Mrs Caroline Clare Cupitt v Roper Gulf Regional Council - [2025] FWC 1725

[2025] FWC 1725

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mrs Caroline Clare Cupitt
v

Roper Gulf Regional Council

(U2024/13200)

COMMISSIONER RIORDAN

SYDNEY, 27 AUGUST 2025

Application for an unfair dismissal remedy

On 4 November 2024, Mrs Caroline Clare Cupitt (the Applicant) filed an application with the Fair Work Commission (the Commission) seeking a remedy for her alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant stated that she was employed by Roper Gulf Regional Council (the Respondent) from 26 July 2021 until the date of her dismissal on 4 November 2024.

In its Form F3 – Employer Response, the Respondent provided that, following an investigation, the Applicant was dismissed for inappropriate use of the ‘Aged Care Provider Portal’.

The Applicant’s employment with the Respondent was covered by the Local Government Industry Award 2020.

Background

At the time of her dismissal, the Applicant was employed by the Respondent as Program Manager.

The Applicant had also acted in higher duties as Acting General Manager Council Services & Community Engagement, most recently from 16 May 2024 to 20 August 2024.

The Applicant was relieved of her higher duties role on 20 August 2024 at the CEO’s direction, and she returned to her normal position.

From 18 August to 8 September 2024, the Applicant was on Gardening Leave. From 9 September to 20 September 2024 the Applicant was on approved annual leave. The Applicant was then on sick leave (with and without pay/also accessing annual leave provisions due to lack of sick leave entitlements) from 21st September to 4 November 2024.

On 28 October 2024, the Respondent issued a Show Cause letter to the Applicant as follows:

“Dear Clare,

RE: Show Cause

Please accept this letter as formal advice that Roper Gulf Regional Council has commenced a show cause process in relation to your employment.

You are requested to show cause in relation to allegations of serious misconduct relating to the inappropriate use of your Aged Care Provider Portal approval privileges.

Specifically, it is alleged that:
1.On the 9" September 2024, whilst on approved leave, that you, as the Program Manager, (Portal User ID A75967) accessed the Aged Care Provider Portal and rejected the new user request submission for Anika Tabassum Alam (Aged Care and Disability Manager). The unauthorised new user request rejection resulted in the Aged Care and Disability Manager’s inability to perform her lawful duties with regards to the health and wellbeing of vulnerable aged care clients and severely disrupted Council’s ability to meet strict compliance requirements.
2.Once Anika Tabassum Alam (Aged Care and Disability Manager) had gained the required access, via the Aged Care Provider Portal Help Desk, her access was subsequently and deliberately revoked.

3.It is alleged that the user account of the then Acting Chief Executive Officer of Roper Gulf Regional Council, Mr. David Hurst, was deleted from the Aged Care Provider Portal. This unauthorised deletion was confirmed by the Aged Care Provider Portal Help Desk. This deletion allowed others to maneuver [sic] within the Aged Care Provide Portal without due oversight.

Further investigation noted, that at the time, only you had the privileges of Granting, Rejecting, Deleting or Revoking user access to the Aged Care Provider Portal.

The Council is obligated to the Commonwealth Department of Health and Aged Care, which includes the Medicare Benefits Schedule (MBS), to report any suspected malfeasance to the Australian Federal Police for further investigation.
Prior to reporting the matter to the authorities, Council is interested in hearing your version of events.
Response Required
You are hereby provided with the opportunity to respond to the above allegations of serious misconduct and to show why Roper Gulf Regional Council should not consider taking disciplinary action against you, up to and including the termination of your employment.
You may respond to me in writing by close of business (COB) Wednesday, 30^th of October 2024. Please note that if you fail to provide a response within the timeframe provided, Roper Gulf Regional Council will be left to make a decision based on the information we have available.
Depending on the outcome of your response, disciplinary action may be taken and this may result in the termination of your employment.
Council provides a free EAP program; you can contact EASA on [redacted].
Should you wish to discuss this matter contact me on [redacted].
Yours sincerely,
Tony Hopp
Acting General Manager Council Services and Community Engagement”

The Applicant provided a response to the Show Cause letter, via her representative at the time, Mr Michael Grove from Ward Keller, on 30 October 2024 as follows:

“Dear Mr Hopp,

MRS CLARE CUPITT – YOUR LETTER DATED 28 OCTOBER 2024
We act on behalf of Mrs Cupitt in relation to your 'show cause' correspondence dated 28 October 2024.
We note that there are in effect two allegations made against our client.
As to the second allegation (paragraph numbered 3 of your correspondence), it is not apparent that that allegation is directed to Mrs Cupitt. Rather it appears to be a general assertion of an apparent state of affairs relating to Mr David Hurst but without reference to Mrs Cupitt's conduct at any time.
If it is to be alleged that Mrs Cupitt misconducted herself in this respect, full detail of the relevant alleged conduct is requested. As it stands, there is nothing for Mrs Cupitt to respond to. If there is no allegation in this respect against Mrs Cupitt, then the allegation should be withdrawn immediately.
In relation to the first allegation (paragraphs 1 and 2), we note that the only date referred to is 9 September 2024, more than 6 weeks ago, and this allegation does not contain the necessary specificity which would enable our client to adequately understand and then appropriately respond to the allegation.
It follows that Mrs Cupitt is not able to respond within the very short deadline proposed in your correspondence.
We have been instructed that Mr Hurst advised Mrs Cupitt on 25 September 2024 that there had been a data breach at the Council, and that further there have been multiple instances of data breaches at the Council.
Further, Mrs Cupitt has instructed us that she has notified the My Aged Care Provider Portal help desk of this matter. She has been advised that an investigation report will be sent to her work email. We request a copy of that report once it is to hand.
We seek the following further particulars of and relevant documents regarding the second allegations (allegedly accessing Aged Care Provider Portal and rejecting user request, alleged revocation of Anika Tabassum Alam's access and deletion of the Acting CEO's user account):

1.The date when the Council became aware of the alleged actions;

2.The dates when the alleged accessing and alleged revocation took place;

3.The date and details of how was access resumed and the alleged revocation reversed;

4.The details of any investigation undertaken of the allegations;

5.Whether the Council investigated the alleged actions as a data breach;

6.Whether the Council contacted the Commonwealth Department of Health and Aged Care in relation to the allegations;

7.The provision of a copy of any investigation report, the evidence obtained in that investigation if any, and any other document, evidence or statement concerning the allegations or its investigation, including copies of searches or analyses of computer or electronic records.

Mrs Cupitt will be in a position to provide her response after receipt of the requested particulars and documents.
Yours faithfully
WARD KELLER
MICHAEL GROVE
Partner”

The Respondent provided a response via their representative, Ms Cassandra Ellis, Cozens Johansen Lawyers, on 1 November 2024 as follows:

“Dear Mr Grove,

Ms Clare Cupitt - Employment matters

We are now instructed by Roper Gulf Regional Council (Council) and write in relation to your client, Ms Clare Cupitt.

Your letter of 30 October 2024

Your letter of 30 October 2024 was in response to our client’s show cause letter of 28 October 2024.

We note that your client did not offer any response or denial of the allegations in your letter, or requested more time for a response, but simply requested various additional information and particulars.

It is our client’s position that the allegations in the show cause letter were very clear as written, and no further information or material was necessary to permit your client an opportunity to respond.

In any event, our client’s investigations into matters that led to the show cause letter have been ongoing, as below.

Conduct Issues

We refer to our client’s ‘show cause letter’ of 28 October 2024, which set out 3 serious allegations about Ms Cupitt’s conduct.

Our client is content, based on enquiries to date, that Ms Cupitt took the following steps:

1.Whilst on approved leave, she accessed the Aged Care Provider Portal (Portal), and rejected a new user request submission by Ms Anika Tabussum Alam (Aged Care and Disability Manager) (allegation 1), without authority or valid reason to do so;

2.Following Ms Alam gaining access to the Portal, Ms Cupitt then revoked her access (allegation 2), without authority or valid reason to do so;

3.Deleted the user account of then Acting Chief Executive, Mr David Hurst, from the Portal, without authority or reason (allegation 3), without authority or valid reason to do so.

As touched on in the show cause letter, these actions by Ms Cupitt significantly hampered Council’s ability to properly function and fulfil various important obligations.

Our client has also confirmed / become aware of, respectively:

4.of numerous significant financial discrepancies in the Portal, where invoices have been claimed for services that clients did not utilize;

5.a significant lack of performance reporting (with reports neither submitted or created, and not stored in the Portal), in the area Ms Cupitt has been primarily responsible for, over a protracted period;

6.unprofessional behaviour by Ms Cupitt, whereby she has made disparaging remarks about Mr Hurst in the Council workplace on numerous occasions, which have been observed by other staff members;

7.significant discrepancies between E-tools provided that don’t match with Medicare claims submitted;

8.recent further Portal access revocations for Ms Alam and for another staff member, as of 28 and 30 October 2024.

Our client has brought these discrepancies to the attention of the appropriate entities and authorities, to ensure its ongoing good governance, and to ensure the confidential and financial interests of its clients and stakeholders is maintained.

Termination of employment

Due to the seriousness of these matters, and the significant detriment and risk caused to Council operations by the Portal access issues (as above), Council has determined to terminate Ms Cupitt’s employment.

Accordingly, Ms Cupitt’s employment is terminated, as of today 1 November 2024, and she will be paid three (3) weeks salary in lieu of notice in the next pay cycle on 7 November, 2024.

