Ms Jessica Fraumano v Newport Medical Solutions Pty Ltd - [2025] FWC 2228

[2025] FWC 2228

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Jessica Fraumano
v

Newport Medical Solutions Pty Ltd

(U2024/13463)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 30 JULY 2025

Application for an unfair dismissal remedy

Introduction and outcome

On 12 November 2024, Ms Jessica Fraumano lodged an application with the Fair Work Commission (the Commission) under s. 394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Newport Medical Solutions Pty Ltd trading as First Choice Diagnostic (First Choice).

First Choice is a business which conducts workplace drug and alcohol testing. Ms Fraumano initially worked for First Choice through an agency conducting COVID tests. On 10 March 2022, Ms Fraumano began working for First Choice as a collector, employed on a casual basis.

On 3 October 2024, First Choice received numerous complaints from different employees about Ms Fraumano’s ‘inappropriate workplace conduct’. Ms Fraumano was suspended pending an investigation then dismissed on 23 October 2024.

In summary, I have found that there was no valid reason for Ms Fraumano’s dismissal. For this and other reasons I have determined that Ms Fraumano’s dismissal was harsh, unjust and unreasonable. I have decided that an order for payment of compensation is appropriate.

The hearing

As there are contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.

After taking into account the views of Ms Fraumano and First Choice, and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing pursuant to s.399 of the FW Act.

At the hearing, Ms Fraumano represented herself. First Choice was represented by Ms Rebecca Gall of Counsel. I granted permission to First Choice to be legally represented pursuant to s.596(2) of the FW Act, as I was satisfied that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

Ms Fraumano gave evidence on her own behalf and was cross-examined by Counsel for First Choice. The following witnesses gave evidence on behalf of First Choice:

a.Mr Namandeep Singh, HR Manager
b.Ms Jemma Lever, Operations Manager
c.Ms Deborah Winfield, Collector
d.Ms Georgina Gaussen, Chief Financial and Operating Officer

All of First Choice’s witnesses were cross examined by Ms Fraumano apart from Ms Gaussen whose evidence was admitted without objection.

Ms Fraumano filed submissions and evidence in the Commission on 4 March 2025. First Choice filed submissions and evidence in the Commission on 18 February 2025, and 11 March 2025. I have considered the submissions made by the parties and all of the evidence before me in my determination of this matter and the conclusions I have reached.

Background facts

Ms Fraumano commenced employment with First Choice on 10 March 2022 as a casual Collector which involved conducting drug and alcohol testing of employees of clients of First Choice. Ms Fraumano was employed as a Level 2 employee under the Health Professionals and Support Services Award 2020.[1]

Ms Fraumano’s duties included the following:

a.   driving to client sites;
b.   performing testing;
c.   ensuring compliance with the chain of custody;
d.   delivering the specimens to the laboratory;
e.   completing all necessary paperwork;
f.    receiving and managing all test materials and booklets;
g.   performing quality control testing.[2]

Ms Fraumano explained at the hearing that she was usually allocated about four rostered shifts and two callout shifts per week. Collectors would receive a roster in advance stating the time and location for each rostered shift. For call-outs, collectors were required to be available during a 24 hour period to respond to any unplanned requests from clients for testing. Ms Fraumano explained that most of the time, she attended a site by herself to perform drug and alcohol testing, but she might attend with a second collector if she was training the collector or if a large number of employees required testing. New collectors would always be paired up with experienced collectors during the first three months of their employment for ‘buddy shifts’ as part of their training program.

Ms Fraumano explained that collectors were provided with the phone numbers of all other collectors when they commenced employment. As testing locations were often large industrial sites, it was difficult for collectors to identify the precise testing location if they had not attended the site previously. Ms Fraumano said that she often received phone calls from collectors who were attending a site for the first time seeking advice about the location of the site. As Ms Fraumano had attended many sites previously, she would ‘pin-drop’ the location on a map and share this with other collectors.

Ms Fraumano explained that the First Choice office was only open from 8:00am to 4:00pm. Outside of those hours, collectors could only contact an emergency phone number but most of the time, the person who had the emergency phone was not familiar with the sites so calls would come straight to Ms Fraumano. Ms Fraumano said that most clients required their employees to be tested before work, so it was not unusual for shifts to commence at 4:00am. Ms Fraumano said she usually finished morning shifts by 10:30am or 11:00am.

Complaints about Ms Fraumano

Ms Fraumano’s employment was terminated on 23 October 2024 due to complaints made about her by three other collectors employed by First Choice, Ms Deborah Winfield, Ms Trish Pham and Ms Colleen Greenall.

On or about 1 October 2024, Ms Winfield received a telephone call from Ms Pham. According to Ms Winfield, Ms Pham wanted to meet with her to discuss their relationship which had been quite fractious over the previous six months. Ms Winfield said that she and Ms Pham had a conversation in words to the following effect:

Ms Winfield: I am so glad I have got someone to talk to as Jess [Fraumano] is running me down.

Ms Pham: Why?
Ms Winfield: She does nothing but call me, puts us down, complains about everyone, she is stoned off her face and she is not making sense. You can tell she is stoned.

Ms Pham:                 Deb, you know then?
Ms Winfield:             I know what?
Ms Pham:                  You know she is using drugs?
Ms Winfield:             100%.’
Ms Pham: I am going to make a complaint. A few times she has turned up for a shift and was stoned. She was definitely on something and always smoking. I have smelt plenty of marijuana in my time and you can smell it all over her.[3]

Ms Winfield said that she had a telephone conversation with Ms Pham on or about 3 October 2024 to the following effect:

Ms Pham: I have spoken to Gerard (Kitt) and told him if they do not do something about it [Ms Fraumano’s conduct] I will resign.
Ms Winfield: You are brave doing that. I do not want to get involved. This woman scares me. The people she knows scare me. Trish, I do not know what you want me to do with that. I am not putting my home and children in jeopardy. She has told me she has associated with tough people and she knows how to handle herself.’

Ms Pham: It’s up to you what you do.[4]

At about 10.00am on 3 October 2024 Mr Namandeep Singh, HR Manager, received a telephone call from Ms Jemma Lever, Operations Manager, and they had a conversation in words to the following effect:

Ms Lever: There’s been an HR issue. One of our Collectors has come and said there are allegations about verbal abuse and potential drug use as well.

