Mrs Laura Stien v Hire a Hubby Pakenham - [2025] FWC 510

[2025] FWC 510 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mrs Laura Stien
v

Hire A Hubby Pakenham

(U2024/15793)

COMMISSIONER REDFORD

MELBOURNE, 26 FEBRUARY 2025

Application for an unfair dismissal remedy – jurisdictional objection genuine redundancy – genuine redundancy not found – dismissal not consistent with the Small Business Fair Dismissal Code - applicant unfairly dismissed – compensation awarded

On 31 December 2024 Ms Laura Stien made an application pursuant to s 394 of the Fair Work Act 2009 (FW Act) against her former employer, Hire A Hubby Pakenham (HAHP).
HAHP objects to the application on the basis it says Mrs Stien’s dismissal was as a result of a genuine redundancy and was consistent with the Small Business Fair Dismissal Code (SBFDC). Mrs Stien contests these objections and seeks from the Commission a remedy in respect to unfair dismissal.
A hearing was conducted on 20 February 2025 to determine these matters, after the parties had previously been provided with an opportunity to file material in support of their respective positions on the jurisdictional questions and the merits of the application. The hearing was conducted by way of determinative conference. Both parties were self-represented at the determinative conference.

Ordering a remedy in relation to unfair dismissal

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

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

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

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

A person is “protected from unfair dismissal” if they are an employee who has completed a period of employment with his or her employer of at least the minimum employment period and one or more of the following apply[1]:

a.a modern award covers the person;
b. an enterprise agreement applies to the person in relation to the employment;
c.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.

Whether the application was made within time taking into account the date the termination took effect

In her application, Mrs Stien asserted that the termination of her employment took effect on 11 December 2024, which was when she was told about it. In its response, HAHP asserted that the termination took effect on 25 December 2024. When that assertion was interrogated, it appeared HAHP somehow claims it provided Mrs Stien with two weeks of notice of termination on 11 December 2024, and thus the termination of her employment took effect on 25 December 2024. When that claim was further interrogated, it became plain that if HAHP imagined that the termination of Mrs Stien’s employment, which she was advised of on 11 December 2024, was intended to take effect two weeks later, it did not tell her. There was also no suggestion she was paid in lieu of that notice period. Notice cannot be provided without the employee being told about it. Plainly, HAHP did not provide Mrs Stien with notice of termination – two weeks or otherwise. I consider the termination of her employment took effect on 11 December 2024.
Having been filed on 31 December 2024, the application was filed within the 21 day period prescribed by the FW Act.

Whether the dismissal was a case of genuine redundancy

HAHP asserts that the dismissal of Mrs Stien’s employment was as a result of a genuine redundancy. It is necessary to set out some brief background to explain why, in my view, Mrs Stien’s employment was not a case of genuine redundancy, as defined in the FW Act.

Relevant background

Mrs Stien was engaged by HAHP on 15 August 2022 as the businesses’ office administrator. The owner of the business, and to whom it appears Mrs Stien reported, was Mr Ronald Peter Moore, who gave evidence in this proceeding. Mrs Stien worked 30 hours per week and her duties included answering phones, some bookkeeping including using the “Xero” system and booking jobs.
Mrs Stien fell pregnant in about June 2023 and began working from home. It did not appear to be in contest that she was able to perform the requirements of her role from home.
Mrs Stien commenced parental leave on 23 October 2023. There was apparently no discussion about the likely length of Mrs Stien’s leave, or when she would return to work, although it appeared both parties assumed she would take 12 months parental leave.
At this time HAHP involved a staffing complement of five: Mr Moore; three handymen and Mrs Stien. When Mrs Stien commenced leave, Mr Moore’s wife, “Genevieve” took over as the office administrator and performed the same functions as Mrs Stien did, working similar hours.
There was only one instance of contact between Mrs Stien and HAHP while she was on parental leave, which was from Genevieve, relating to Mrs Stien’s accidental use of an “Ebay” account linked to another employee’s credit card. This was quickly rectified.
Otherwise, there was no contact whatsoever between Mrs Stien and her employer for the entirety of her parental leave period. Given what has transpired, it seems to me this is a case that exemplifies the benefits for employers and employees of having some form of “keeping in touch” system during a period of parental leave – even at a basic level - to avoid miscommunication or misapprehension. An employee who is absent from work on parental leave is still an employee.
On 1 October 2024, Mrs Stien sent a letter to HAHP requesting the extension of her parental leave. It appeared this request had been made with the benefit of information she obtained from a website – perhaps the Fair Work Ombudsman website (although this was not clear) - and, while a copy of the letter was not provided in evidence, the request appears to have been made in accordance with s 76 of the FW Act. Mrs Stien sought a 12 month extension to her parental leave.
There was a small controversy over when this letter was received by Mr Moore. It was agreed the letter was dated 1 October 2024 and Mrs Stien claimed to have posted it on or about this date. Mr Moore claims to have discovered the letter outside the door of his business premises on 20 November 2024. The letter was left on the ground, but in the place that Mr Moore said Australia Post normally leave his post. He explained that people walk over this location constantly, entering and exiting the premises, and that it would be almost impossible for the letter not to be noticed within a confined period of time. It was therefore puzzling why a letter apparently posted on 1 October 2024 did not appear until 20 November 2024. Unfortunately, however, on the basis of the evidence before me I cannot solve this mystery, and it is unnecessary I do so. I have no reason to doubt Mrs Stien’s evidence that the letter was posted on 1 October 2024. I also have no reason to doubt the evidence that the letter was not seen by Mr Moore until 20 November 2024.
This meant there was a delay in Mr Moore replying to Mrs Stien’s request. In the intervening period, she claims to have phoned the business, twice, at times and on days she couldn’t recall. On these occasions she claims to have spoken to someone called “Jen” who she assumed was Mr Moore’s wife. This is relevant, for reasons which will shortly become clear.
On 22 November 2024 Mr Moore sent an email to Mrs Stien which said:
“Hi Laura