Ms Cupitt is to return all Council property including the Council vehicle and any Council documents, keys, passes, credit card etc to Acting General Manager Infrastructure Services and Planning, Luke Haddow. Ms Cupitt is also required to vacate the Council residence no later than 15 November, 2024. She should contact Luke Haddow on [redacted], no later than close of business on 4 November, 2024 to discuss the handover process.

Council formally reminds Ms Cupitt of her ongoing contractual obligations in relation to confidentiality, non-disparagement, intellectual property, per clauses 10 and 11 in her Employment Contract.

Ms Cupitt will receive accrued employment entitlements, including the payment in lieu of notice, with her final pay. If Ms Cupitt has questions regarding this letter or requires a Certificate of Service or Separation Certificate she may contact Acting Human Resources Manager, Mark Lewis on [redacted].

Yours faithfully
Cozens Johansen Lawyers
Cassandra Ellis”

The Applicant was issued a Termination Letter dated 4 November 2024, which provided:

“Dear Ms Cupitt,

Ms Clare Cupitt - Employment matters
I refer to our letter of 28 October 2024 in relation to your employment with Roper Gulf Regional Council (Council), and the response we received from your lawyer, Mr Grove, on 30 October 2024.
Letter of 30 October 2024
We note that you did not offer any response or denial of allegations set out in our letter, or request more time for a response, but that the lawyer simply requested various additional information and particulars.
It is our position that the allegations in the show cause letter were very clear as written, and no further information or material was necessary to permit you to understand what was being alleged or provide a fair opportunity to respond.
In any event, our investigations into matters that led to the show cause letter have been ongoing, as below.
Conduct Issues
Our ‘show cause letter’ of 28 October 2024 set out 3 serious allegations about your conduct.
We are content, based on enquiries to date, that you took the following steps:

1.Whilst on approved leave, you accessed the Aged Care Provider Portal (Portal), and rejected a new user request submission by Ms Anika Tabussum Alam (Aged Care and Disability Manager) (allegation 1), without authority or valid reason to do so;

2.Following Ms Alam gaining access to the Portal, you then revoked MS Alam’s access (allegation 2), without authority or valid reason to do so; and

3.You deleted the user account of then Acting Chief Executive, Mr David Hurst, from the Portal, without authority or reason (allegation 3), without authority or valid reason to do so.

As touched on in the show cause letter, these actions significantly hampered Council’s ability to properly function and fulfil various important obligations.
We have also confirmed / become aware, respectively:

4.of numerous significant financial discrepancies in the Portal, where invoices have been claimed for services that clients did not utilize;
5.a significant lack of performance reporting (with reports neither submitted or created, and not stored in the Portal), in the area you have neem [sic] primarily responsible for, over a protracted period;

6.unprofessional behaviour by you, whereby you have made disparaging remarks about Mr Hurst in the Council workplace on numerous occasions, which has been observed by other staff members;

7.significant discrepancies between E-tools provided that don’t match with Medicare claims submitted;

8.recent further Portal access revocations for Ms Alam and for another staff member, as of 28 and 30 October 2024.

We have brought these discrepancies to the attention of the appropriate entities and authorities, to ensure ongoing good governance, and to ensure the confidential and financial interests of our clients and stakeholders are persevered and maintained.

Termination of employment

Due to the seriousness of these matters, and the significant detriment and risk caused to Council operations by the Portal access issues (as above), Council has determined to terminate your employment.

Accordingly, your employment is terminated as of today 4 November 2024, and you will be paid three (3) weeks salary in lieu of notice in your next pay cycle on 7 November 2024.

You are to return all Council property including the Council vehicle and any Council documents, keys, passes, credit card etc to Acting General Manager Infrastructure Services and Planning, Luke Haddow. You are also required to vacate the Council residence no later than 15 November 2024. You should contact Luke Haddow on [redacted], no later than close of business on 5 November 2024 to discuss and facilitate the handover process.

Council formally reminds you of your ongoing contractual obligations in relation to confidentiality, non-disparagement, intellectual property, per clauses 10 and 11 in her Employment Contract.

You will receive accrued employment entitlements, including the payment in lieu of notice, with your final pay. If you have questions regarding this letter or require a Certificate of Service or Separation Certificate you may contact Acting Human Resources Manager, Mark Lewis on [redacted].

Yours faithfully
David Hurst
Chief Executive Officer”

The matter was Part-Heard in Darwin on 18 March 2025. The parties were granted leave pursuant to s.596 of the FW Act to be represented at the Hearing. The Applicant was represented by Mr Lucio Matarazzo, Industrial Relations Consultant, Lucio Matarazzo Pty Ltd, and Mr Eric Withnall of Withnall Halliwell. The Respondent was represented by Mr David Alderman and Mr Patrick Cozens of Cozens Johansen Lawyers.

The Applicant gave evidence on her own behalf at the Hearing. Mr Fred Williams, family friend, also gave evidence for the Applicant.

Mr David Hurst, Chief Executive Officer, gave evidence for the Respondent at the Hearing.

Closing submissions were held over, pending an investigation and response by Services Australia in relation to the removal of Mr Hurst from the Portal.

Following receipt of this information from Services Australia, a Directions Conference was conducted by telephone on Wednesday, 18 June 2025.

Formal Directions were issued following the Directions Conference for filing of written closing submissions.

Statutory Provisions

The relevant sections of the FW Act relating to an unfair dismissal application are:

“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.  
 

381 Object of this Part  
(1) The object of this Part is:  
(a) to establish a framework for dealing with unfair dismissal that balances:  
(i) the needs of business (including small business); and  
(ii) the needs of employees; and  
(b) to establish procedures for dealing with unfair dismissal that:  
(i) are quick, flexible and informal; and  
(ii) address the needs of employers and employees; and  
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.  

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.  
Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.  
382 When a person is protected from unfair dismissal  
A person is protected from unfair dismissal at a time if, at that time:  
(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. 

384 Period of employment  
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.  
(2) However:  
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:  
(i) the employment as a casual employee was on a regular and systematic basis; and  
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and  
(b) if:  
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and  
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and  
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised; the period of service with the old employer does not count towards the employee’s period of employment with the new employer.  

 
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.  

see section 388.  
387 Criteria for considering harshness etc.  
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:  
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); 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.”

Applicant’s Submissions

Valid Reason

The Applicant submitted that the “so called investigation findings” by the Respondent are not credible, are fanciful, flawed and have come about in the manner as explained by Commissioner Cambridge in the decision of Joshi v Panasonic Australia Pty Ltd[2010] FWA 2946 as follows:

“[45] In these circumstances the meetings were little more than a mechanical process held to satisfy a technical requirement and provide the appearance that a proper process had been followed. The applicant could say or do nothing that would have had any likelihood of changing the pre-determined outcomes. Similarly, the formal written warnings that were issued at the conclusion of these meetings were an integral part of the pretence.
…

[59] The process that the employer adopted involving disciplinary meetings that had predetermined outcomes and pre-prepared warning documents was seriously flawed such that the applicant was denied natural justice. Although the applicant was provided with various opportunities to respond to allegations made against him the employer acknowledged that any response provided by the applicant would be ignored…”

The Applicant submitted that the Respondent’s investigation was a “flawed deficient and unfair clandestine investigation” and that she was not afforded procedural fairness.

The Applicant cited the Full Court of the Federal Court of Australia decision in Edwards v Giudice [1999] FCA 1836, stating that it confirms employers must determine professionally whether the alleged conduct did occur, not simply accept claims of persons who may be stating the claims for ulterior motives.

The Applicant submitted that employers must ensure investigations into work incidents are free from bias and afford procedural fairness to the employee involved. The Applicant submitted that a flawed misconduct investigation has been found to render a termination of employment invalid.[1]

The Applicant also referred to s.172(c) of the Local Government Act 2019 (NT) (LG Act), which provides that:

“the council's staff must be treated fairly and consistently and must not be subjected to arbitrary or capricious decisions…”

The Applicant submitted that the Respondent’s conduct in effecting her dismissal was arbitrary and capricious.

The Applicant cited the decision in Gates v Blugibbon Pty Ltd[2021] FWC 6143, which involved an allegation that the Applicant deleted a virtual drive:

“[64] In the present case, the mere fact that Mr Gates deleted a virtual drive on his corporate laptop was not a valid reason for dismissal.
[65] Therefore, none of the reasons for dismissal stated to Mr Gates on 29 or 30 April 2021 were valid reasons for dismissal.
…
[73] The report quantifies Blugibbon’s suspicions but does not actually establish that any wrongdoing by Mr Gates. Mr Whitaker knew that there was log in and download activities that made him suspicious about Mr Gates’ actions and intentions. The report simply provides dates and times of the log in and download activities. The suspicion held by Mr Whitaker was that Mr Gates was accessing and/or taking Blugibbon’s confidential information when he undertook the log in and downloading activities. However, the report does not identify any particular files that Mr Gates copied or stole or even that files were copied or removed from the laptop. The expert speculated about why a folder called “New Folder” was created on the Desktop, but this part of the report is no more than speculation.
[74] Even though the report was not finalised until 3 weeks after dismissal, none of the activities described in the report, of themselves or even in total, constitute a valid reason for dismissal.”

The Applicant submitted that in this decision, Easton DP confirms that “suspension [sic] and or speculation, be it arbitrary, capricious or otherwise, is not a valid reason to dismiss an employee”.

The Applicant submitted that all of the reasons for dismissal relied on by the Respondent are not true, and the Applicant has not engaged in serious misconduct or misconduct. The Applicant referred to the Termination Letter and submitted that “points number 4, 5, 6, 7 and 8 which are spurious, devoid of actual specifics, are further examples of spiteful and capricious conduct by the Respondent in this matter”.