Mr Singh:                  Can you please send through a written statement from the employee?
Ms Lever:                  Yep it is coming up.
Mr Singh:                 I will deal with the next steps when it comes through.[5]

At 11.26am on 3 October 2024 Ms Lever received the following email from Ms Pham, titled ‘I am speaking up’:[6]

Hi Guys,
I apologize for bringing this up, but I feel it's necessary to address some ongoing issues.
I've been observing certain behaviors that have made me uncomfortable. I've tried to stay out of it, as my primary goal is to work and earn my living. However, I can no longer ignore the situation involving bullying among colleagues, as well as concerns about privacy violations. Specifically, I've noticed that Jess seems to be getting inside information about other testers and admin matters from Mel.
I believe it's important for us to create a respectful and safe work environment for everyone. I want to clarify that I've never had a personal issue with Jess; we've always maintained a good working relationship. However, I've recently learned that she has been making complaints about me to other testers and Mel. It's been disheartening to see how she has twisted our interactions, which has affected my integrity. There's times she rocks up late, has not enough stock, swears and curses heavily on site, smokes on site, smells of cannabis from her .. I have never reported her. I worked with her on Monday and she reported me for sending a donor away .. there was one guy waiting to get tested and I had a non-neg and I politely asked him to go to the first aid because there's no one there. She also told Mel I signed off before the job ended. I am sorry, I am very disgusted by her behaviour. I was asked to sign off by Peter because he said we are done. Not until I had packed up and walked to the gate to meet Jess he said there was one missing, so he was looking for that donor. I don't understand her problem .. I waited for her to finish and we would walk out together. I never rang her to say I am leaving to go to the lab first .. how dare she twisted the scenarios to make me look like I am such a bad worker? Who does she think she is? I have attached a screenshot of her writing to Deborah .. if she can report everything us testers do .. well .. I will report everything she does AND I am not the only one that sees it.
I hadn't intended to come forward about Jess's behavior, but after witnessing her harassment and disrespect towards Colette and Deborah, I felt I had to speak up. This behavior needs to stop. Jess often makes disparaging comments about other collectors and FCD on site, speaking so loudly that it's embarrassing for everyone. It's as if she believes she is above us all and can belittle the rest of the testers.
None of us are perfect; we all make mistakes and occasionally forget things. However, we strive to support and respect one another. Jess seems to lack that respect entirely. She would help us out on site, then would go to report to Mel and complain to other testers. I know Deborah is hesitant to come forward, even though we've had our misunderstandings in the past and resolved them maturely. Given how Jess has treated her, I feel compelled to speak up before it affects Deborah further. I have concerns that Jess may be using drugs, though nothing is confirmed without testing. She has mentioned that if she ever has to take a drug test, she knows how to cheat. Additionally, she has shared details with Deborah about how to circumvent the test, which is alarming. I sincerely hope she doesn't share this information with the donors.
I do hope I am wrong about her taking drugs. She did admit she is on medicinal cannabis to Deborah .. but my words are not valid. unless you hear it from Deb, because this is the conversation between them two.
You might consider doing a hair test on her.
I believe it's important for us all to be held to the same standards to maintain a fair and respectful working environment.
Please hear both Colette and Deborah's story, it's very frightening
warm regards,
Trish

The email attached a screen shot of a message which Ms Deborah Winfield sent to Ms Pham earlier that day which stated:

She said that she told donors to report you to the office because you sent them away and told Mel you signed off before the job ended and you showed up at a job with only 12 urine devices
When I asked why Jess everyday every shift you feel the need to report someone her response was
Dude because you pricks think you can just change rules to suit yourselves the office and Mel have a right to know
I said anyway have to get petrol and hung up[7]

Ms Lever then forwarded a copy of the email from Ms Pham to Mr Singh. After Mr Singh read the email, he decided that it would be appropriate to ‘stand down’ Ms Fraumano pending an investigation into the allegations made by Ms Pham.[8]

On 3 October 2024, Ms Fraumano received a phone call from Mr Singh, advising her that there had been serious allegations made against her, and that she would be suspended without pay, pending an investigation, effective immediately.
Ms Fraumano stated that two days prior to the telephone call from Mr Singh, she had received a text message from Ms Lever, stating that she was a valuable employee. This followed on from internal recognition for exemplary service to a client.[9]

Later that day, Ms Fraumano received a letter from Mr Singh which specified the allegations made against her, including potential drug use during working hours on site, verbal harassment of colleagues, and smoking on site during working hours.[10]

Ms Winfield said that on 3 October 2024, she had her last telephone interaction with Ms Fraumano. Ms Winfield said that during the conversation, Ms Fraumano sounded like she was affected by drugs as she was slurring her words and she had a ‘disjointed train of thought’.[11] At the hearing Ms Fraumano explained that she was ‘a mess’ during this phone call with Ms Winfield as she had just been informed by Mr Singh that she was suspended. Ms Fraumano said that she had a further call with Ms Winfield later that day in which she said that she was extremely frustrated at the situation and would likely have sworn.[12] Ms Fraumano said she thought she was having a discussion with a supportive friend and was unguarded in her language and anger at the unfairness of the situation. Approximately two hours after the phone call, Ms Fraumano and Ms Winfield had the following text exchange:

Ms Fraumano: …Please just promise me do not repeat. Anything I have said to you today.
Ms Winfield: Jess please of course I won’t
This is a very serious matter not school yard crap

Ms Fraumano: Thank you
Ms Winfield: If she calls back I will call you yeah[13]

On Saturday 5 October 2024 at 12:47pm, Ms Winfield sent Ms Fraumano a text messaged in the following terms which Ms Fraumano ‘liked’:

Hey are you ok?[14]

Ms Winfield said that Ms Greenall would also often telephone Ms Winfield about her interactions with Ms Fraumano. On or about 5 October 2024 Ms Winfield had a telephone conversation with Ms Greenall in words to the following effect:

Ms Greenall: I have a private meeting with Jemma to put in a complaint about Jess [Fraumano] and lodge a bullying complaint.

Ms Winfield: You are brave. Are you OK?
Ms Greenall: This is so draining. I am scared. I thank Trish for what she has done but she has now put us in this terrible position where now we have to come forward with a complaint.[15]

Ms Winfield said that because of the fear that Ms Greenall expressed to her about lodging the complaint, she felt she had to support her by also lodging a complaint about Ms Fraumano.[16] Ms Lever gave evidence that Ms Greenall died in November 2024.