I received your letter on 20 Nov.

Please see attached the last pay slip before you embarked on maternity leave.

As the employer, I have 21 days from the date of receipt to respond to your request for an extension which brings us to 11^th Dec. I will have a response for you before then.”

On 9 December 2024 Mr Moore emailed Mrs Stien again and advised that he had decided to decline the request for a 12 month extension to her parental leave. The email said Mr Moore was happy to discuss this further, should Mrs Stien wish to do so.
On 11 December 2024 Mrs Stien sent an email to Mr Moore asking “for what reason” – meaning she was asking why her request had been declined. It also appears she asked why she had earlier stopped receiving pay slips.
Later, on 11 December 2024, Mr Moore sent an email to Mrs Stien which said:
“You should not have been receiving payslips while on leave. Everything is on hold, you don’t accrue leave or any other entitlements. The reason why you’ve not received anything since August is because I have reverted back to doing admin functions in the business and I have downsized in light of the changing economy and reduced demand. At present, I am a business of two.

This leads on to why the extension request has not been granted. I do not have a position for an admin person anymore due to the downsizing and the role is now redundant. I couldn’t flesh out a part -time role either. We are moving out of the factory to reduce overheads and will be back to operating from my garage for storage of tools etc.

I agree that communication back to you could have been better, likewise you could have contacted us at any time to indicate your intentions prior to your leave expiring.”

There is no evidence before me of any subsequent contact between the parties.
Mr Moore said in his evidence that he had assumed earlier – perhaps in October 2024 (or earlier) that, not having heard from Mrs Stien for many months, during her parental leave, she may have decided not to return to her employment. There was no evidence that Mr Moore attempt to contact Mrs Stien to check on this assumption.
In his evidence, Mr Moore explained that he had changed the structure of his business during 2024 to attempt to use his resources more efficiently and reduce those costs he was incurring that were not producing income. As the year wore on, his business experienced pressure, particularly in the form of greater competition on quotes (which drove prices down) and the imposition of an ATO payment plan, affecting his cash-flow. He said he tried several approaches to deal with these pressures – for example towards the end of the financial year he engaged a person to specialise in customer-service and quotations, so that he could return to “the tools”, joining two other handypersons. At this time, he had 6 employees: three handypersons (including himself); a customer-service person, his wife, in the office administrator role (in place of Mrs Stien who was on leave) and of course Mrs Stien herself, on parental leave.
A further pressure arose when one of his handypersons became unable to drive, meaning they had to “double up” with the other, making the model less efficient. In time, it transpired that the customer-service role proved ineffective, and this person ceased with the business in August 2024. In October 2024, Mr Moore said he was forced to tell the handyperson who could not drive that he could not afford to keep him on. By this time, the business was comprised of Mr Moore, a single handy-person (Mr Danny Hartley) and Mr Moore’s wife, Genevieve, replacing Mrs Stien on parental leave (as well as Mrs Stien, still on leave).
Then, on 6 October 2024, Mr Moore’s wife ceased working for the business, after obtaining another job. This meant that the office administrator duties moved to Mr Moore himself. At some point around this time, he engaged a phone-answering service called “My PA” to assist answering the phones.
Mr Moore said in evidence that after about a week or two during which time he was covering the office administrator duties, after his wife left the business, he decided that the role of office administrator was redundant. While he was not able to be precise about this date, it was clear the decision was made in October 2024 – sometime in “mid-October 2024”. Incidentally, this timing coincided with the date Mrs Stien was due to return to work from 12 months parental leave (which commenced on 23 October 2023).
A further pressure arose in early December 2024, when the tenants with whom Mr Moore shared warehouse premises left those premises. His rental costs increased, causing him to decide he would leave the warehouse and run the business from his garage. Mr Moore left the warehouse on 6 January 2025.
To some extent, Mrs Stien attempted to argue that Mr Moore’s business challenges were overstated. She contested his suggestion, related to her in the email he sent her on 11 December 2024, that he was moving out of the warehouse. She also appeared to take issue with the assertion, made at the same time, that Mr Moore was now a “business of two”.
The latter issue appears to be based on two theories held by Mrs Stien: one, that Mr Moore’s wife was still working with the business; and two, that Mr Hartley was still working for the business. This would have made a business of at least three or even four.
Mrs Stien believed Mr Moore’s wife was still working for the business because when she phoned the business twice during October 2024, she spoke to someone called “Gen”. Mr Moore explained that one of the people on the “My PA” answering service was called “Jen”.
It seems to me that Mrs Stien was mistaken when she theorised that Mr Moore’s wife was still working for the business. I have no reason to doubt Mr Moore’s evidence that his wife ceased employment on 6 October 2024 to take on a different job. Mrs Stien confirmed it was possible that she was not speaking to Mr Moore’s wife, but someone else with the same name, and confirmed there was no familiarity in her conversation with this person. I consider it likely Mrs Stien confused Mr Moore’s wife, who had stopped working at the business by this time, with a person working for “My PA” with the same name.
The other theory held by Mrs Stien was that Mr Hartley did and still does work for the business. This was because Mrs Stien has observed on several occasions the HAHP “van” parked outside Mr Hartley’s house. She provided in evidence two photographs and a video of the van, parked outside what I was told was Mr Hartley’s house, taken during February 2025. She also said in evidence that she had observed the van still parked there, on the very morning of the determinative conference itself.
While Mrs Stien’s theory is perfectly reasonable, it appears she is mistaken about this also. Mr Moore tendered in evidence an email dated 31 December 2024 containing Mr Hartley’s resignation, to be effective later in January 2025. He confirmed that Mr Hartley no longer works with him. He also explained that Mr Hartley has agreed to allow the van, which Mr Moore is trying to sell, to remain parked outside his house for the time-being.
From the evidence before me, I consider that Mr Moore was indeed a “business of two” in December 2024 (himself and Mr Hartley) and is now, in 2025, a “business of one”.
Mrs Stien also proposed in cross examination that Mr Moore’s business had always faced financial challenges, and so “nothing had changed”. I did not consider this proposition assisted Mrs Stien, against the backdrop of evidence that pressures had arisen during 2024 of a kind the business had not previously had to face. There was no reason to doubt Mr Moore’s assertion that things had got more difficult during 2024 than they had been previously.