The Applicant submitted that she should have been provided a full opportunity to review the particulars of these allegations and to provide a full response to the particulars. The Applicant again stated that she has not been afforded procedural fairness by the Respondent in effecting her dismissal.

In response to the dismissal letter, the Applicant submitted that prior to her dismissal, she had an unblemished employment record with the Respondent. The Applicant submitted that she:

“may have been seen as threat because she was a high performer in her employment and … she showed up her other underachieving colleagues who would have been envious of her high excellent work performance and were concerned at the high integrity and her probity in governance practices she sought from her employer the Respondent.”

The Applicant submitted that no formal warnings in compliance with s.387(e) of the FW Act were ever provided to her.

Further, the Applicant submitted that the decision to ‘unilaterally suspend’ her employment for no valid reason on 21 August 2024 was in contravention of s.172(c) of the LG Act, as extracted above. The Applicant submitted that her suspension was an unwarranted decision, unreasonable management action and contravened the following:

· sections 17, 18 and 19 of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT);
· the provisions of section 3A(2) in the Return to Work Act 1986 (NT); and
· section 789FC of the FW Act.[2]

Remedy

The Applicant submitted that the Commission should find that she was not dismissed for a valid reason and that her dismissal was unfair.

The Applicant seeks an award of the maximum compensation available pursuant to s.392 of the FW Act.

Respondent’s Submissions

In response, the Respondent submitted that:

a.the Applicant’s dismissal was not harsh, unjust or unreasonable, and was in fact a reasonable and proportionate outcome, based on conclusions the Respondent reached on evidence before it, to the Briginshaw standard;
b.the Applicant’s demonstrated pattern of inappropriate conduct and misconduct in the lead up to her dismissal was cumulative, and serious, and eroded the Respondent’s trust and confidence in her;

c.the Respondent had formally counselled the Applicant on her conduct numerous times prior to her dismissal, but the Applicant’s conduct did not improve and in fact become more problematic;

d.this pattern of conduct, and the Respondent’s resultant and objectively reasonable misapprehensions, caused it to assess unauthorised problematic actions taken on its database by the Applicant’s Administrator account as very likely to be taken by the Applicant;

e.In the lead up to and at the time the Respondent dismissed the Applicant, the Respondent could not find any plausible alternative scenario where the unauthorised database actions were not taken by the Applicant;

f.on assessment of the Applicant’s evidence, and the entirety of the evidence, the Respondent’s position on that has not changed and it submits there is no evidence to support any plausible alternate scenario, nor is there any plausible alternate scenario;

g.taken as a whole, the known and potential risks the Applicant’s demonstrated and probable conduct posed to the Respondent, and the community, were significant and serious;

h.those risks included wide ranging operational and financial risks, as well as risks to the health of elderly community members the Respondent is responsible for via its Aged Care program;

The culmination of the above factors comprise the reasons the Respondent dismissed the Applicant.

The Respondent submitted that, on a considered review of the evidence as a whole and the level of risk posed to the Respondent as a result of the Applicant’s conduct, the Commission should determine that the Applicant’s dismissal was not unfair.

Valid Reason

The Respondent noted that the reasons relied on in terminating the Applicant are as detailed in the Termination Letter of 4 November 2024 (extracted at paragraph [11] of this decision).

The Respondent submitted that, in context, its reasons for dismissing the Applicant were sound, defensible and well-founded, and is supported by its evidence filed in these proceedings.

Whilst the Applicant has submitted that the Respondent’s ‘investigation findings’ were ‘not credible, fanciful, flawed’ and also ‘deficient’ and ‘clandestine’, the Respondent submitted that there was no ‘investigation’ as such. Rather, the Respondent relied on a pattern by the Applicant of inappropriate conduct, which was cumulative and eroded the Respondent’s trust, leading to an “active and well based mistrust”.

(My emphasis)

The Respondent relied on the witness statement of Mr David Hurst, CEO, which describes the behaviour of the Applicant that eroded the Respondent’s trust and confidence, including:

a.The Applicant essentially refused to engage in a process initiated by the CEO to get business unit reporting up to date…;
b.The Applicant repetitively made inappropriate demands of the Respondent’s finance manager, despite being actively counselled by Mr Hurst not to do so…;

c.The Applicant failed and/or refused to attempt to develop a collaborative relationship with the finance manager, and other key Respondent staff and stakeholders…;

d.Importantly, the Applicant’s ‘administrator’ account was the only account with sufficient permissions (aside from the CEO’s) to revoke and delete user access, as happened on 8 September 2024 dates…;

e.deficiencies with the Applicant’s ability to create and maintain stakeholder relationships, manage staff and be culturally competent, which the Respondent’s CEO actively counselled her to try to improve in…;

f.the Applicant’s harsh and procedurally unfair management style, vindictiveness, malicious approach to those colleagues she did not like, inability to follow guidance and directions from HR…, and unwillingness to travel for community engagement - which she was given direct feedback that she needed to improve by the CEO…;

g.the Applicant’s failure to improve in those areas set out above, despite the counselling by the CEO, and including an increased unwillingness by the Applicant to undertake the remote travel necessary for the role…;

h.the Applicant’s manner of directly expressing disdain towards the CEO in relation to disciplinary processes, where the Applicant was critical of approaches she felt were not harsh enough…;

Broken / untenable relationships between the Applicant and various key Council staff, including the Finance Manager,… the Human Resources Manager,… the General Manager of Corporate Services…;

j.The Applicant’s manner of speaking about other staff negatively, in front of other colleagues, and which caused distress to her colleagues. Mr Hurst has set out numerous and serious instances of this in his statement;...

k.The Applicant making statements on or around 23 August 2024, before multiple witnesses, that were reported back to the Respondent’s CEO, to the effect she, “intended to destroy Council” “wanted to do as much damage as possible to the CEO and the Mayor”;

l.The reporting discrepancies as set out in the Termination Letter, and which are detailed at paragraphs 99-102 of David Hurst’s statement, whereby the Applicant had advised the CEO directly that Performance Reports had been lodged, but the Sharepoint site those reports should have been in was actually empty….

Notified of the Reason

The Respondent submitted that the Applicant was notified of the reasons for her dismissal via the Termination Letter of 4 November 2024.

The Respondent acknowledged that the reasons provided in the Termination Letter may not be “all inclusive” in terms of the cumulative, overall pattern of the Applicant’s “problematic conduct” that led to her dismissal. However, the Respondent submitted that the Termination Letter did notify the Applicant of the dismissal reasons in a clear and cogent manner.

Opportunity to Respond

The Respondent submitted that it sent the Applicant a Show Cause Letter on 28 October 2024, which requested a response by 30 October 2024.

The Respondent submitted that whilst the Applicant has stated that the Show Cause Letter provided what may have been considered a ‘short time’ for her response, the allegations put in that letter were clear, straightforward and simple. The Respondent submitted that if the Applicant wished to deny she was guilty of the portal access breaches alleged by the Respondent, all that was required of her was to respond and say words to the effect “I did not do it, that was not me.” The Respondent submitted that the Applicant did not make that denial.

The Respondent submitted that if there was some reason that meant the Applicant needed more time to consider her response, then it was open to her to request more time for her response.

The Respondent submitted that the Applicant did not deny the allegations put to her, nor did she request more time for a response. Instead, via her lawyer, the Applicant asked for ‘particulars’ of the allegations in the Show Cause Letter.

Prior Warnings for Unsatisfactory Performance

The Respondent submitted that its Governance and Compliance Manager counselled the Applicant and Ms Mikkilineni as to their making vexatious statements and telling malicious lies against other staff.

The Respondent submitted that Mr Hurst discussed with the Applicant the reasons for his decision that she would cease higher duties and explained that it was due to her propensity to be vindictive.

The Respondent submitted that on 30 April 2024, Mr Hurst spoke with the Applicant in regard to her being Acting General Manager from 30 April 2024 to 15 May 2024. The Respondent submitted that Mr Hurst explained that the Applicant needed to improve her relationships with staff, stakeholders and elected members and that she needed to travel through the communities. The Respondent submitted that these issues were discussed again on 20 August 2024.

Any Other Matters

The Respondent submitted that the Commission should also give consideration to the fact that the Applicant has caused serious disruption to the Respondent’s processes by excluding Mr Hurst from being an administrator of the Government Portals. The Respondent submitted that it has been unable to gain entry to the portals since the Applicant’s act of 9 September 2024 when the Applicant deleted Mr Hurst from being an administrator of the right to access the Government portals.

Remedy

The Respondent noted that the Applicant seeks the ‘maximum compensation’ in accordance with s.392 of the FW Act.

As to the matters that must be taken into account when determining an appropriate quantum of compensation, the Respondent made submissions as follows:

· The Applicant was entitled to $65.1779 per hour. The period between the termination date and the date of hearing is 19 weeks and 1 day or 729.6 hours. In this case, the Applicant would have received $47,553.80 gross up to the date of the hearing before the Commission;

· The Applicant has not filed any evidence of attempts to mitigate her loss via finding other work, or the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation;

· There is no evidence of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and

· As to ‘any other matter the Commission considers relevant’, the Commission should have regard to the misconduct carried out by the Applicant and make a substantial negative adjustment to any compensation to be awarded.

Applicant’s Submissions in Reply

The Applicant submitted that Mr Hurst, via his witness statement filed in these proceedings, has “engaged in constant significant unwarranted disparagement of the Applicant … and also has contravened section 172(c) of the [LG Act]…”.