On 7 October 2024, Ms Winfield provided a letter to Ms Lever in which she outlined a number of concerns about the conduct of Ms Fraumano.[17] Shortly after Ms Lever received the letter she forwarded a copy to Mr Singh.[18] The letter included the following:

Ms Winfield met Ms Fraumano during her employment as a drug and alcohol tester with First Choice and was paired with her for various shifts. During initial interactions, Ms Fraumano was friendly, providing pin drops to locations for various sites.
After some time, Ms Winfield noticed behaviour that appeared to be out of character for Ms Fraumano, including that she appeared to experience periods of anger, disorganisation, and fatigue.
When Ms Winfield queried this, Ms Fraumano informed Ms Winfield that she was using medicinal marijuana as pain relief due to an oral cancer diagnosis a year ago, and a white tail spider bite.
Ms Winfield inquired about the legality of Ms Fraumano driving under these circumstances. Ms Fraumano said that she used the ‘Waze’ app to identify police checkpoints to avoid.
On 16 July, 2024, Ms Winfield received a call for a site visit in Bilpin, NSW, as the scheduled collector had cancelled due to a car breakdown. During Ms Winfield’s journey to the site, she received a call from Ms Fraumano, who was irate, raising her voice and using expletives. Ms Fraumano questioned whether Ms Winfield was fulfilling the call-out, explaining that she had been 20 minutes away when her gearbox failed. Ms Fraumano stated she was at a garage and unable to use her vehicle. Ms Winfield attempted to reassure Ms Fraumano and suggested she would call back after her shift. Approximately 20 minutes before arriving at the site on Bells Line of Road, Ms Winfield was stopped at a police checkpoint and subjected to drug and alcohol testing.
After her shift, Ms Winfield contacted Ms Fraumano to confirm her location for a ride home. Ms Fraumano informed Ms Winfield that she had driven home ‘using one gear.’ Ms Winfield mentioned the police checkpoint, to which Ms Fraumano remarked, ‘See, the angels are watching over me because that's the only road in.’ Ms Winfield said despite her earlier claims of a blown gearbox, Ms Fraumano was able to drive to her early morning shift on 17 July without any repairs.
Approximately one week after this occasion, there were multiple days where Ms Fraumano overslept and subsequently ran late to her shifts. On the first instance, Ms Fraumano called Ms Winfield around lunch time, yelling and swearing, that, ‘typical [Ms Fraumano] would sleep in when [she] has to work with Lachlan’. Ms Winfield felt obliged to try to calm Ms Fraumano, as she was yelling into the phone and directing slurs and expletives towards motorists as she drove.
The following morning, Ms Fraumano and Ms Winfield were scheduled for an early shift at Badgerys Creek. After Ms Winfield texted Ms Fraumano to indicate her arrival, Ms Fraumano called back, furious that Ms Winfield had not woken her. Ms Winfield informed Ms Fraumano she was still at home and continued to yell. Ms Winfield advised Ms Fraumano to come in as soon as possible, and began the shift without Ms Fraumano.
A few days later, Ms Winfield received another early morning call from Ms Fraumano, who was irate, yelling about forgetting her cigarettes and running late to her classroom testing shift in Homebush due to oversleeping.
Ms Winfield said that there have been many other occasions where Ms Fraumano has contacted her via phone, both to complain about the office and other staff, and to berate Ms Winfield. Ms Fraumano has constantly said things such as Ms Winfield should never have been hired, Ms Fraumano should be getting paid more, Ms Fraumano is more valuable than the rest of the employees, she is the only one who will go anywhere, and that she takes up to 50 calls every day to mentor and assist other collectors.
Ms Winfield said that these phone calls to her occurred often, up to 5-6 times per day. If Ms Fraumano did not answer, there are often more calls attempted and voicemails left. The calls were made at all times of the day, night, and early morning, usually when Ms Fraumano was travelling in the car, and Ms Fraumano expected Ms Winfield to remain on the phone with her for the duration of her trips.
In the last 3 - 4 months, Ms Winfield said that the challenging behaviour exhibited by Ms Fraumano had intensified. Specifically:
oTwo weeks or so before receiving her pay, Ms Fraumano’s behaviour is heightened. Ms Winfield feels that she is more irate and volatile, and her vitriol towards Ms Winfield and other staff is deplorable, stating things like they are greedy for taking shifts, Ms Fraumano should be paid more, and how useless the office is.
oOn one occasion during a phone call, due to cutting/stamping sounds, Ms Winfield asked Ms Fraumano if she was currently using drugs. Ms Fraumano stated yes and that if she was ever subjected to a ‘piss test,’ there were ways she could falsify the results.

Ms Winfield felt that Ms Fraumano's drug use and aggressive behaviour have escalated in recent months. Ms Winfield’s time has been disproportionately consumed by Ms Fraumano's calls, where she finds herself constantly needing to validate Ms Fraumano's concerns and provide reassurance regarding Ms Fraumano's value to the company. This has resulted in Ms Winfield feeling exhausted and having difficulty disconnecting from work during personal time. Ms Winfield experiences anxiety when Ms Fraumano's calls come in, knowing that if she does not answer, Ms Fraumano will persistently call or leave voicemails.
At the time of writing the letter, Ms Winfield’s last interaction with Ms Fraumano was on 3 October 2024. Ms Winfield believed that Ms Fraumano was drug affected. Ms Fraumano stated she was going to ‘spend the next couple of days wasting herself’ and then ‘hydrate herself for the next week’ in case she gets tested.
Despite these challenges, Ms Winfield believes that Ms Fraumano is fundamentally a good person and that if she received the appropriate assistance for her drug use, her challenging behaviour and need for validation could be better managed.[19]

Ms Winfield said that she denied any suggestion or accusation that she colluded with Ms Pham and Ms Greenall in respect of their complaints and found this suggestion offensive.[20]

On 9 October 2024, Ms Lever had a conversation with Ms Greenall. Ms Lever gave evidence that Ms Greenall said the following during the conversation:

There have some things I have witnessed of Jess and her behaviour and it does not sit right with me or for the company. I am not enjoying my role with the company because of Jess’ behaviour. I receive numerous telephone calls from her, she would get really angry with me if I did not answer her immediately. Her contact is excessive. Jess would also bad mouth the company and the people within the company and that makes me feel very uneasy. I was on a job with Jess and she spoke to the customer in a rude manner. I suspect Jess to be under the influence of something because she vomited on site once. At the Ventia job she was pacing up and down outside the office and chain smoking. She then vomited in the bathroom and I had to clean it up. I felt like she had overdosed on something. Every time I am on the phone with her I can hear her sounds like lighting a bong in the background. She has also made excuses when she cannot attend jobs at work, I know that she has contacted the office saying that her car had problems but it was a lie to cover up her sleeping in and being late to the site which I suspect is due to drug use. She would also tell me that she would sleep in her car. She told me that she uses Waze all the time to avoid being stopped by Police for random testing. She has told me that used the lie of the gear box in her car breaking because she missed a job. She would always turn up late to the site past the arrival time. The other thing is that she always smokes on site and never off site.[21]

Ms Lever sent Mr Singh an email on 9 October 2024 which set out the summary of the conversation as follows:

Notes:
- Marijuana notified collector she is on MM.
- Car smells
- Can hear things in the background on the phone (like a bong - tap tap tap, lighter flick, crackling)
- Sleeps in but uses a car excuse
- uses Waze to track police
- used gear box story same as XXX
- turns up late
- use to call daily and continue to contact until collector picks up and would use offensive ruse language on the call about other collectors behaviour with site contacts is inappropriate, talks about other collectors
- smoke on site
- threatened to report collectors to the office
- Ventia Job - Jess was pacing, chain smoking outside the office and then she vomited in the bathroom and the second collector has to clean it up, she blamed it on a hot chocolate she drunk. The site didn't see it happen as they were in a toolbox. Collector feels she overdosed on something.[22]

Disciplinary investigation

A meeting to discuss these allegations was scheduled between Ms Fraumano, Ms Lever and Mr Singh for 11 October 2024, however, this was rescheduled to 15 October 2024, at Ms Fraumano’s request, as her daughter, who was her support person, was unwell.[23]

On 11 October 2024 Ms Fraumano sent Mr Singh an email indicating that she would like to bring Ms Melissa Errington, Administration Officer, as her support person. Mr Singh advised Ms Fraumano that Ms Errington was not an appropriate support person because she was an employee of First Choice and a potential witness. Mr Singh invited Ms Fraumano to bring another support person.[24]

On 11 October 2024, Ms Fraumano sent Mr Singh a further email in which she advised that she did not know many people in Sydney to be a support person and therefore requested further details about the allegations. Mr Singh replied to the email on 14 October 2024 and stated that due to concerns about the confidentiality of the identity of the complainants there were no further specific details that could be provided.[25]

On 15 October 2024, Ms Fraumano attended a meeting with Ms Lever and Mr Singh. Ms Fraumano did not have a support person present. Ms Fraumano said that she was not presented with any evidence to support the allegations made against her during or prior to the meeting. During the meeting, the original letter was discussed, and Ms Fraumano repeated her request for evidence. Ms Fraumano claims that this was denied due to internal privacy concerns.

Mr Singh prepared a script of questions for the meeting and recorded Ms Fraumano’s responses next to the questions as follows:[26]

Mr Singh: There have been reports that you may have been smoking in the workplace. Can you share your side of the story regarding this?

Ms Fraumano: Don't take cigarettes on site

Mr Singh: It's been alleged that some of your colleagues felt uncomfortable with certain language or behaviour that you have used while working and communicating with them, including through excessive calls and voice mails. This has caused them quite a bit of anxiety, stress and difficulty getting their jobs done - we need to ensure that our employees are able to work in an environment where they don't feel anxious or stressed. Some examples include shouting at your colleagues, using expletives or swear words, speaking down at colleagues and making disparaging comments about them and the FCD office. Are you aware of any interactions which sound familiar to what I've just described?"

Ms Fraumano: Trish stopped testing whilst she had 3 left, and had sent them to Jess
Phone tag with collectors for personal reasons, checking in on them
Gets calls at 4am about work related questions

Mr Singh: Can you describe any recent interactions where you may have been involved in disagreements or conflicts?

Ms Fraumano: Trish example above
Mr Singh: When you reflect on your interactions with your colleagues, do you think there might have been times when your words or actions could have been perceived as offensive or aggressive?"
Ms Fraumano: Shouting over the phone may have been done unintentionally. Volume of voice could be misconstrued the wrong way. Loud sites will mean jess will raise her voice so she can be heard

Mr Singh: What is your approach to managing conflicts or disagreements with colleagues? Have you faced any such situations recently?
Ms Fraumano: Speak to the collector and see what the problem is, and let it go, and go no further.

Mr Singh: Can you describe the general atmosphere or work environment in your department? Have there been any challenges or issues that might have contributed to tensions?
Ms Fraumano: Gets calls from collectors who are whinging and having a vent. She takes on their burden, and if they are not happy, look for something else. - may have been taken the wrong way.

Mr Singh: How would you describe the workplace culture with the Sydney team?
Ms Fraumano: Divide been Syd and West Syd. Not fair for western Sydney going to toolboxes.
Sydney team feel privileged. - Jess not happy with the divide.

Mr Singh: Has anything changed recently that may have affected your mood or behaviour at work?

Ms Fraumano: Collectors getting more and more lazy
Trish - will get everyone to try and cover her FCD shifts
Excuses used to cover the shift that jess dislikes

Mr Singh: What steps do you think could be taken moving forward to resolve any concerns and ensure a positive work environment?"
Ms Fraumano: Jess wants the collectors spoken to about the assumptions made about her. She feels collectors are talking to each other and then reporting her.
Comes back to the divide and causes the problems
Collectors are scared to approach the office because they feel there will be repercussions.

Mr Singh: If someone was feeling uncomfortable with your behaviour, how would you prefer they approach you about it?
Ms Fraumano: Jess doesn't want to have any outside communication with the collectors. She feels this will put more pressure on the office.

Ms Fraumano: Medicinal Marijuana:
Reviewed yesterday herself with GP
Letter requested to the doctor. - same info.
THC flower side - used between waking up - treat as pain as needed. If don't have pain, don't take it, and
will take the CBD oil instead. Can take it when returning home from week if needed.
Used in the day only.
Will show in her system.
Taken for mental and pain - for undiagnosed ADHD (suspected) and pain relief
Getting assessed on ADHD
Refer to image
Prescribed up to 6 sticks per day
Can't take it when you're on call - will take CBD oil only
Restless and in pain when not taking it.
CBD oil: no THC, once in morning, and once at lunch time

Mr Singh: Anything else you want to share (noting confidentiality)?
Ms Fraumano: Jess will send pin drops for sites to eliminate collector contact

In his witness statement, Mr Singh summarised Ms Fraumano’s responses at the meeting as follows:
·     she admitted that she had read and understood the Code of Business Conduct and Ethics (CBCE);
·     she denied that she ever took cigarettes to site and therefore did not smoke on site;
·     she stated that the only tense or aggressive interaction that had occurred was on 3 October 2024 with Trish Pham in which she alleged that Trish Pham had failed to complete her job properly plus she also received a number of telephone calls from other collectors from 4.00am;
·     the shouting over the telephone was done unintentionally and could also be due to loud noises on site;
·     she was of the view that the Collectors were becoming more lazy and Ms Pham was always trying to have people cover her shifts;
·     she feels that the other Collectors have made assumptions about her and she does not wish to have any further contact with the Collectors. Moving forward she intended to send pin drops to other Collectors only to show the location of the customers;
·     she admitted using medicinal cannabis which had included the THC flower side when waking up and CBD oil for mental health reasons, pain and her condition of ADHD. She had been prescribed up to 6 sticks per day but she only uses the CBD oil when she is oncall which has once in the morning and once at lunch time.[27]

Mr Singh said that Ms Fraumano showed him prescriptions for THC flower and CBD oil on her phone.[28]