The meaning of genuine redundancy

The meaning of “genuine redundancy” is contained with s 389 of the FW Act as follows:
“(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer”
If follows that three findings are required: whether the role is redundant; whether there was compliance with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy, and whether it would have been reasonable to redeploy the Applicant in another role[2].

Did HAHP no longer require the role of office administrator to be performed by anyone because of changes in the operational requirements of its enterprise?

I consider the answer to this question is “yes”. Mr Moore explained, in his evidence, the operational changes he made in his enterprise, which resulted in the abolition of the office administrator role. These occurred against the backdrop of business pressure: competitive pressure; inefficiency and an ATO arrangement causing cash flow stress.
In response to these pressures, Mr Moore’s response was to make operational changes. He attempted to bring in specialist, customer facing resources to improve things. He told one of his handypersons that he could not afford to keep him on, to reduce his cost pressure. By mid-October 2024, when he made the decision to make the office administrator role redundant, Mr Moore’s business had reduced from five staff, as at October 2023, to two staff – himself and Mr Hartley.
I have no reason to doubt the evidence of Mr Moore about these matters. To some extent, Mrs Stien subjected it to forensic scrutiny, challenging whether Mr Moore’s staffing compliment has really reduced in the way he says it has, or whether his business is really suffering to such an extent. His evidence survived this scrutiny, and I am satisfied that the role of office administrator is no longer required to be performed by anyone at HAHP because of operational requirements.

Did HAHP comply with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy?

In the circumstances of this case, it is appropriate to emphasise that for a dismissal to meet the definition of genuine redundancy under the FW Act, an operational imperative is not enough – two further elements are required.
One of those is that if there is an obligation on the part of the employer to consult with an employee about the redundancy arising from an Award or an enterprise agreement, that obligation must be complied with.
There is no doubt HAHP had such an obligation in respect of Mrs Stien.
HAHP provided in evidence a copy of Mrs Stien’s letter of offer of employment. This letter, which appears to be cast in a generic form, says that Mrs Stien was employed in accordance with the “AN120664 – Clerical and Administrative Employees (State) Award”. This Award – an NSW State Award - does not apply to Mrs Stien’s employment but, for reasons I will now set out, the Clerks – Private Sector Award 2020 (the Clerks Award) does.
The Clerks Award applies to private sector employers throughout Australia in relation to employees wholly or principally engaged in clerical work. “Clerical work” includes “recording, typing, calculating, invoicing, billing, charging, checking, receiving and answering calls, cash handling, operating a telephone switchboard, attending a reception desk and administrative duties of a clerical nature.” HAHP is a private sector employer and does not fall within any of the exceptions set out in the coverage clause of the Award. Mrs Stien’s role as office administrator was clerical work, as defined by the Award. Mrs Stien’s employment was covered by this Award and gave rise to obligations with respect to HAHP under it.