The Applicant contended that Mr Hurst has:

“• Made vexatious allegations against [her];

· Conducted the investigations in a grossly unfair and arbitrary and capricious manner against [her] rendering his claim that there are valid reasons for a dismissal to be arbitrary and capricious and without credibility.”[3]

The Applicant submitted that a ‘valid reason’ should be justifiable on an objective analysis of the relevant facts.[4] The Applicant submitted that Mr Hurst has failed to meet this test and her dismissal was therefore “invalid, harsh, unjust and unfair”.

Further, the Applicant referred to ‘disparagement commentary’ and other commentary by Mr Hurst in his witness statement, and submitted that his evidence is not credible. The exact paragraph references have been omitted from this decision. However, in relation to various paragraphs of Mr Hurst’s evidence, the Applicant submitted that his statements are “unsubstantiated hearsay, opinion, assumption and commentary by Mr David Hurst [and] should be deemed inadmissible by the…Commission and should be struck out based on the Jones v Dunkel inference…”.

The Applicant submitted that paragraphs 31-45 of Mr Hurst’s witness statement do not prove that the Applicant has engaged in serious misconduct, rather, it is a narrative created by Mr Hurst to “seek to fit the make believe narrative that Mr David Hurst and the Respondent -

• have sought to make a silk purse out of a sow's ear.
• are claiming that "two plus two equals five" ("2 + 2 = 5") as stated in chapter seven of the book 1984 by George Orwell.”

Further, the Applicant submitted that Mr Hurst’s evidence shows that he:

“…may be threatened by the Applicant’s Mrs Clare Cupitt exemplary work performance and he disparages and puts her down and undermine Mrs Clare Cupitt because it is contended that he is concerned otherwise about his own inadequacies which will be exposed.”

The Applicant submitted that Mr Hurst’s evidence and commentary in this regard should be ‘struck out’ based on a Jones v Dunkel inference.

The Applicant referred to paragraph 65 of Mr Hurst’s statement, submitting that this is an example of capricious conduct where Mr Hurst has decided on arbitrary grounds not to extend the Applicant’s higher duties and has instead “picked one of his favourites and offered the promotion of the acting position to one his loyal favourites, Mr Tony Hopp the HR Manager”. The Applicant quoted Mr Hurst’s statement at paragraph 65 as follows:

“During this meeting, I received feedback from the Mayor that Clare's interactions with community members and stakeholder was problematic. That in his view, she needed to vastly improve her relationships with stakeholders. At no time did the Mayor direct me to take any action against Clare or provide an opinion on what I should do as her manager - this was simply feedback.”

The Applicant submitted that this evidence is “spurious and without foundation”, is “not credible and should be struck out based on the Jones v Dunkel inference…”. The Applicant submitted that this evidence demonstrates that Mr Hurst is “full of glee when he dishes out retribution towards capable and exemplary employees like the Applicant”.

The Applicant submitted that Mr Hurst’s evidence seeking to justify why she was put on gardening leave are ‘nonsensical’, demonstrate there was no valid reason, and show that Mr Hurst has contravened s.172(c) of the LG Act.

The Applicant referred to various other paragraphs of Mr Hurst’s witness statement, submitting that his evidence is “not credible”, “fanciful”, “exaggerated”, “derogatory” and in relation to a number of statements, should be struck out on a Jones v Dunkel inference. These lengthy submissions have not been repeated here.

The Applicant maintained that the Respondent cannot prove that she has engaged in misconduct, serious or otherwise, and has not met its obligation to afford her with procedural fairness. Relevantly, the Applicant noted that in her Termination Letter, the Respondent relied on allegations including that while she was on approved leave, she accessed the Aged Care Provider Portal and deleted the user account of Mr Hurst. The Applicant noted that in correspondence to the Commission on 19 February 2025, the Respondent stated that no cyber security report existed, and that no investigation report existed ‘yet’. The Applicant submitted that the Respondent had not produced any evidence of the IP address of the device used to remove Mr Hurst, and that she was used as a ‘scapegoat’.

The Applicant maintained that no warnings were ever formally provided to her. The Applicant reiterated that her work performance with the Respondent was exemplary and that she performed at “diligent professional high standards”.

For all of these reasons, the Applicant maintained that she was dismissed “invalidly, harshly and unjustly”.

Remedy

The Applicant maintained that she seeks the maximum compensation available to her pursuant to s.392 of the FW Act.

As to the matters that must be taken into account in determining the quantum of any award of compensation, the Applicant provided submissions as follows:

· The Applicant was paid 3 weeks’ notice on termination;

· The Applicant was earning an annual salary of $128,791.45 plus superannuation with the Respondent, and would have been entitled to a percentage increase if she was still employed;

· The Applicant was earning $109,765.12 per annum plus superannuation from 30 January 2025 onwards;

· The Applicant started a new role on 20 March 2025, and is now earning a rate equivalent to her annual income from the Respondent.

However, the Applicant also submitted that whilst employed by the Respondent, she enjoyed additional benefits as follows:

· Housing was provided by the Respondent, specified in her contract as being to the value of $15,000 per annum; and

· A Council vehicle was provided by the Respondent including for private use.

The Applicant submitted that, taking into account all of the above matters, she seeks an award of 19 weeks’ pay at $47,073.66 (gross) plus superannuation at $5,178.10.

Applicant’s Closing Submissions

No valid reason for dismissal

In closing, Mr Withnall submitted that the Respondent has relied on the Applicant’s dismissal being for the following reasons: the Applicant’s role in creating the tensions that purportedly came to exist within the workplace (i.e. the ‘disparaging remarks’ allegation), along with the ‘password violation’, ‘portal sabotage’, ‘report failures’ and ‘witch hunt’ allegations. Each of these allegations are addressed below.

Mr Withnall submitted it is likely that the CEO and the Applicant came to have a tense relationship with one another. Mr Withnall submitted that the Applicant came to perceive the CEO to be incompetent and dishonest, while the CEO came to perceive the Applicant as disruptive. Mr Withnall submitted the extent to which these personal feelings were shared in the workplace is not clear on the evidence before the Commission; however, the Applicant’s evidence is that she maintained a professional attitude in the workplace. Mr Withnall submitted that there is no evidence of the Applicant’s conduct in this regard amounting to serious misconduct or misconduct of any kind.

Mr Withnall submitted that the CEO’s evidence, and demeanour under examination, indicated a level of hostility between him and the Applicant that did not arise explicably on his own evidence. Mr Withnall submitted it is open for the Commission to find that any dissension in the workplace could be just as much the fault of the CEO as any other staff member in the workplace – save for the additional leadership role the CEO is meant to play when it comes to cultivating a culture of respect and professionalism. Mr Withnall submitted that “[a]ny denial on his part of holding animus towards the applicant should be treated with suspicion”.

Portal sabotage allegation

Mr Withnall submitted that the Respondent’s claim that it had ‘properly investigated’ the interference with the portal is unsustainable in light of the way the investigation ultimately transpired – that is, following involvement of the Commission.

Mr Withnall submitted the Applicant’s evidence is that it would only have been possible for her to log in to the portal using the official Government two-factor authentication app, which would have left an audit-visible log. Mr Withnall submitted that the Applicant offered her phone to the Commission for inspection at the hearing and provided screenshots to show that there had been no such login activity. The other method to access the portal would have required access to her work email. Mr Withnall submitted that, likewise, this activity would have been detectable by Services Australia and the Respondent’s IT experts.

Mr Withnall submitted that the CEO’s evidence that the Applicant was never required to return her laptop or any other IT equipment invites suspicion. Mr Withnall submitted that none of the subsequent correspondence demands the return of laptops or other IT equipment, despite that being a commonplace demand in termination letters, especially those drafted by solicitors. Mr Withnall submitted that the absence of such a demand in the correspondence invites the inference that the issue of returning laptops and other IT equipment had already been dealt with.[5] Mr Withnall submitted that it is appropriate, on the balance of probabilities, for the Applicant’s evidence to be preferred on this issue.

Mr Withnall submitted the claim that the “evidence before the Commission is that Mr Hurst was not an administrator on 9 September 2024 or on 17 September 2024” is patently wrong and unsustainable in light of the response from Services Australia. Mr Withnall submitted that the Services Australia response confirms that Mr Hurst had access to the Aged Care Provider Portal (ACPP) and Provider Digital Access (PRODA) at all material times.

Mr Withnall submitted that the Respondent’s case has persistently ignored a fundamental part of the Applicant’s evidence, and one that the Respondent has not sought to dispute – that a login via either of the two means available to the Applicant would have left a record, either in the form of a One-Time Pass (OTP) emailed to her work email or a logged (i.e. audit-visible) use of the official Two-Factor Authentication (2FA) app. Mr Withnall submitted that the Services Australia response was not consistent with a login by the Applicant via either means – in fact, it did not even support a claim that any portal sabotage occurred.

Mr Withnall submitted that there is no evidence for the claim that the Applicant “could and did use her private phone to act as an administrator of the portal” within the timeframe alleged, i.e. on 9 September 2024, as claimed in the Show Cause Letter of 28 October 2024.

Mr Withnall submitted that while the full results of the Services Australia investigation are unknown, “one cannot imagine that they contradict the response provided to the Commission and thereby assist the respondent – if they did, the respondent would undoubtedly have sought their production”.

Further, Mr Withnall noted that the Applicant applied for the production of that further information. Mr Withnall submitted that the Respondent’s failure to do so invites an inference against them as what that information might have disclosed – i.e. that the Respondent never had a proper basis for making the allegations of serious misconduct relating to portal sabotage. Mr Withnall submitted that this should be of particular concern to the Commission, given the Respondent also made a police report in respect of the conduct.