Mr Singh said that having regard to the answers provided by Ms Fraumano which were completely at odds with three other witnesses, and the fact that Ms Fraumano admitted that she had read the CBCE, he no longer had trust and confidence in Ms Fraumano to perform her duties in an appropriate manner and without placing the other Collectors at a risk of injury because of her behaviour. Mr Singh said that he was also concerned about the admission by Ms Fraumano that she was consuming cannabis on a regular basis when performing duties for First Choice.[29]

On 17 October 2024, Mr Singh sent a letter by email to Ms Fraumano which confirmed that First Choice believed that Ms Fraumano had engaged in verbal harassment of her co-workers and that this had created a physical and a psychosocial safety risk which placed First Choice in potential breach of its duties under the Work Health & Safety Act 2011 (NSW). Ms Fraumano was requested to show cause as to why her employment should not be terminated by 4.30pm on 18 October 2024 in writing.[30]

On 18 October 2024, Ms Fraumano provided a response by email in which she denied the allegations and stated they were frivolous, vexatious and unsubstantiated. Ms Fraumano also demanded that all the evidence in support of the allegations be provided by 25 October 2024 and then she intended to respond seven days later.[31] On 21 October 2024 Mr Singh sent an email to Ms Fraumano extending time for the response to the show cause letter until 22 October 2024.[32]

On 22 October 2024, Ms Fraumano sent Mr Singh an email in which she requested evidence of the complaints by 25 October 2024 and then re-stated that she denied the allegations and described them as frivolous, vexatious and unfounded.[33]

On 22 October 2024, Mr Singh had a discussion with Ms Georgina Gaussen, Chief Financial and Operating Officer and Ms Lever about Ms Fraumano’s employment. As allegations had been made by three work colleagues, they formed the view that Ms Fraumano had engaged in inappropriate workplace conduct which had created a risk to the health and safety of other employees and decided that they had no choice but to refuse to offer Ms Fraumano further employment.[34]

On 23 October 2024, Ms Fraumano received a termination letter.[35] The reason for termination was verbal harassment of Ms Fraumano’s colleagues, including the use of inappropriate language, swearing and excessive shouting (including over the phone and in person). The letter of termination relevantly provided:

Note that these allegations were provided to us in writing by multiple FCD employees. These written accounts were treated with strict confidentiality and formed a crucial part of the investigation. During the investigation process, the credibility and sincerity of these allegations were thoroughly assessed to ensure fairness.

It appears from the letter of termination that the following allegations were not substantiated:

Making disparaging comments about the company and other employees
Alleged use of drugs and/or smoking during work hours

Four days later, on 27 October 2024, Ms Fraumano received a ‘TikTok’ message from Ms Winfield which stated:

GOD never sends you into a situation alone. GOD goes before you. HE stands beside you. HE walks behind you. Whatever situation you are in right now, be confident. GOD is with you.[36]

Ms Fraumano said that she was unsure how Ms Winfield would have known that she had been terminated unless she was informed by someone within First Choice Diagnostic.[37]

Ms Fraumano’s responses to the allegations at the hearing

Ms Fraumano was not provided with the identity of the complainants or particulars of the allegations prior to the termination including dates, times or locations of her alleged misconduct.

This information formed part of First Choice’s evidentiary case at the hearing. Ms Fraumano provided the following responses to that evidence at the hearing.

Ms Pham’s complaint

Ms Fraumano said that she previously reported Ms Pham to Ms Lever in relation to two incidents. On 30 September 2024, four days before Ms Pham made the complaint, Ms Fraumano and Ms Pham were working at the John Holland site at the Rozelle Interchange in Sydney and carrying out testing three floors apart from each other. Ms Fraumano said that Ms Pham received a ‘non negative result’ from an employee, stopped testing the remaining employees and sent these employees down three floors of stairs to be tested by Ms Fraumano. Ms Fraumano said that there was no reason for Ms Pham to stop testing employees when she received a non negative result and that her actions resulted in the job taking longer than it should have. Ms Fraumano reported Ms Pham for this matter and also for Ms Pham’s behaviour and her poor treatment of a client who Ms Pham referred to as a ‘junkie.’[38]

Ms Fraumano said that she also made a complaint about Ms Pham when they were both testing rail employees in the same room at Bankstown. There were 50 employees booked for testing but Ms Pham only had 10 testing kits. Ms Fraumano said that she was concerned about the privacy of employees when two employees were being tested in the same room and that Ms Pham should have insisted that the client provide a separate testing room but did not do this. Ms Fraumano complained about Ms Pham in relation to this issue and also because Ms Pham brought insufficient kits to the job.

Ms Fraumano said that she only worked five shifts with Ms Pham from the period from June to October 2024 and that Ms Winfield and Ms Greenall were not on these shifts, so she did not understand how Ms Pham could say that she witnessed Ms Fraumano disrespecting and harassing Ms Greenall and Ms Winfield. Ms Fraumano said that many collectors were frustrated with Ms Pham because she worked for another drug and alcohol testing company and constantly asked people to cover her shifts.

In relation to Ms Pham’s allegations that Ms Fraumano used drugs, Ms Fraumano explained that she disclosed to First Choice that she went through an approval process to be prescribed medicinal cannabis about two years earlier and that she had been stood down at that time pending First Choice receiving advice from her doctor that it was safe for her to work. Ms Fraumano’s doctor worked on a treatment plan to ensure that Ms Fraumano could still perform her duties which included not using THC while on shift or 10 hours prior to her shift when on call.

In relation to Ms Pham’s allegations that Ms Fraumano arrived at work late, swore on site and smoked on site, Ms Fraumano denied that she swore on site and said that she arrived late on only three occasions and had smoked on site on one or two occasions before the commencement of her shift in designated smoking areas. Ms Fraumano said First Choice clients would have been able to verify Ms Fraumano’s arrival times and that she did not smoke or swear on site.

Ms Winfield’s complaint

In relation to Ms Winfield noticing behaviour that appeared to be out of character for Ms Fraumano, Ms Fraumano said that in June 2024, her daughter was struggling with mental health issues and her stepmother had a heart attack and underwent heart surgery so throughout that time, her patience might have been a bit thin as she was stretched pretty far. Ms Winfield gave Ms Fraumano advice about her daughter and interpreting her stepmother’s medical results because she was a nurse.

In relation to Ms Fraumano informing Ms Winfield that she was using medicinal marijuana as pain relief due to an oral cancer diagnosis a year ago, and a white tail spider bite, Ms Fraumano said that although these incidents occurred, she did not tell Ms Winfield that she was using medicinal marijuana for these reasons.