Clause 38 of the Clerks Award imposes an obligation on employers covered by the Award, such as HAHP, to consult with employees about “major workplace change” relating to production, program, organisation, structure or technology that are likely to have significant effects on employees. This includes change which may include termination of employment, major changes which will affect the employee relating to the composition, operation or size of the employer’s workforce or job restructuring. Accordingly, an obligation to consult arises if changes are going to make an employee’s role redundant, resulting in the termination of their employment.
“Consultation” means the employer must:
“a.give notice of the changes to all employees who may be affected by them and their representatives (if any); and
b. discuss with affected employees and their representatives (if any):
i. the introduction of the changes; and
ii.their likely effect on employees; and
iii.measures to avoid or reduce the adverse effects of the changes on employees; and
iv.commence discussions as soon as practicable after a definite decision has been made.”
It is not necessary in this matter to engage in a lengthy discourse on the meaning of the word “consultation”, save to say that it is well established that for communication about a decision to constitute “consultation” it must occur before the final decision is made[3].
Mrs Stien was told on 11 December 2024 that changes in the HAHP business had caused her role to become redundant, resulting in the termination of her employment, when she was sent an email from Mr Moore to this effect. There was no other conversation or communication with Mrs Stien.
Mr Moore gave unqualified evidence that he made the decision to make Mrs Stien’s role redundant in mid October 2024. It was not suggested, nor was there any evidence suggesting that HAHP at that time, or as soon as likely to be practicable thereafter, “commenced discussions”. Mrs Stien was told she was redundant only after she herself initiated contact HAHP, some two months later after the decision had been made.
Even if the email on 11 December 2024 is said to be some kind of “consultation”, this communication did not comply with HAHP’s obligations under the Award. At no point was there a discussion, including a discussion about measures to avoid or reduce the adverse effects of the changes made by HAHP.
The failure of Mrs Stien to initiate contact herself to discuss this matter with Mr Moore does not absolve HAHP of its obligation to consult with Mrs Stien, as set out in the Award. The onus was on HAHP to commence discussions with Mrs Stien – not on her to contact HAHP.
HAHP did not comply with its obligation under the Clerks Award to consult with Mrs Stien about the redundancy. As a result, the dismissal did not occur as a result of a genuine redundancy within the meaning of the FW Act

Was it reasonable for HAHP to redeploy Mrs Stien in another role?

The other element arising from the definition of “genuine redundancy” is whether it would have been reasonable in all the circumstances for the employee to be redeployed in another role.
There was some evidence that Mr Moore gave consideration to whether Mrs Stien could be employed in the business – which has now reduced to a “business of one” – in another role, such as a part time role. There is little evidence to support the notion that it might have been reasonable for Mrs Stien to be employed with HAHP in some other capacity. However, having found that HAHP failed to comply with an obligation to consult with Mrs Stien about the redundancy it is unnecessary for me to arrive at a conclusion as to whether it was reasonable for HAHP to redeploy Mrs Stien. The dismissal was not as a result of a genuine redundancy, in any event.

The Small Business Fair Dismissal Code

HAHP claim that the Mrs Stien’s dismissal was consistent with the SBFDC. If this is the case, Mrs Stien cannot have been unfairly dismissed.
There is no question that HAHP is a small business, within the meaning of the FW Act.
The SBFDC provides as follows:
“Small Business Fair Dismissal Code
Commencement
The Small Business Fair Dismissal Code comes into operation on 1 July 2009.
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job. The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity. A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
Accordingly, the SBFDC only deals with dismissal arising from serious misconduct and where there is a valid reason for dismissal arising from the employee’s conduct or capacity to do the job. Here, the dismissal arises from a redundancy (albeit, as I have found, not one meeting the definition of “genuine redundancy” in the FW Act). Generally, the Commission does not consider the Code applicable to a dismissal arising from redundancy[4]. I therefore do not consider that it can be said Mrs Stien’s dismissal was consistent with the SBFDC because it does not apply in these circumstances.
For completeness, I note that the SBFDC plainly envisages that unless an employee is alleged to have engaged in serious misconduct, where dismissal is possible, discussions should occur with an employee about that prospect. In this matter, SBFDC made a decision to make Mrs Stien’s role redundant, resulting in her termination of employment, but did not tell her for two months, and only in response to contact she herself initiated. Mr Moore provided in evidence a copy of the SBFDC “checklist” in support of the argument that Mrs Stien’s dismissal did comply with the Code. In this checklist, a box is checked “yes” in answer to the question as to whether HAHP complied with requirements to consult about redundancy. When questioned about this, Mr Moore appeared to equate having told Mrs Stien that her role was redundant on 11 December 2024 with having “consulted” with her. As I have explained above, I do not accept this explanation. I consider that even if the SBFDC did apply in this matter, the dismissal did not align with several of its requirements.

