams consulted and completed the SBFDC. His evidence was:[11]

Yet I wasn't fired on the 26th, I was fired on the 27th? --- No, because I wanted to make sure that I was going to do it the right way, which is why I went home, I consulted my written warning, dated it.  I then consulted the Small Business Checklist to pursue that I'd done the right thing and came in the next day.

1. On 27 April 2025, Mr Williams attended the shop while the Applicant was on shift. His wife came with him as he was concerned that Police involvement might be necessary. Mr Williams asked the Applicant to enter the office and let him know that he was being dismissed effective immediately. The Applicant replied “No, that’s horseshit”, and “I thought we had sorted it out yesterday”. Mr Williams responded, “I can’t get past this type of conduct”. A customer entered the store and Mr Williams moved to the counter area to serve her. The Applicant turned to Mr Williams’ wife and stated, “are you here to hold his hand?”. Mr Williams’ wife responded “no, just here to make sure you keep your anger in check”. The Applicant turned to Mr Williams and called him a “fucking coward”. The Applicant gathered his belongings and left the store.

1. In the meeting on 27 April 2025, a termination letter was provided to the Applicant which stated:

Written warning   Date: 26.04.2025

Mitch, it has been brought to my attention that you have recently acted in a manner that has intimidated another staff member. This appears not to be an isolated issue as I have also received notice of occasions where this has happened with customers. This kind of conduct is not tolerated under WHS legislation. Bullying in the workplace is unacceptable. Discourteous treatment of our customers, also unacceptable. A previous discussion was held regarding this but it appears the improvement in your conduct is not evident.

This is a first and final written warning regarding this matter.

Regards,

Nigel Williams
Owner North Avalon Cellars

Consideration

1. I accept that the Respondent was a small business. In the Application the Applicant claimed the Respondent had between 1 and 14 employees. In the Form F3 Employers Response, the Respondent provided that it had 7 employees.

1. The Code deals with dismissals separately in respect to serious misconduct and poor

performance. The Code provides:

The Code

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.

1. The Applicant was summarily dismissed. The Full Bench in Pinawin v Domingo,[12] considered the summary dismissal aspect of the Code at length, and held:

[29] We believe that the approach and observations in these two decisions are correct.
There are two steps in the process of determining whether this aspect of the Small
Business Fair Dismissal Code is satisfied. First, there needs to be a consideration
whether, at the time of dismissal, the employer held a belief that the employee’s conduct
was sufficiently serious to justify immediate dismissal. Secondly it is necessary to
consider whether that belief was based on reasonable grounds. The second element
incorporates the concept that the employer has carried out a reasonable investigation
into the matter. It is not necessary to determine whether the employer was correct in the
belief that it held.

[30] Acting reasonably does not require a single course of action. Different employers
may approach the matter differently and form different conclusions, perhaps giving
more benefit of any doubt, but still be acting reasonably. The legislation requires a
consideration of whether the particular employer, in determining its course of action in
relation to the employee at the time of dismissal, carried out a reasonable investigation,
and reached a reasonable conclusion in all the circumstances. Those circumstances
include the experience and resources of the small business employer concerned.

1. The question I need to consider in this case is whether Mr Williams believed on reasonable grounds that the Applicant’s conduct was sufficiently serious to justify his summary dismissal. In that consideration, I note the textbook application of the Code and the Small Business Checklist by Mr Williams, where he “consulted the Small Business Checklist to pursue that I'd done the right thing and came in the next day”.[13]

1. In the Form F3 Employers Response, the Respondent had provided that:

However, discussions regarding the serious misconduct was undertaken with the employee on the 26th April which resulted in the Applicant intimidating me as his manager, I decided to utilise the provision for dismissal without notice or warning made in the Small Business Fair Dismissal Code and checklist. This was done on the 27th April being the next shift the Applicant was rostered on without other employees present.

That is, that the Applicants serious misconduct met with dismissal without notice or warning on grounds that the employee’s conduct was sufficiently serious to justify immediate dismissal. This meant the steps 6-10 of the Small Business Checklist were undertaken but only to the extent reasonably practicable to do so under the circumstances. The risk of psychological harm by the Applicant to employees including myself was high.

1. In that circumstance, the Applicant’s conduct caused a serious and imminent risk to health and safety of persons, and the reputation of the Respondent’s business.[14]

1. The second matter to address is whether Mr Williams had ‘reasonable grounds’ to believe the Applicant’s conduct was sufficiently serious to justify his dismissal. The meaning of ‘reasonable grounds’ in the Code is that the grounds are ‘reasonable’ when viewed from the standpoint of what a reasonable person would conclude as grounds which are credible, sensible, logical or plausible.[15]

1. On the facts I have found to exist, it is entirely unremarkable that Mr Williams concluded that he had reasonable grounds for believing the Applicant’s conduct was such as to justify instant dismissal. From those circumstances, I am comfortably satisfied that Mr Williams, and the Respondent, had reasonable grounds to believe that the Applicant’s conduct was sufficiently serious to justify his immediate dismissal, and there were reasonable grounds for the employer holding that belief.

1. The Respondent complied with the Code in respect to the dismissal of the Applicant.  Accordingly, as the dismissal was consistent with the Code, the Applicant was not unfairly dismissed for the purposes of s.385 of the Act, and the Commission has no jurisdiction to deal with the Application.

1. The Application must be dismissed. Orders to that effect will issue simultaneously with this Decision.

DEPUTY PRESIDENT

Appearances:

Mr M Bevan, the Applicant
Mr N Williams, on behalf of the Respondent.

Hearing details:

14 August 2025.
Sydney.
In-person.

[1] (2005) 149 IR 80; [2005] NSWIRComm406.

[2] [2014] FWC 8402, [27]; [2014] FWC 4887, [32].

[3] [2014] FWC 4887.

[4] [2014] FWC 4887, [29].

[5] Transcript PN334.

[6] Transcript PN 211 to 219.

[7] Transcript PN 253 to 266

[8] Transcript PN521.

[9] Transcript PN191.

[10] Transcript PN 320 to 325.

[11] Transcript PN 387.

[12] (2012) 219 IR 128.

[13] Transcript PN 387.

[14] Fair Work Regulations 2009. Reg. 1.07(2)(b).

[15] Construction, Forestry, Mining and Energy Union v HWE Mining Pty Limited[2011] FWA 8288.

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