In relation to the job at Bilpin on 16 July 2024, Ms Fraumano said that she was attending a call out job on behalf of another collector when her gearbox failed. Ms Fraumano advised the office of her unavailability who then allocated the job to Ms Winfield. Ms Fraumano called Ms Winfield to ensure that the job had been reallocated and that Ms Winfield was aware of the location. Ms Fraumano was not irate but may have raised her voice out of panic. Ms Fraumano said that she has an NRMA statement which shows that NRMA attended and fixed her gearbox.

Ms Fraumano denied Ms Winfield’s allegations that there were multiple days that she overslept and ran late to her shifts. Ms Fraumano said that allegations that she arrived late could be checked through the screening forms or job sheets which recorded the arrival and departure times of collectors.

Ms Fraumano said that she and Ms Winfield were friends and often talked about issues with their families. They called each other often and would ‘vent’ about work and other issues. Ms Fraumano said that she sometimes expressed frustration during these calls and that she occasionally said f**k but that Ms Winfield would also swear back. Ms Fraumano agreed that she and Ms Winfield could talk 5-6 times a day but said that Ms Winfield called Ms Fraumano as much as Ms Fraumano called Ms Winfield. Ms Fraumano denied that she was aggressive or abusive towards Ms Winfield.

Ms Fraumano denied Ms Winfield’s allegations that Ms Fraumano told her that she should have never been hired. In Ms Winfield’s witness statement, she claimed that Ms Fraumano said the following to her in June 2024 (which Ms Fraumano denied):

Anthony and Collette (Greenall) do not have enough shifts. Can you see how f******g stupid it is that you were brought on. You should have been a f******g spare. It’s not like you are like the rest of us and have years of experience. You are always going to be f******g new. You are always going to be the last one in.

Ms Winfield said that Ms Fraumano would refer to Ms Winfield as ‘the last one in’ or ‘the last man’ or ‘Last Man in’. Ms Fraumano denied this and said that in fact it was Ms Winfield who referred to herself as the ‘Last Man in’ and that and Ms Winfield was allocated what she described as the ‘scraps’. Ms Fraumano said that Ms Winfield did not think that it was fair that she was on call for Wollongong.

Ms Fraumano said that Ms Winfield was never allocated shifts which were ordinarily allocated to Ms Fraumano, but that Ms Pham and Ms Winfield clashed about taking each other’s shifts. Ms Fraumano also said that a collector called Anthony and Ms Greenall realised that Ms Winfield was taking shifts that they were ordinarily allocated. Ms Fraumano knew that Anthony and Ms Greenall were talking about this and thought it was important that she made Ms Winfield aware.

Ms Fraumano denied taking illicit drugs and saying that she could falsify a drug test. Ms Fraumano said that all of the collectors were aware of strategies which people being tested could employ to avoid an accurate drug test.

Ms Fraumano denied that she was more irate and volatile two weeks before receiving her pay, that she was vitriolic towards staff and that she said that the office was useless. Ms Fraumano said that she expressed concern to Ms Winfield about Western Sydney based collectors being disgruntled about being allocated jobs in Sydney and Sydney based collectors being disgruntled about being allocated jobs in Western Sydney. As everyone was paid $50 for travel, this created unfairness for collectors who were required to travel long distances.

Ms Greenall’s complaint

Ms Fraumano explained that she met Ms Greenall when she training Ms Greenall on buddy shifts and that their relationship developed into a friendship where Ms Greenall was ringing Ms Fraumano constantly to talk about her family, including her mother and sister. Ms Greenall complained about Ms Pham and they did not get on well. As far as Ms Fraumano was aware, she had a good relationship with Ms Greenall. She denied that she behaved inappropriately towards Ms Greenall. Ms Fraumano said that Ms Winfield and Ms Greenall were contacting Ms Fraumano to a point where her family was angry because she would be on the phone with them for hours every day.

In relation to Ms Greenall’s statement that Ms Fraumano vomited at a Ventia job, Ms Fraumano said that she was unwell because she had drunk a hot chocolate made with long life milk, which did not sit well in her stomach.

In relation to Ms Greenall’s statement that Ms Fraumano would sleep in her car, Ms Fraumano said that if she was doing a job at 11pm followed by a job which started early the next morning, she would sleep in her car for fatigue management as she was likely to get more sleep in her car than if she drove home and back again between jobs.

In relation to Ms Greenall’s statement that Ms Fraumano uses an app called ‘Waze’ all the time to avoid being stopped by Police for random testing, Ms Fraumano said all collectors use ‘Waze’ as this is the best way of getting up to date information about traffic.

When can the Commission order a remedy for unfair dismissal?

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

(a) the Commission is satisfied that the person was protected from unfair dismissal at the time of being dismissed; and

(b) the person has been unfairly dismissed.

Both limbs must be satisfied. I am therefore required to consider whether Ms Fraumano was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that Ms Fraumano was so protected, whether Ms Fraumano has been unfairly dismissed.

When has a person been unfairly dismissed?

Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission 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.

Initial matters

First Choice initially objected to the application on the basis there could not be any dismissal on 23 October 2024 because Ms Fraumano was a casual employee. This objection was misconceived and inconsistent with the terms of the letter which First Choice issued to Ms Fraumano on 23 October 2024 which plainly stated that First Choice had made the decision to terminate Ms Fraumano’s employment. First Choice subsequently withdrew this objection. Based on the evidence before me, I find that Ms Fraumano has been dismissed from her employment within the meaning of s.386(1)(a) of the FW Act so s.385(a) is satisfied.

Under s.396 of the FW Act, the Commission is obliged to decide the following matters 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.

I have determined these matters below.

Section 394(2) requires an application to be made within 21 days after the dismissal took effect.

Both parties submitted that the termination took effect on 23 October 2024. On 12 November 2024, Ms Fraumano filed an Unfair Dismissal application with the Commission. I am therefore satisfied that the application was made within the period required in s.394(2).

Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

First Choice initially claimed that Ms Fraumano had not completed the minimum employment period because she was not a regular casual employee, however First Choice later withdrew this objection. This objection was also misconceived as the rosters provided by Ms Fraumano establish that she was a regular casual employee throughout her employment with First Choice. As such, I find that at the time of dismissal, Ms Fraumano completed at least the minimum period of employment with First Choice.

It was not in dispute, and I find that a modern award covered Ms Fraumano’s employment.

I am therefore satisfied that, at the time of dismissal, Ms Fraumano was a person protected from unfair dismissal.

It was not in dispute, and I find, that Ms Fraumano’s dismissal was not a case of genuine redundancy and that the Small Business Fair Dismissal Code does not apply.

Having considered each of the initial matters, I am required to consider the merits of the application.

Was the dismissal harsh, unjust or unreasonable?

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 criteria, to the extent they are relevant to the factual circumstances before me.[39]

I set out my consideration of each of these criteria below.