Further initial matters

Having determined that Mrs Stien’s application was made within the relevant time period, and that her dismissal was not a genuine redundancy or consistent with the SBFDC it remains to determine whether she was a person protected from unfair dismissal. She was.
Having commenced employment with HAHP on 15 August 2022, Mrs Stien had completed the minimum employment period, which in the case of SBFDC is one year. She was also, as I have found, covered by the Clerks Award, and her annual rate of earnings was less than the high income threshold.
Given my findings in relation to these initial matters, I am required to determine whether Mrs Stien was unfairly dismissed.

Statutory provisions - unfair dismissal

A person has been unfairly dismissed if the dismissal was “harsh, unjust or unreasonable”[5]. Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

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

I am required to consider each of these factors, to the extent they are relevant to the factual circumstances before me[6].

Was there a valid reason for dismissal related to Mrs Stien capacity or conduct?

It is well established that order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced” [7].
While, as I will expand on further below, the manner in which HAHP terminated Mrs Stien’s employment left a lot to be desired, the reason for the dismissal was valid. As I have discussed above, HAHP faced genuine business challenges during 2024 and significantly re-structured, downsizing its staffing profile considerably. To the extent that there continued to be office administration duties required, they were absorbed and outsourced. The reason to dismiss Mrs Stien was because her role had therefore become redundant. This reason was sound, defensible and well founded.
It did not however relate to Mrs Stien’s capacity or conduct. I therefore find this a neutral factor in my consideration as to whether Mrs Stien’s dismissal was harsh, unjust or unreasonable[8].

Was Mrs Stien notified of the reason for dismissal?

Notification of the valid reason for dismissal must be given to the employee explicitly and in plain and clear terms. And crucially, this must occur before the decision to terminate the employment is made[9].
Mrs Stien was told of the reason for the dismissal of her employment – redundancy – on 11 December 2024, which was about two months after the decision was made.
I find Mrs Stien was not notified by HAHP of the reason for her dismissal before the decision was made to terminate his employment. This factor weighs in favour of a finding that the termination of Mrs Stien’s employment was unfair.

Was Mrs Stien given an opportunity to respond to the valid reason?

An employee protected from unfair dismissal should be notified of a valid reason for the termination of their employment before a decision is taken to terminate that employment so that they can provide a response before the decision is final[10]. In this case, this did not occur. Mr Moore made the decision to terminate Mrs Stien’s employment in mid October 2024. He did not tell her about this decision until 11 December 2024.
The notification also came by email. In most circumstances, a cursory text message or email is not an appropriate means of conveying information as serious as the dismissal of a person’s employment[11]. Mrs Stien had been an employee of Mr Moore’s business since August 2022. She had not been included in any explanation about the evolution of the business, in relation to which she had a direct interest, including by reason of HAHP’s failure to comply with its obligations to consult her about those matters. In my view, it was a failure on Mr Moore’s part not to at least attempt to phone Mrs Stien to explain the situation.
Accordingly, even if Mrs Stien had been notified about the reason for her dismissal prior to the decision being made, which she was not, the information was not conveyed in a manner inviting a response.
In its submissions, HAHP said that “the employee had the opportunity to respond to my email and I had mentioned in an email dated 9 December 2024 that I could be contacted by email, phone or in person should she wish to discuss the matter of the declining of the leave extension”. I do not consider this submission assists HAHP in any way. The email of 9 December 2024 does not refer to the termination of Mrs Stien’s employment and instead relates to the decision to refuse the request to extend parental leave. The submission therefore underscores that after having failed to advise Mrs Stien of the decision made in October 2024 to terminate her employment, HAHP did not advise her of this fact, even on 9 December 2024 when Mr Moore communicated with her.
I find Mrs Stien was not provided with an opportunity to respond to the reason for her dismissal. This factor weighs in favour of a finding that the termination of Mrs Stien’s employment was unfair.

Did HAHP unreasonably refuse to allow Mrs Stien to have a support person present to assist at discussions relating to the dismissal?

In this matter, this factor is not relevant.

Was Mrs Stien warned about unsatisfactory performance before the dismissal?

In this matter, this factor is not relevant.

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

In considering whether a termination of employment is harsh, unjust or unreasonable, ss 387(f) and (g) of the FW Act requires that I give consideration to the degree to which the size of HAHP’s business or the absence of human resources management specialisation or expertise was likely to have impacted on the procedures followed in effecting the dismissal. HAHP said in its submissions that it does not have the benefit of dedicated HR support, and none is available from the franchise headquarters. It was submitted that not having a human resources management specialist or expertise could have “quite possibly” had an impact on the procedures followed in dismissing the employee.
HAHP is an extremely small operation. Mr Moore is now essentially a sole trader, and at the time of the redundancy of Mrs Stien’s role, a very small franchisee without, apparently, the ongoing support available in some other franchise operations. There was no evidence that Mr Moore has any expertise himself in human resources, or access to any.
However, there is a difference between the ignorance which may result from a small business not having access to human resources expertise, and a failure to adhere to basic standards of decency with respect to an employee[12]. Mr Moore’s failing was not that he was unaware of some obscure technical requirement to be followed in effecting the dismissal of his employee fairly. It was, fundamentally, his failure to pick up the phone, when he was becoming aware he could not continue with an office administrator role, and explain the situation to his employee, who was absent on parental leave, and had no way of knowing what was going on. There was no evidence before me of any explanation for this failure, and I do not consider the size of the business, or the absence of human resources expertise excuses it. I do not consider this factor weighs against a finding that the termination of Mrs Stien’s employment was unfair.