Password sharing allegation

Mr Withnall submitted there is no evidence that a password policy operated in the workplace at the relevant times, or that it was enforced consistently such that a failure to abide by it would amount to grounds for dismissal. Mr Withnall submitted that Mr Hurst did not give evidence to that effect.

Mr Withnall submitted that sharing passwords for portals is a common practice in most workplaces and would not ordinarily amount to serious misconduct. Mr Withnall submitted that Mr Hurst has admitted to a “level of relative unsophistication in the workplace”, therefore, it is more likely than not that password sharing was tolerated in the workplace. Mr Withnall submitted that the attempt to reinterpret the confidentiality policy, so as to claim that there was a “strict” password sharing policy and therefore justified dismissal, lacks cogency.

Reporting failures allegation

Mr Withnall submitted that as indicated by the Culturally Directed Care Solutions Report, the reporting failures complained of were endemic in the workplace and predated the Applicant’s appointment to the role. Mr Withnall submitted that the CEO conceded during cross-examination that the standard of reporting had in fact improved under the Applicant’s management. Accordingly, Mr Withnall submitted that there was no conduct relating to the Applicant’s reporting which was capable of being described as ‘serious misconduct’.

Credibility of the respondent’s witnesses

Mr Withnall submitted that Mr Hurst admitted to having told a lie in order to support his claim that there was a valid reason for the Applicant’s dismissal. When asked about it in cross-examination, although Mr Hurst described it as an ‘error of judgment’, he also stated that he was, in his mind, trying to act in the best interests of Council.

Mr Withnall submitted that the Respondent’s other witnesses were not made available for cross-examination. Mr Withnall submitted that the extent to which they were aware of the CEO’s “admitted lie”, and chose not to say anything, would have had a significant bearing on their credibility had the Applicant been afforded the opportunity to cross-examine them. Mr Withnall submitted that their evidence should therefore be given limited or no weight except where it is directly supported by documentary evidence.

Mr Withnall submitted that despite having multiple opportunities to present evidence, the Respondent chose not to provide any evidence beyond the testimony of Mr Hurst for the following claims, which are crucial to their case:

“(a) the claim that Mr Hurst was told on the telephone that the applicant was responsible for his purported deletion from the portal – a claim also contradicted by the Services Australia response;

(b) the claim that the applicant ‘badmouthed’ the respondent at a private gathering prior to what the respondent regarded as the time of her formal termination;

(c) the claim that the manager responsible for the reporting failures described in the Culturally Connected Care Solutions report was forced to resign because of her conduct (and no other reason) and as an alternative to dismissal”.

Mr Withnall submitted that if the Commission is unable to make a positive finding in respect of the Applicant’s evidence about the actual reasons for her dismissal, it can at least make the finding that the Respondent’s standard of record-keeping was not consistently of a high professional standard, such that the records which are claimed by the Respondent to exist should not be presumed to be comprehensive records of the matters they describe. Accordingly, where the Applicant’s evidence is supported by records that are comprehensive, her evidence and general account should be preferred over that of the CEO.

Witch hunt allegation

Mr Withnall submitted that the Respondent’s case for the ‘witch hunt allegation’ appears to be underpinned solely by the existence of a performance management plan that was alleged to have been supervised by the Respondent. That is, the Respondent is asking the Commission to accept the existence of an “unsuccessful” performance management plan (which ultimately did not result in action being taken against the employee) as evidence of malicious intent against the employee.

Mr Withnall submitted that one would expect that a senior management employee committed to maliciously pursuing management action against an employee on false grounds would take care to leave a paper trail that supports their actions, rather than adhering strictly, objectively and honestly to the process in such a way that the employee does not face adverse action at the end (despite her purported true intentions of malice and fraud). Mr Withnall submitted that the Commission is entitled to reject claims out-of-hand that are both “contradictory and inherently unrealistic”.

Actual reason for dismissal

Mr Withnall submitted that the Applicant alleges that Mayor Tony Jack demanded from the CEO that the Applicant and her spouse be removed from community, “by way of the respondent CEO sacking the Applicant”. Mr Withnall submitted that the Respondent has not presented any positive evidence beyond the evidence of Mr Hurst that the Mayor did not visit him on or around the times alleged by the Applicant – for example, no diaries or visitor books were produced. Therefore, Mr Withnall submitted that the Commission only has the word of Mr Hurst to go on.

Mr Withnall submitted that it is therefore appropriate for the Commission to find that, on the balance of probabilities, there were other reasons for the dismissal of the Applicant than those disclosed by the Respondent throughout the proceedings.

Other factors which made the dismissal unfair

Mr Withnall submitted that the Show Cause and Termination Letters did not set out the grounds now relied upon by the Respondent. Mr Withnall submitted that the Show Cause Letter only related to the portal sabotage allegations, and it was not until the Termination Letter that the ‘financial discrepancy’, ‘report failures’ and ‘witch hunt’ allegations were raised, “albeit in a way that fundamentally lacked particularity and afforded no opportunity for response”.

Mr Withnall submitted that the ‘portal sabotage’ allegations were an effort to intimidate the Applicant due to the impact such severe allegations could have on her future employment prospects in the local government and NGO sector. Mr Withnall submitted that the:

“abject failure of the respondent’s case on this issue, given the grave seriousness of the allegations, deserves particular admonishment and sanction by the Commission – those allegations being such that they ought not be made unless clear and cogent proof is available to the person making the allegation”.

Mr Withnall submitted that there was no valid or cogent reason for the Applicant’s dismissal, and therefore, the Commission should award the maximum possible compensation allowable under the Act.

Respondent’s Closing Submissions

Mr Alderman submitted that the Respondent maintained it had valid reasons for the Applicant’s dismissal, relating to her capacity and conduct during the course of her employment.

Mr Alderman submitted that the Applicant failed in her duty to properly advise others, made disparaging comments about a number of fellow employees, and created stress and tension amongst her co-workers. Mr Alderman submitted that the Applicant took a dislike to the finance manager and Mr Hopp, and she maligned them amongst her peers. Mr Alderman submitted that the Applicant failed to create the reports the Council needed for its proper operation. Mr Alderman submitted that the Applicant also maligned the Mayor and Mr Hurst with respect to the decision that she would not continue with her higher duties. Further, Mr Alderman submitted that the Applicant interfered with the processes of the Council.

Conduct and Capacity

Mr Alderman outlined the Respondent’s reasons for the Applicant’s dismissal relating to conduct and capacity as follows:

· In July 2023, the Applicant failed to advise the finance team as to the information they required and what they needed to do to assist the Council with the preparation of missing Aged Care reports;

· During July 2023, Mr Hurst witnessed and was told of the Applicant making disparaging comments about the finance manager. The witness was distressed by the Applicant’s comments. Similarly, in late 2023 a worker expressed the comments that similar comments by the Applicant were causing distress and a safety risk. The Applicant failed to relate information to the finance manager. The Applicant’s behaviour delayed the preparation of reports;

· Mr Hurst counselled the Applicant who denied the lack of reports and then insisted the delay was the finance manager's fault;

· Mr Hurst decided the Applicant was not suitable for her employment position;

· The Council decided that the situation was serious enough to appoint an employee into a position to separate the Applicant and the finance manager;

· Ms Alam reported to Mr Hurst that performance reports were missing for over a 2-year period. This reporting was the Applicant's duty;

· Ms Alam showed Mr Hurst the documents were not where they were supposed to be, which was in the SharePoint database;

· In August 2024 the Applicant informed Ms Geer that she would go after Mr Topp over an incident that happened in May 2024;
· 23 August 2024 Ms Geer and others told Mr Hurst they were feeling threatened and harassed by the Applicant and her husband, demanding that they submit statutory declarations about the behaviour of the mayor and [Ms] Alam; and

· During August 2024, the Applicant was telling others she had been fired, stood down and disciplined and bullied by the mayor and the CEO regarding her being removed from higher duties.

Mr Alderman submitted that the behaviour of the Applicant in 2023 and 2024 was sufficient to justify Mr Hurst deciding there was a breakdown in the trust and confidence he had in the Applicant, and which justified him in arriving at the decision in 2024 that the Applicant’s employment with the Respondent should be terminated.

Misconduct

Mr Alderman submitted that during September 2024, Ms Alam, who was employed by the Council as an Aged Care and Disability Manager since 12 August 2024, advised Mr Hurst that her access to the Aged Care portal was rejected. Ms Alam provided copies of screenshots of the Aged Care Portal in her email of 22 October 2024.[6] Mr Alderman referred to a screenshot[7] which he submitted shows that Ms Alam had applied to be allowed a user of the portal on 13 August 2024 and was rejected from the Aged Care Portal on 9 September 2024. Another screenshot[8] provided by Ms Alam shows that she was made a user on 10 October 2024.

Mr Alderman submitted that there is no evidence before the Commission that Mr Hurst was an administrator and could join Ms Alam as a user. Mr Alderman submitted that, on the evidence, the Applicant was the only administrator of that Portal up to 22 October 2024. Mr Alderman referred to the reply of Services Australia, submitting that it demonstrates Mr Hurst was not added as an administrator until 3 December 2024.

Mr Alderman submitted that Mr Hurst participated in a telephone call with Ms Alam and the Help Desk for the Aged Care Portal on 17 September 2024. During that phone call, Mr Hurst was advised that he had been removed from the position of administrator in the portal system by someone else who was an administrator. Mr Alderman submitted that Ms Alam had asked the Help Desk person, “was it Clare Cuppit?” and the response was, “Yes”.[9]

Mr Alderman submitted this is important, as the identification of who denied Mr Hurst access also identifies the person who denied Ms Alam access to the Portal.