Was there a valid reason for the dismissal related to Ms Fraumano’s capacity or conduct?

In order to be a valid reason, the reason for the dismissal should be ‘sound, defensible or well founded’[40] and should not be ‘capricious, fanciful, spiteful or prejudiced.’[41] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[42]

Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[43] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.[44]

The documentary evidence before the Commission provided by First Choice establishes the following facts:

·     Ms Pham made a complaint about Ms Fraumano on 3 October 2024 after Ms Fraumano complained about Ms Pham’s conduct on 30 September 2024.
·     On 1 October 2024, Ms Pham called Ms Winfield.
·     According to Ms Winfield, the relationship between Ms Pham and Ms Winfield had been ‘quite fractious over the previous six months’.
·     During the conversation on 1 October 2024, Ms Pham and Ms Winfield expressed the opinion to each other that Ms Fraumano was ‘using drugs’. Ms Pham informed Ms Winfield that she intended to make a complaint to First Choice about Ms Fraumano.
·     Ms Pham made a written complaint to First Choice on 3 October 2024 after informing Mr Gerard Kitt, Sales and Operations Manager, that she would resign if First Choice did not do anything about Ms Fraumano’s alleged conduct.
·     In the complaint, Ms Pham referred to Ms Fraumano’s complaint about her conduct on 30 September 2024 and said, ‘if she can report everything us testers do .. well .. I will report everything she does AND I am not the only one that sees it.’
·     Ms Pham acknowledged that she and Ms Winfield had ‘misunderstandings in the past’.
·     Ms Pham also referred to ‘witnessing [Ms Fraumano’s] harassment and disrespect towards Colette [Greenall] and Deborah [Winfield] and to conversations which Ms Pham had with Ms Winfield.
·     On 5 October 2024, Ms Greenall advised Ms Winfield that Ms Greenall had a private meeting with Ms Lever to put in a complaint about Ms Fraumano and lodge a bullying complaint and that Ms Pham ‘has now put us in this terrible position where now we have to come forward with a complaint’.
·     Because of the fear that Ms Greenall expressed to her about lodging the complaint, Ms Winfield felt she had to support Ms Greenall by also lodging a complaint about Ms Fraumano and did so on 7 October 2024.

The above chronology paints a concerning picture of the events leading up to the determination by First Choice that Ms Fraumano engaged in misconduct and that her employment should be terminated.

Although she initiated the complaint which culminated in Ms Fraumano’s dismissal, Ms Pham was not called to give evidence in the proceedings by First Choice for reasons which were never explained to the Commission. Based upon Ms Pham’s and Ms Winfield’s written acknowledgments about their fractious relationship and Ms Pham’s acknowledgment that she was ‘reporting’ Ms Fraumano because of Ms Fraumano’s complaints about Ms Pham, it is reasonable to infer that Ms Pham was a divisive and difficult work colleague. Ms Pham’s influence on her work colleagues extended to Ms Greenall feeling compelled to make a complaint about Ms Fraumano because she was named in Ms Pham’s complaint and that Ms Winfield in turn felt she had to make a complaint to support Ms Greenall. On this basis, I find that Ms Greenall and Ms Winfield would not have made complaints about Ms Fraumano if Ms Pham had not made the complaint on 3 October 2024. This finding is relevant to my consideration of whether the evidence establishes, on the balance of probabilities, that the conduct which led to Ms Fraumano’s dismissal occurred.

As noted above, the allegations by Ms Pham, Ms Winfield and Ms Greenall about Ms Fraumano using drugs and smoking, and making disparaging comments about First Choice and its employees, did not appear to be substantiated by First Choice and did not form any part of the reasons for Ms Fraumano’s dismissal. The dismissal was based only on First Choice’s finding that Ms Fraumano had engaged in verbal harassment of colleagues, including the use of inappropriate language, swearing and excessive shouting (including over the phone and in person).

At the outset, I note that there is uncontested evidence from Ms Fraumano that Ms Fraumano said that she only worked five shifts with Ms Pham from the period from June to October 2024 and that Ms Winfield and Ms Greenall were not on these shifts. I accept this evidence and find that Ms Pham did not witness harassment and disrespect by Ms Fraumano towards Ms Winfield and Ms Greenall as stated in Ms Pham’s complaint. Further, I note that Ms Pham did not complain in her email of 3 October 2024, that Ms Fraumano engaged in verbal harassment of Ms Pham. Based on this evidence, I find that Ms Fraumano did not engage in verbal harassment of Ms Pham including using inappropriate language, swearing and excessive shouting.

In relation to Ms Greenall, her complaint about alleged verbal harassment by Ms Fraumano is as follows:

I receive numerous telephone calls from her, she would get really angry with me if I did not answer her immediately. Her contact is excessive.

Ms Greenall also told Ms Lever that Ms Fraumano had been ‘harassing and verbally abusing her.’

Ms Greenall did not allege that Ms Fraumano used inappropriate language or engaged in swearing and excessive shouting. During the hearing, Mr Singh confirmed that he did not interview Ms Greenall or obtain further particulars from her in relation to the allegations. I accept Ms Fraumano’s evidence that she and Ms Greenall were friends, that they talked about both work and personal matters during phone conversations and that Ms Greenall initiated phone calls with Ms Fraumano. Having regard to this evidence and that Ms Greenall did not raise any complaints about Ms Fraumano prior to Ms Pham doing so, I find that there is insufficient evidence to establish on the balance of probabilities that Ms Fraumano engaged in verbal harassment towards Ms Greenall.

I note that Ms Winfield was the only complainant who gave evidence at the hearing. Ms Winfield was not an impressive witness. She was reluctant to respond to questions during cross-examination and on two occasions, it was necessary for me to direct Ms Winfield to respond to such questions. Ms Winfield’s demeanour was in contrast to Ms Fraumano’s. Ms Fraumano was direct and open, and prepared to make concessions about matters such as raising her voice and swearing. I find Ms Fraumano to be a genuine and credible witness. Having regard to the evidence of both Ms Winfield and Ms Fraumano and the surrounding circumstances, I prefer the evidence of Ms Fraumano rather than Ms Winfield in relation to Ms Winfield’s complaints about Ms Fraumano.

These circumstances include Ms Winfield’s text messages to Ms Fraumano on 3, 5 and 27 October 2024 which were kind and caring, and totally inconsistent with the behaviour of a person who had been previously told by the recipient of the messages that it was ‘f*****g stupid’ that she was brought on and that she should have been ‘a f*****g spare’. The circumstances also include that prior to October 2024, Ms Winfield did not appear to ever believe that the alleged behaviour of Ms Fraumano was sufficiently serious to justify making a formal complaint, that she was only making a complaint to support Ms Greenall and that she concluded her complaint on 7 October 2024 by stating that she believed that Ms Fraumano is fundamentally a good person. It follows that I am not satisfied that Ms Fraumano engaged in verbal harassment of Ms Winfield.