What other matters are relevant?

Several other matters are relevant.
While not a valid reason relating to Mrs Stien’s capacity or conduct (within the meaning of s 387(a) of the FW Act) the reason for the decision to dismiss her employment was defensible and well founded, and based on an operational decision driven by a genuine financial pressure on the business. It is appropriate to take this into account pursuant to s 387(h) of the FW Act[13], and I do so.
In addition to the other matters set out in s 387 of the FW Act, it may often be appropriate to take into account the failure to consult with an employee whose employment is terminated as a result of redundancy in determining whether the termination was harsh, unjust or unreasonable[14]. I consider that where that failure to consult involves an employee who is absent on parental leave, that unfairness can be accentuated, and this is one of those cases. Section 83 of the FW Act requires as follows:

“Consultation with employee on unpaid parental leave

If:

(a)an employee is taking a period of unpaid parental leave, other than flexible unpaid parental leave; and

(b) the employee’s employer makes a decision that will have a significant effect on the status, pay or location of the employee’s pre‑parental leave position;

the employer must take all reasonable steps to give the employee information about, and an opportunity to discuss, the effect of the decision on that position.”

For the similar reasons to my findings that HAHP failed to comply with its obligations to consult with Mrs Stien in accordance with the Clerks Award, I also find HAHP failed entirely to comply with its obligations pursuant to s 83 of the FW Act. This part of the National Employment Standards is an important part of scheme enshrining the right of Australian employees to access parental leave. HAHP’s failure to comply with it adds further weight to a finding of unfairness in relation to this dismissal.

Is the Commission satisfied that the dismissal of Mrs Stien was harsh, unjust or unreasonable?

I have made findings in relation to each matter specified in s 387 of the FW Act. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable[15]. The weight of these considerations clearly bears in favour of a finding that the dismissal of Mrs Stien was harsh, unjust and unreasonable and I find Mrs Stien was unfairly dismissed.

Remedy

Being satisfied that Mrs Stien

a.made an application for an order granting a remedy under s 394;
b.was a person protected from unfair dismissal;

and was unfairly dismissed within the meaning of s 385 of the FW Act, I may, subject to the FW Act, order Mrs Stien’s reinstatement, or the payment of compensation to Mrs Stien.
Under s 390(3) of the FW Act, I must not order the payment of compensation to Mrs Stien unless: (a) I am satisfied that reinstatement of Mrs Stien is inappropriate; and (b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.

Is reinstatement of Mrs Stien inappropriate?

Mrs Stien does not seek reinstatement and her role at HAHP is redundant. I find in these circumstances that reinstatement is inappropriate.

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

In circumstances where reinstatement is not appropriate, s 390(3)(b) of the FW Act requires that an order for payment of compensation must not be made unless I am satisfied it is appropriate in all the circumstances of the case. The amount of compensation, if any, is also be determined taking into account all of the circumstances of the case, including the matters set out in s 392(2). In this matter, as I discuss further below, taking into account all of the circumstances of the case and some of the matters set out in s 392(2), I consider there are several factors which limit the amount of compensation it is appropriate to award Mrs Stien. However, taking into account all of the circumstances of the case I do consider it appropriate to make an order for payment of compensation to Mrs Stien.

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

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

a.the effect of the order on the viability of HAHP’s enterprise;

the length of Mrs Stien’s service;
the remuneration that Mrs Stien would have received, or would have been likely to receive, if she had not been dismissed;
the efforts of Mrs Stien (if any) to mitigate the loss suffered because of the dismissal;
the amount of any remuneration earned by Mrs Stien from employment or other work during the period between the dismissal and the making of the order for compensation;
the amount of any income reasonably likely to be earned by Mrs Stien during the period between the making of the order for compensation and the FW Actual compensation; and

b.any other matter that the Commission considers relevant.

I consider each of these matters below.
For completeness, I note that s 392(4) provides that the amount ordered 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.
The amount must not exceed the lesser of half the high income threshold immediately before the dismissal, which was $83,750, or the amount of total remuneration received by the person or to which the person was entitled for any period of employment with the employer during the 26 weeks immediately before the dismissal. In circumstances where a person is on leave without pay, the amount of remuneration taken to have been received by the employee is to be determined by reference to the amount of pay the employee would have received during the period of leave if they had not been on leave without pay[16]. In Mrs Stien’s case, it was confirmed in evidence that she was paid $32.00 per hour working 30 hours a week, or $812.00 per week prior to the commencement of her parental leave. There was no evidence before me that this amount was thereafter indexed or increased. In the course of six months, Mrs Stien would have earned $21,112.00 had she not been on leave without pay (parental leave) during this period.