Mr Alderman submitted that the snapshot of the user summary at Annexure CHB 119, which was taken by Ms Alam on or before 22 October 2024, shows Mr Hurst was a user from 15 May 2023 and was scheduled to be so until to 8 October 2025. Mr Alderman submitted that this has been verified by Services Australia. Mr Alderman submitted that the snapshot, which was taken by Ms Alam before 22 October 2024, the date of her complaint, shows that Mr Hurst was not an “administrator” as at that date. Services Australia have stated Mr Hurst only became an administrator on 3 December 2024. Mr Alderman submitted, however, the Applicant is listed as the only administrator as of 22 October 2024, which enabled her to add, remove and change users to the portals.

Mr Alderman submitted that Ms Alam also provided the Council with a snapshot of the Aged Care Portal that showed she had been rejected as a user on 9 September 2024.[10] Mr Hurst was not an administrator on that date but was a user. Mr Alderman submitted that the only person who could reject the application by Ms Alam to be a user was the Applicant.[11]

Mr Alderman submitted that Mr Hurst thought the blocking of Ms Alam from the portal and his belief he had been removed as an administrator of the portal was very serious. Mr Alderman submitted that Mr Hurst accordingly took steps so that the Council’s insurers were notified, the Council engaged Cyber Security as investigators, and the Council notified the Federal Police and the Northern Territory Police.[12]

Mr Alderman submitted that Mr Hurst believed there were sufficient facts available to him to form the opinion that the Applicant was responsible for the blocking of Ms Alam’s access to the portal. He therefore issued the Applicant with a Show Cause Letter on 28 October 2024.

Mr Alderman submitted that there was an urgency in stopping the Applicant from having access to the portals as an administrator. Mr Alderman submitted that the Applicant had rejected an application by Ms Alam for no reason other than retribution or retaliation for the Council removing the Applicant from her higher duties position. Therefore, the Council had to find out with urgency “what the Applicant’s attitude was”.

Mr Alderman noted that the Show Cause Letter alleged that the Applicant had rejected Ms Alam as a user and revoked Ms Alam’s access.

Mr Alderman submitted that by 28 October 2024, Mr Hurst had properly investigated the circumstances as to who had incorrectly interfered with the portal; he had found on the balance of probabilities that the Applicant was ‘the culprit’.

Mr Alderman submitted that the evidence before the Commission shows that the Applicant, on the balance of probabilities, had denied Ms Alam access to the portal in September 2024.[13] Mr Alderman outlined that the evidence before the Commission is that Mr Hurst was not an administrator on 9 September 2024 or on 17 September 2024, and so he could not have rejected an application for admission to the portal by Ms Alam. Mr Alderman submitted that contrary to those statements, the Applicant said at PN93 and PN 277 of the transcript that she had access to the portal through her private phone. Mr Alderman submitted that the Applicant has agreed she did not need a password sent to her email address to access the internet in that way.

Mr Alderman submitted that the Applicant also had access to the phone grid from time to time during September 2024, when she was near the population centres of Mataranka, Kununurra, Katherine, Windum, Timber Creek and towns and petrol stations between Katherine and Kununurra.[14]

Mr Alderman submitted that the Applicant could and did use her private phone to act as an administrator of the portal. Mr Alderman submitted that “the Applicant used that power to vindictively damage the proper operation and running of the business of the Council whilst she was on holiday”. Mr Alderman submitted the Commission should not believe the Applicant’s claim that she did not access the portal in September 2024 to deny Ms Alam access to the portal.

Mr Alderman submitted that the Applicant was provided with notification of the reasons the Respondent was considering termination of the employment on 28 October 2024. Mr Alderman submitted that, via her lawyers, the Applicant provided a response to the Show Cause Letter which did not deny the allegations as to the misuse of the power the Applicant had over the users of the portal. Mr Alderman submitted that the Applicant chose not to meet the urgency of the threat of termination of her employment as she did not deny the allegations as to her wrongfully using her power as an administrator of the portal.

Mr Alderman submitted that Mr Hurst did not have to wait for the Applicant to decide when she would confront the allegations. Mr Alderman submitted that the first time the Applicant actually stated that she did not have access to the portal, did not have access to the internet and that she did not reject Ms Alam as a user of the portal was when she filed her witness statement in these proceedings.

Mr Alderman submitted that the evidence before Mr Hurst proved, on the balance of probabilities, the fact that Ms Alam was rejected as a user by the only person who was an administrator of the Aged Care Portal at the time, namely the Applicant. Mr Alderman submitted that Mr Hurst was then entitled to reach the conclusion that the act was serious misconduct, and that the act justified the Applicant’s dismissal.

Password

Mr Alderman submitted that at PN242 of the Transcript, the Applicant stated what password she used when she was working for the Respondent, and at PN243, stated that she gave her password to Ms Geer. Mr Alderman submitted that Ms Geer is not in a management position.

Mr Alderman submitted that the Applicant’s Contract of Employment states at Part 10 that, “An employee must take all necessary precautions to maintain the secrecy and prevent disclosure of confidential information”.[15] Mr Alderman submitted that in sharing her password, the Applicant breached the Respondent’s strict code of conduct in relation to the use of the work passwords. Mr Alderman noted that clause 6.5 of the Code of Conduct, headed ‘Must Not Disclose Confidential Information’, states:

“Unauthorised access to or disclosure of, or failing to prevent or report an unauthorised access to or disclosure of confidential information (when one was in the position to do so) is considered a serious disciplinary matter, and may constitute several offences depending on the nature of the disclosure.”

Further, it provides: “Improper use of information, especially confidential information, is considered to be a serious disciplinary matter.”

Mr Alderman noted that the Applicant also stated at PN243 of the Transcript that she used the same password for everything. Mr Alderman submitted that, in that situation, the chances of others obtaining the Applicant's password would be very high. Mr Alderman submitted that this breach of the requirement for confidentiality is a gross act of negligence and a valid reason for termination. Further, Mr Alderman submitted that the use of the same password for everything, which means everything to deal with a manager's position, including access to the Respondent’s bank accounts, is a gross act of negligence and a valid reason for termination.

Conclusion and Remedy

Mr Alderman maintained the Respondent’s position that Mr Hurst’s decision to terminate the employment of the Applicant was not capricious, fanciful, spiteful or prejudiced.[16] Mr Alderman submitted that Mr Hurst was objectively justified, to the appropriate standard, with proceeding with the termination of the Applicant’s employment so as to protect the proper administration of the Council’s processes and to protect the Respondent’s staff.

Mr Alderman submitted that the discovery of a reason after the dismissal took effect – namely, a failure to keep passwords protected from use by others – is also a reason the Commission should take into account in finding that there was a valid reason for the Applicant’s dismissal.

As to the interference with the portal, Mr Alderman maintained that the Applicant’s conduct amounted to serious misconduct. Mr Alderman submitted that the Applicant has exhibited that she had a motive for the serious misconduct of interfering with the Government Portal. Mr Alderman submitted that the existence of a motive to commit acts of serious misconduct is exhibited in the behaviour the Applicant exhibited after being removed from acting in a higher grade position within the Council.

Mr Alderman submitted that on 20 August 2024, the Applicant had been relieved of her higher duties and returned to her normal position. Mr Alderman submitted that the Applicant “took Umbridge at that step taken by her employer”.

Mr Alderman noted that Mr Hurst has stated that he discussed with the Applicant the reasons why he removed her from her acting position. The Applicant also stated that Mr Hurst discussed the reasons for her no longer acting at a higher duties position.[17]

Mr Alderman submitted that Mr Hurst has stated the Applicant “went out of her way” to state to others that she had been dismissed. Mr Alderman stated that the Applicant contacted numerous staff on 20 August 2024, stating that she had been fired, had been disciplined and was being bullied by the Mayor and the CEO. Mr Alderman stated that the Applicant made defamatory statements alleging that the Mayor had made the CEO suspend her. Mr Hurst also stated that the Applicant had made claims that she would ‘go after him’. Further, Mr Hurst believed that the Applicant’s husband was making threats to defame the Council’s staff, and had caused a cease and desist letter to be sent to him from the Respondent’s solicitor.

Mr Alderman submitted that the Respondent denies the claims made by the Applicant to other staff, including that she was fired, that she was disciplined, had been stood down/suspended and that she was being bullied by the Mayor and CEO.

Mr Alderman submitted that further to claims that she was being treated unfairly, the Applicant was found to have actively encouraged other staff to engage in “malicious and vexatious complaints against the CEO and Mayor”.

For all of these reasons, Mr Alderman submitted that the Applicant has demonstrated she had a motive to commit the act of serious misconduct in rejecting Ms Alam from the Aged Care Portal.

Therefore, Mr Alderman submitted that the Respondent had a valid reason to dismiss the Applicant.

As to the compensation sought by the Applicant as a remedy for her application, Mr Alderman made submissions in reply as follows:

· Whilst employed by the Council, the Applicant's salary was $128,791.45 plus super.

· It was a term of the Applicant’s employment that she receive housing assistance of up to $15,000 per year.

· The Applicant had the use of a Council vehicle for private use or a vehicle allowance of up to $15,000 per year.

· The Applicant’s employment with the Council ceased on 4 November 2024.

· The Applicant was paid 3 weeks’ pay in lieu of notice as required by the contract of employment.

· The Applicant moved to Darwin and obtained employment on 30 January 2025. Her income is said by the Applicant to have been $109,765.45 plus superannuation.

· On 20 March 2025 the Applicant gained employment with a salary the Applicant says is the same as that which she had with the Council.

Mr Alderman submitted that should the Commission decide that the Applicant was unfairly dismissed because the process was unfair, the Respondent submits the remedy should be equal to 2 weeks salary on the basis that this is a reasonable period of time that any further process requirements could have been undertaken within. In the alternative, Mr Alderman submitted that should the Commission decide that the Applicant was unfairly dismissed because there was no valid reason for dismissal, the remedy should be limited to the following having regard to the Sprigg formula:

“a. Payment to the Applicant of $25,842.49 (gross and less applicable tax) plus superannuation based on the following calculation on loss of income;

i. 87 days from 4 November 2024 to 30 January 2025 take 3 weeks = 66 days @$352.85 per day or $23,288.32; plus

ii. 49 days from 31 January 2025 to 20 March 2025 @ $19,026 / 365 = $52.126 per day or $2,554.17.”

Mr Alderman submitted that, noting the Applicant has moved from Katherine to Darwin, the loss of the employer-subsidised accommodation and vehicle should not be considered in any compensation formulation. In the alternative, Mr Alderman submitted that any compensation taking these factors into account should only be applicable for the period until the Applicant moved to Darwin.

Applicant’s Closing Submissions in Reply

Mr Withnall submitted that, in respect of allegations now made by the Respondent that did not emerge until the time of hearing or final submissions, the Applicant relies on the Full Bench decision in Mr Roland Barber v Veolia Recycling and Recovery Pty Ltd[2025] FWCFB 141 (Barber), particularly at [27]-[33] and [43]-[48]:

“[27] The key proposition that Mr Barber puts forward and asserts in Ground 1, is that the Commissioner considered and made findings on conduct matters that Veolia did not rely on in their show cause or termination letter or as conduct justifying a conclusion that there was a valid reason for dismissal and about which Mr Barber was not cross-examined. Grounds 1(a) and (b)contend that Mr Barber was denied procedural fairness by reason of the fact that the Commissioner made findings about, and relied upon as part of a valid reason for dismissal, alleged conduct on the part of Mr Barber on 12 April 2024 about which Veolia did not seek findings or submit constituted a valid reason for dismissal.

[28] It is open to the Commission to find that there is a different valid reason for dismissal, other than the one put forward by the employer. This is made clear in Newton where the Full Bench said:

The Commission is bound to determine whether, on the evidence provided, facts existed at the time of termination that justified the dismissal. Contrary to the Appellant’s submission, in determining whether there was a valid reason for the dismissal the Commission is not confined to the reason advanced by the employer (either at the time of dismissal or during the course of the subsequent hearing). A valid reason for dismissal can be any valid reason underpinned by the evidence provided to the Commission.

[29] However, if the Commission determines a valid reason for dismissal exists which has not been put forward by the employer, the Commission must act judicially and afford the parties procedural fairness. An applicant must be put on notice and have a fair opportunity to address a matter the Commission proposes to rely upon adverse to the applicant’s case. That principle was explained by the Full Bench in Newton and expanded upon in other decisions including Steed v Active Crane Hire Pty Ltd [2023] FWCFB 152. In Steed, the Full Bench referred to Newton and said:

The Full Bench went on to find that Mr Newton was not afforded procedural fairness in respect of the Deputy President’s findings of dishonesty and the imputed motive for the dishonesty, and that a finding of the type made by the Deputy President carries with it an obligation to accord the relevant party procedural fairness. The Full Bench concluded “absent the matter being squarely put by the cross-examiner it was incumbent on the Deputy President to make the challenge himself”.

The principle to be derived from Newton and the cases cited by the Full Bench, is that where a finding on a critical issue or factor adverse to a party is being considered by a Member of the Commission hearing a matter, and the finding does not follow from the evidence or relates to a contention that was not raised in the hearing of the matter, the Member conducting the hearing should put the proposition to the parties and the basis for it, so that the affected party has an opportunity to respond. This is particularly so when the finding is foundational to a conclusion about a matter central to the case advanced by the party. A failure to do so will generally amount to a denial of procedural fairness

[30] The obligation of the Commission to act judicially and that the principles of natural justice are applicable to proceedings before the Commission are not in doubt. We are conscious, however, that the Commission is a statutory body and its functions are subject to the terms of the Act. Section 577 of the Act directs that the Commission must perform its functions in the following manner:

(1)   The FWC must perform its functions and exercise its powers in a manner that:
(a)   is fair and just; and
(b)   is quick, informal and avoids unnecessary technicalities; and
(c)   is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.

[31] What is required to ensure that a party is on notice of, and has a fair opportunity to address, matters of significance to a decision of the Commission will vary from case to case. The nature of the matters at issue, the manner in which the proceedings are conducted and the characteristics of the parties involved are likely to be relevant as will the statutory context in which the Commission exercises its functions. For example, where the parties are self-represented, in order to fulfil the Commission’s functions, a member may be required to determine the matter in a different manner to what is put forward by the parties. This is especially so where the arguments of the self-represented parties are misconceived. The member of the Commission may, in such circumstances, be compelled to take on a more inquisitorial role to ascertain the truth of what occurred.

I have also taken into account the submissions of the parties in relation to the standard of proof and the Briginshaw standard:

“The standard of proof remains the balance of probabilities but ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained’[32] and such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’ or ‘by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.’”

This phrase emanates from the High Court decision in Briginshawv Briginshaw,[33] where Dixon J said;

“The tribunal must feel an actual persuasion of its occurrence or existence before it can be found... Reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved...In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

I have taken this into account.

Based on the Briginshaw principle, I am satisfied and find, for the reasons and findings identified above, that the Respondent had a valid reason to terminate the Applicant.

Section 387(b) - Notified of the Reason

I have taken into account that the Applicant was issued a Show Cause Letter and Termination Letter by the Respondent.

Section 387(c) - Opportunity to Respond

The Respondent issued the Applicant with a Show Cause Letter on 28 October 2024. The Respondent only provided the Applicant with 2 days to respond. Michael Grove, a Partner at Ward Keller, and perhaps the most pre-eminent solicitor in the Northern Territory, responded on behalf of the Applicant on 30 October, seeking further particulars and relevant documents from the Respondent. Ms Ellis, from Cozens Johansen Lawyers, responded to Mr Grove on 1 November 2024, denying Mr Grove’s request and advising that the Applicant was terminated as of that date, with the payment of 3 weeks notice. I note that the Respondent subsequently sent the Applicant her Termination Letter on 4 November 2024. Significantly, the Applicant was not provided with an adequate or realistic opportunity to respond to the allegations contained in the Show Cause Letter. The request from Mr Grove was appropriate and pragmatic. Further, it is obvious that the Applicant was not interviewed as part of any investigation that was undertaken by the Respondent. I have taken this into account.

In Department of Social Security v Uink (Uink),[34] a Full Bench of the Commission held:-

“We accept the appellant's submission that in conducting a disciplinary inquiry an employer is not required to adopt the standards applied to a judicial inquiry. In this regard we adopt the following remarks by Heerey J in Schaale v Hoechst Australia Ltd (1993) 47 IR 249 at 252:

"It would be harsh, unjust and unreasonable for an employer to dismiss an employee summarily in the ground of serious misconduct without taking reasonable steps to investigate those allegations and give the employee a fair chance of answering them: see Gregory at 413; 471; Wheeler v Philip Morris Ltd (1988) 32 IR 323 at 346; 97 ALR 282 at 306.

In my opinion the respondent's conduct in this regard did not breach the requirements of the award. The allegation against Mr Schaale was a clear and simple one. Did he breach security of climbing over the fence? The award has to operation "in a practical way in a commercial and industrial environment": Gregory at 413; 471. Employers are not required to have the skills of police investigators or lawyers. By inspecting the site of the alleged entry and taking statements from potential witnesses it seems to me the respondent acted quite reasonably. In the interview on the following morning the allegation was put very clearly to Mr Schaale and he persisted in an account which the respondent was reasonably entitled to reject."

It is clear from the above extract that what is required is that the employer take reasonable steps to investigate the allegations and give the employee a fair chance of answering them. That did not occur in this case. Both of the points we have referred to above highlight the inadequacy of the Inquiry. The Inquiry Officer did not do all that was necessary. All of the relevant material was not considered and this applicant was not given certain documents which were relied on by the Inquiry Officer. In our view the Inquiry was flawed and Mr Uink was not accorded procedural fairness. This failure was not a mere technical breach and when considered with the other circumstances in the case there was a sufficient basis for the Commissioner to conclude that the termination was harsh, unjust or unreasonable.”

(My emphasis)

In Australia Meat Holdings Pty Ltd v McLauchlan (McLauchlan),[35] a Full Bench of the Commission held:-

“Facts which existed at the time of the dismissal but which only come to light after the dismissal might either:
· justify the dismissal when otherwise it would be harsh, unjust or unreasonable; or
· render the dismissal harsh, unjust or unreasonable.

Findings made by an inquiry established by the employer will be relevant to the Commission's determination of the issues before it provided it is established that:
- the employer conducted a full and extensive investigation into all of the relevant matters as was reasonable in the circumstances;
- the employer gave the employee every reasonable opportunity to respond to allegations; and
- the findings were based upon reasonable grounds.