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

In its submissions, HAHP said the following in relation to the effect on its business an order of compensation in Mrs Stien’s favour would have:
“With the costs of running the business, having had to just pay out the leave entitlements to my most recent employee after their departure and operating at a reduced earning capacity; any compensation order would have a significant affect on the business. I am currently on a payment plan with the ATO for outstanding BAS contributions and these have been maximized by the ATO based on my previous capacity to service that arrangement. I am currently seeking a review of that, given the changing circumstances of the business.”
This submission is largely an assertion. There is no evidence before me that HAHP would be endangered as a business by an order that it pay Mrs Stien an amount of compensation – particularly not in the amount I intend to order[17]. There is evidence before me however that HAHP has suffered business pressures, including costs and cash flow difficulties. I therefore consider that while I have no evidence of “viability” being threatened, a significant order of compensation made against HAHP would have an impact on its business, and, had I intended to make an order of compensation of a more significant amount, I would have placed some further weight on the assertions made by HAHP in relation to this consideration. As it stands, I consider that the order of compensation I intend to make will, on the basis of the evidence before me, have only a minimal effect on the viability of HAHP’s enterprise.

Length of Mrs Stien’s service

Mrs Stien was employed by HAHP for around 27 months in total. This is not a long period of service but not a particularly short one either. I do not consider Mrs Stien’s length of service has a significant bearing on the amount of compensation that should be awarded in this matter.

Remuneration that Mrs Stien would have received, or would have been likely to receive, if Mrs Stien had not been dismissed

In determining the remuneration that Mrs Stien would have received, or would have been likely to receive, I am required to address myself to the question of whether if Mrs Stien’s employment had not been terminated, the employment would have been likely to continue or would have been terminated at some time by another means, and in doing so, make an assessment as to the anticipated period of employment[18].
My assessment as to Mrs Stien’s anticipated period of employment is that there was none. Mrs Stien’s role was made redundant in October 2024. Even if her employment had been terminated fairly (which it was not) it would not have continued past this time.
However, as I have explained in detail throughout this decision, HAHP was obliged to consult with Mrs Stien, and should have done so at least in early October 2024 when Mr Moore was contemplating making the role of office administrator redundant, if not before.
We do not know what the product of consultation between Mrs Stien and HAHP would have been. At the risk of undervaluing the benefit of consultation in circumstances of redundancy, including in respect to how sensible discussions taking into account employee feedback can often assist to mitigate the effect of operational changes, it seems to me unlikely that consultation would have avoided the redundancy in this matter, and likely that Mrs Stien would have been notified, following that consultation, that her role with HAHP was terminated.
In these circumstances, HAHP would have been obliged by s 117 of the FW Act to provide her with notice of termination. In Mrs Stien’s case, taking into account her length of service, she would have been entitled to 2 weeks' notice.
Mrs Stien was due to return to work on 23 October 2024 (12 months following the commencement of her parental leave, on 23 October 2023). She made a request, pursuant to 76 of the FW Act that this period be extended, however by 23 October 2024, Mr Moore had apparently not received that request and in any event, it was later refused when he did receive it.
Accordingly, on 23 October 2024, Mrs Stien was entitled to return to work. But it was at about this time Ms Moore made a decision her role was redundant. Having decided Mrs Stien’s role was redundant, in the circumstances, particularly where there was no work to do, a payment in lieu of notice would have been appropriate.
Section 117(2)(b) of the FW Act provides that a payment in lieu of notice is to be at least the amount the employer would have been liable to pay the employee at the full rate of pay for the hours the employee would have worked had the employment continued to the end of the minimum period of notice.
If Mrs Stien had returned to work on 23 October 2024 as she was entitled to do[19], not having had her parental leave extended and not having told her employment was terminated, obviously, she would have been entitled to be paid. The evidence before me was that Mrs Stien was paid $812.00 per week Thus, the amount HAHP would have been liable to pay Mrs Stien during the notice period she should have been provided with was $1,624.00.
In some circumstances, Mrs Stien may have also been entitled to a severance payment. However, HAHP is a small business and accordingly, the entitlement does not apply[20].