While such findings are relevant they do not conclusively determine whether the termination was harsh, unjust or unreasonable. That issue is to be decided by the Commission on the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient inquiry, that that employee was guilty of the conduct which resulted in termination.
A termination may be unjust because, on the evidence before the Commission, the employee was not guilty of the misconduct on which the employer acted. Further, a termination may be unreasonable because it was decided on inferences which could not reasonably have been drawn from the material before the employer. Even where the findings of an employers enquiry are reasonable the Commission may conclude that a termination of employment on the basis of those findings was harsh because the penalty was disproportionate to the misconduct [Byrne v Australian Airlines Ltd at 465 per McHugh and Gummow JJ]”

Adopting the reasoning and obiter in both McLauchlan and Uink, I am satisfied and find that the Applicant was not given an opportunity to participate in an investigation or an opportunity to respond to the allegations contained in the show cause letter. I have taken these issues into account.

Section 387(d) - Any refusal of a support person

The Respondent did not conduct any meetings with the Applicant in relation to her termination, so this provision is not relevant in this circumstance.

Section 387(e) - Unsatisfactory performance

The Respondent submitted that it had previously issued warnings to the Applicant in relation to unsatisfactory performance. However, I note that the Applicant’s dismissal did not relate to unsatisfactory performance and instead was on the grounds of misconduct. I therefore find that this is not a relevant consideration.

Section 387(f) - Size of Employer and Section 387(g) - Dedicated HR specialists

I note that the Respondent is not a small business employer and employs dedicated Human Resources staff. I have taken this into account.

Section 387(h) - Any other matter

I am satisfied and find that the Respondent believed that there were significant financial irregularities associated with the Applicant’s actions which has resulted in a report being filed with the Norther Territory Police. The CEO has signed a Statutory Declaration with this police report, attesting to the phone call that he witnessed between Ms Alam and Services Australia, where they were advised of the actions of the Applicant in interfering with the CEO’s and Ms Alam’s access to the system. Apart from noting the existence of the issue, I make no finding or comment on the Respondent’s report to the Police. I have taken this into account.

The Applicant has a very confrontational demeanour, does not accept criticism well, believes that she is always right and was of the belief that she was superior to every other employee of the Respondent, including the CEO. The Applicant testified that she was upset at being demoted back to her substantive position on 20 August 2024. I do not accept that the cessation of an acting in higher grade role as being a demotion but simply a natural occurrence in the workplace. For the process to be considered a demotion, the Applicant would have had to be appointed to the higher graded position – which had not occurred.

Rather than be thankful for the additional paid time provided by the CEO in the lead up to her holiday (after initially requesting 1 day), the Applicant complained to friends and colleagues that she had been disciplined. I have taken this into account.

I also note that the Applicant was employed on a 3-year fixed contract. I have taken this into account.

Conclusion

I was surprised by the lack of compelling witness evidence in this proceeding. Any number of witnesses could have been subpoenaed to support and confirm the competing evidence of the Applicant and the CEO. The failure of both sides to run a more fulsome case has resulted in this decision being based on an assessment of the credibility of both the Applicant and the CEO, which was questioned by both sides during the proceeding.

I am satisfied and find that the Applicant, based on the balance of probabilities, was involved in inappropriate conduct in the workplace which warranted her termination.

I am satisfied and find that the Applicant did disparage the CEO and the Mayor, based on the balance of probabilities, after the higher graded role had been withdrawn from her a few weeks earlier than anticipated.

I am satisfied and find that the Respondent did have questions in relation to the Applicant’s workplace activity, which may have resulted in significant financial issues for the Respondent.

However, the Applicant is entitled to procedural fairness during the termination process.

Any investigation of this nature should have included an interview of the Applicant before the decision was made to issue a Show Cause Letter. This did not occur.

Further, the Applicant should have been provided with an appropriate period of time to respond to the Show Cause Letter. Whilst 2 days is inappropriately short, the fact that the Respondent received a letter from the Applicant’s solicitor seeking better and further particulars within the 2-day timeframe necessitated an alternate response to simply issuing the Termination Letter and ignoring the correspondence from the Applicant’s legal representative.

Whilst the Respondent undoubtedly had a valid reason to terminate the Applicant, following the obiter in McLauchlan and Uink, the lack of procedural fairness in conducting a thorough investigation, and the failure to provide the Applicant with better and further particulars, as well as sufficient time to respond to the allegations, extinguishes that reason.

I find that the actions of the Respondent identified above have breached s.387(3) of the FW Act, which renders the Applicant’s termination harsh, unjust and unreasonable.

As a result, I find that the Applicant was unfairly dismissed.

Remedy

Having found that the Applicant has been unfairly dismissed, I now turn to the issue of an appropriate remedy.

I have taken into account the submissions of the parties in relation to remedy.

The relevant provisions of the FW Act in relation to a remedy for unfair dismissal are:

“390      When the FWC may order remedy for unfair dismissal
(1)       Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a)       the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b)       the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.
(3)       The FWC must not order the payment of compensation to the person unless:
(a)       the FWC is satisfied that reinstatement of the person is inappropriate; and
(b)       the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

391        Remedy—reinstatement etc.
Reinstatement
(1)       An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a)       reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b)       appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A)     If:
(a)       the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b)       that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c)       appoint the person to the position in which the person was employed immediately before the dismissal; or
(d)       appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity
(2)       If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:
(a)       the continuity of the person’s employment;
(b)       the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay
(3)       If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4)       In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a)       the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b)       the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

392 Remedy—compensation

Compensation

(1)       An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2)       In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a)       the effect of the order on the viability of the employer’s enterprise; and
(b)       the length of the person’s service with the employer; and
(c)       the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d)       the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e)       the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f)       the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g)       any other matter that the FWC considers relevant.

Misconduct reduces amount
(3)       If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4)       The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5)       The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a)       the amount worked out under subsection (6); and
(b)       half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or
(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

I have taken into account the criteria in s.392 of the FW Act and the formula emanating from the Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket[36] in reaching my conclusion.

The Applicant was terminated on 4 November 2024 and paid 3 weeks’ pay in lieu of notice.

Having found previously that the Respondent would have had a valid reason except for the lack of an appropriate investigation and a reasonable period of time to respond to any allegations, I am satisfied and find that the appropriate remedy is the number of weeks’ pay that the Respondent should have taken to ensure a procedurally fair process.

In my view, a thorough investigation would have taken 2-3 weeks to conduct, including interviewing the Applicant. The Applicant should have then had the findings of the investigation put to her during the show cause process, and allowed 4-5 days to respond. The Respondent would have then been required to consider the Applicant’s response before making the decision to terminate the Applicant.

As a result, I am satisfied and find that the Applicant should be paid 4 weeks’ pay as compensation for her unfair dismissal.

I so Order.

COMMISSIONER

[1] The Applicant cited Lohse v Arthur (No 3) [2009] FCA 1118.

[2] The Applicant cited and relied on the decisions in Northern Territory of Australia v Lie Yao [2024] NTSCFC 1, which upheld Judge John Neill’s decision of Lie Yao v Northern Territory of Australia [2022] NTWC 004; Maria Rust v Northern Territory of Australia [2024] NTWHC 2; [2015] FWC 6556; [2017] FWC 4988; [2018] FWC 1455; [2021] FWC 1364; [2021] FWC 4507.

[3] Jennifer Watts v Ramsay Health Care[2018] FWC 1455.

[4] Michael Crowley v Trustees for the Roman Catholic Church, Archdiocese of Canberra and Goulburn[2019] FWC 4643; Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.

[5] The Applicant provided an additional footnote as follows: “The termination letter of 1 November 2024 from Cozens Johansen demands the return of “all Council property including the council vehicle and any Council documents, keys, passes, credit card etc” with no mention of IT equipment – perhaps the most sensitive of all Council property that could be retained by a departing employee”.

[6] Exhibit 3, PN 65; Digital Hearing Book page 121.

[7] Digital Hearing Book page 121.

[8] Exhibit 3; Digital Hearing Book page 119.

[9] Exhibit 3.

[10] Digital Hearing Book page 121.

[11] Digital Hearing Book page 119.

[12] Witness statement of Mr David Hurst at [119]-[122].

[13] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24]; Joseph Duncan v Complete Belting Solutions[2023] FWC 804 at [52]; Jason McGown v Hired Labour PtyLtd[2022] FWC 1450 at [26].

[14] Transcript at PN33, 349, 369.

[15] Digital Hearing Book page 39.

[16] Senathirajah Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333.

[17] Witness statement of Ms Caroline Clare Cupitt at [43].

[18] (1995) 185 CLR 410.

[19] (1998) 84 IR 1.

[20] [2000] AIRC 1019.

[21] (1995) 62 IR 371.

[22] PR4471.

[23] (1998) 84 FCR 483.

[24] Briginshaw v Briginshaw [1938] HCA 34 (30 June 1938), [(1938) 60 CLR 336]; cited in Barber v Commonwealth of Australia as represented by the Department of Parliamentary Services[2011] FWA 4092 (Thatcher C, 6 July 2011) at para. 33, [(2011) 212 IR 1].

[25] Exhibit 6.

[26] Transcript at PN314.

[27] Transcript at PN318.

[28] Witness statement of Mr David Hurst at [67].

[29] Witness statement of Ms Caroline Clare Cupitt at [43(k)].

[30] Ibid at [43(g)].

[31] Transcript at PN242-243.

[32] Briginshaw v Briginshaw [1938] HCA 34.

[33] Ibid.

[34] Print 7680 (AIRCFB, Ross VP, Drake DP, Palmer C, 24 December 1997).

[35] Print Q1625 (AIRCFB, Ross VP, Polites SDP, Hoffman C, 5 June 1998); citing Bi-Lo Pty Ltd v Hooper (1994) 53 IR 224 at pp. 229–230.

[36] (1998) 88 IR 21.

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