Efforts of Mrs Stien to mitigate the loss suffered by Mrs Stien because of the dismissal

Mrs Stien gave evidence that she now does not intend to return work in order to focus on the care of her children. It therefore appears clear she has not made any effort to mitigate her loss suffered because of the dismissal, by attempting to obtain other work. As this is a consideration I am required by the FW Act to take into account, had I intended to make an order of compensation with reference to what Mrs Stien would have earned in income during the weeks that followed her dismissal if her employment not been dismissed, her failure to attempt to reduce the loss of that income by attempting to find other work during that period would have impacted on any such award of compensation. However, because the order I intend to make refers instead to the payment in lieu of notice I consider she should have received, had her dismissal occurred fairly, no such impact arises.
These comments are not intended to be critical of Mrs Stien’s decision to seek to extend her parental leave or, after her employment with HAHP was terminated, to decide not to work to focus on the care of her children. These were entirely legitimate decisions. HAHP submitted that, on the basis Mrs Stien applied to extend her parental leave for 12 months, “the applicant must have already made arrangements for employment of some other means of earning money, prior to the redundancy”. I do not accept this submission: there was no evidence before me whatsoever to support it.

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

There was no evidence before me that Mrs Stien has earned remuneration from employment or other work since the dismissal of her employment.

Amount of income reasonably likely to be so earned by Mrs Stien during the period between the making of the order for compensation and the FW Actual compensation

There is no evidence before me that Mrs Stien is likely to earn any income between the time of the Order, I intend to make that she be paid compensation and the date the FW Actual compensation is paid to him.

Other relevant matters

As I have explained, I consider it relevant that, had Mrs Stien’s dismissal been affected in a fair manner, it is likely she would have been paid an amount of pay in lieu of notice.
As I have also explained, it appeared that Mr Moore sought to claim Mrs Stien had been provided with notice of termination of employment, particularly through the assertion made in the response to the application, that the effective date of dismissal was 25 December 2024 (two weeks following 11 December 2024, when Mrs Stien was told about the dismissal). When Mr Moore was interrogated about this assertion, two things became apparent. One was that Mr Moore did not tell Mrs Stien her dismissal was effective from two weeks hence or otherwise provide anything which might be described as “notice”. The other was that it was evident Mr Moore was aware he should have provided notice to Mrs Stien. This fortifies my view that it is appropriate in this matter to order that HAHP pay Mrs Stien an amount of compensation equivalent to a payment in lieu of notice calculated in accordance with s 117 of the FW Act taking into account her length of service.

Calculation of compensation

Often the methodology used in Sprigg v Paul Licensed Festival Supermarket[21] is used to calculate the order of compensation that might be made, although it is not mandatory this formula be used[22]. In this matter, I consider that, taking into account the considerations set out in s 392(2) (as I have) the calculation of compensation I intend to order HAHP to pay Mrs Stien is straightforward. The amount is two weeks' pay, calculated at $812.00 per week, or $1,624.00 less taxation as required by law, plus an amount of superannuation as set out below. I consider this level of compensation is appropriate having regard to all the circumstances of the case[23].

Compensation order

Given my findings above, I will make an Order[24] that HAHP must pay Mrs Stien $1,624.00 less taxation as required by law, plus a superannuation contribution into her nominated fund of $186.76, within 14 days of the date of this decision.

COMMISSIONER

Appearances:

Mrs Laura Stien, Applicant

Mr Peter Moore, for the Respondent

Determinative conference details:

2025
Melbourne:
20 February via MS Teams

[1] FW Act s 382

[2] Mary-Ann Bowler v Trojan Wake Ski and Snow Pty Ltd [2023] FWC 2871 [20]

[3] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FWC 591; cited in Re Model Terms for Enterprise Agreements and Copied State Instruments [2025] FWCFB 39

[4] Ianello v Motor Solutions Australia Pty Ltd[2010] FWA 3125; Paula Groszek v Toyvision International Pty Ltd [2015] FWC 697; Rajnesh Sharma v GTS Australia Pty Ltd[2020] FWC 6556 [28]; Francis Parriman v Waardi Limited [2024] FWC 914 [24]

[5] FW Act 2009 s 385(b)

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

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

[8] UES (Int’l) v Leevan Harvey [2012] FWAFB 5241; Darrell Kay v Fulton Hogan Construction Pty Ltd [2025] FWC 330 [79]

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

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

[11] Anita Cachia v Scobel Pty Ltd ARF the S&I Trust t/a Emerse Skin & Laser [2018] FWC 2648 [88]

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

[13] UES (Int’l) v Leevan Harvey [2012] FWAFB 5241 [47] Darrell Kay v Fulton Hogan Construction Pty Ltd [2025] FWC 330 [79]

[14] UES (Int’l) v Leevan Harvey [2012] FWAFB 5241 [48] Willian Gosling v Marine Manning Services Pty Ltd [2018] FWC 25 [66] – [69];

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

[16] FW Act s 392(6)(b); Fair Work Regulations 2009 reg 3.06

[17] See Nicholas Olson v Blue Mountains Water Brewery 1888 Pty Ltd [2019] FWC 902 [6]

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

[19] FW Act s 84

[20] FW Act s 121(1)(b)

[21] (1998) 88 IR 21

[22] Hanson Construction Materials Pty Ltd v Darren Pericich[2018] FWCFB 5960 [39]

[23] FW Act s 392(2); Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206 [17]

[24] PR784567

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