Based on the evidence, I believe that it is likely that Ms Fraumano and Ms Winfield contacted each other regularly to discuss personal issues, that they both ‘vented’ and swore during these conversations because this was a mutually acceptable form of communication, that Ms Fraumano shouted unintentionally at times because she was sometimes in a noisy environment when participating in these calls and that her behaviour may have been affected as she was not her usual self in June 2024 because of personal difficulties that she was experiencing with her daughter and step mother.

In my view, if First Choice had taken the time to properly interview Ms Pham, Ms Winfield and Ms Greenall about the complaints, which Mr Singh conceded did not occur, First Choice would have concluded that Ms Winfield and Ms Greenall were pressured by Ms Pham to make the complaints and that any issues arising from the friendship between Ms Fraumano, Ms Winfield and Ms Greenall which affected their working relationship could be dealt with by mediation.

I conclude that the evidence before me does not establish on the balance of probabilities that Ms Fraumano engaged in verbal harassment of her colleagues, including the use of inappropriate language, swearing and excessive shouting (including over the phone and in person) and as such there was not a valid reason for the dismissal related to Ms Fraumano’s capacity or conduct (including its effect on the safety and welfare of other employees).

Was Ms Fraumano notified of the valid reason?

Proper consideration of s.387(b) requires a finding to be made as to whether Ms Fraumano ‘was notified of that reason’. Contextually, the reference to ‘that reason’ is the valid reason found to exist under s.387(a).[45]

As I am not satisfied that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[46]

Was Ms Fraumano given an opportunity to respond to any reason related to her capacity or conduct?

As I have not found that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[47]

Did First Choice unreasonably refuse to allow Ms Fraumano to have a support person present to assist at discussions relating to the dismissal?

First Choice allowed Ms Fraumano to have a support person, but advised Ms Fraumano that her choice of support person, Ms Melissa Errington, was inappropriate because Ms Errington was an employee of First Choice and a potential witness. First Choice invited Ms Fraumano to bring an alternative support person but Ms Fraumano did not do so as she said she does not know many people in Sydney. I find that First Choice did not unreasonably refuse to allow Ms Fraumano to have a support person, however its decision that Ms Errington should not be Ms Fraumano’s support person is relevant to my consideration under s.387(h).

Was Ms Fraumano warned about unsatisfactory performance before the dismissal?

As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.

To what degree would the size of First Choice’ enterprise be likely to impact on the procedures followed in effecting the dismissal?

There is no evidence in relation to this matter and the parties did not make any submissions about this matter.

To what degree would the absence of dedicated human resource management specialists or expertise in First Choice’ enterprise be likely to impact on the procedures followed in effecting the dismissal?

There is no evidence in relation to this matter and the parties did not make any submissions about this matter.

What other matters are relevant?

Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. A number of matters raised by the parties are potentially relevant to my consideration under this provision, including the investigation into the complaints, First Choice’s decision in relation to Ms Fraumano’s choice of support person, and the impact of the dismissal on Ms Fraumano.

Investigation of complaints by First Choice

In the letter of termination, First Choice advised Ms Fraumano:

Note that these allegations were provided to us in writing by multiple FCD employees. These written accounts were treated with strict confidentiality and formed a crucial part of the investigation. During the investigation process, the credibility and sincerity of these allegations were thoroughly assessed to ensure fairness.

The last sentence was manifestly false. There was no evidence to establish that any assessment of the allegations took place. First Choice simply relied on the written accounts of Ms Pham and Ms Winfield and Ms Lever’s account of Ms Greenall’s allegations. During the hearing, Mr Singh suggested that a manager ‘may have’ spoken to the complainants about their complaints but this evidence was not convincing. In any event, the evidence establishes that Mr Singh, who investigated the complaints and made findings in relation to matters which led to Ms Fraumano’s dismissal, did not interview the complainants. This was unreasonable given that it was clear on the face of Ms Pham’s complaint that one of her motivations for making the complaint was Ms Fraumano’s complaints against Ms Pham. Had Mr Singh interviewed Ms Pham, it is likely that he would have found, as I have, that Ms Pham did not witness any conduct by Ms Fraumano towards Ms Winfield and Ms Greenall. Further, this could also have been established by Mr Singh reviewing Ms Fraumano’s work roster and noting that Ms Fraumano and Ms Pham were not on shift together during the relevant time period with Ms Winfield and Ms Greenall. If Mr Singh had interviewed Ms Winfield and Ms Greenall, he would have found that they felt pressured to make the complaints by Ms Pham. First Choice’s failure to interview the complainants and its acceptance of the complaints on face value without further inquiry weighs in favour of a finding that the dismissal was unfair.

In addition, First Choice’s failure to particularise the complaints, so that Ms Fraumano had a proper opportunity to respond, weighs in favour of a finding that the dismissal was unfair. First Choice claimed that it did not particularise the complaints because it was concerned about protecting the confidentiality of the complainants. There may be situations where it is reasonable for an employer to protect the identity of complainants during disciplinary investigations, however in such cases, this must be weighed against any potential unfairness towards the employee who is the subject of the investigation. In the current application, First Choice blindly accepted the complainant’s concerns about their personal safety without making proper inquiries about these matters and did not consider the extent to which such claims would unfairly deprive Ms Fraumano from a proper opportunity to respond to the matters. Had Ms Fraumano been provided with such an opportunity, she may have been able to establish to the satisfaction of First Choice that she had not engaged in any wrongdoing and that any interpersonal issues between Ms Fraumano, Ms Winfield and Ms Greenall could be addressed while maintaining the employment relationship.

Ms Fraumano’s choice of support person

Ms Fraumano’s residence is approximately 60 kilometres from the head office of First Choice, where she attended the disciplinary meetings. It is therefore understandable that Ms Fraumano chose a support person who worked for First Choice and that she was unable to find an alternative support person when her choice was vetoed by First Choice.

Ms Fraumano suggested Ms Errington as her support person as they were friends before Ms Fraumano commenced employment with First Choice. Mr Singh advised that ‘As Mel is Trainer and Assessor at [First Choice], interacts with most staff, and in certain regards plays a supervisory role for our collectors, there is a conflict of interest here. Having Mel involved in this investigation also runs the risk of affecting relationships in the workplace… The above is grounds for reasonable refusal of your selected support person’.

I do not accept that there was any conflict of interest between Ms Errington’s obligations towards First Choice and being a support person for Ms Fraumano. As First Choice did not disclose the identity of the complainants to Ms Fraumano, there was no risk of Ms Errington behaving unprofessionally towards the complainants or failing to discharge her obligations towards First Choice if she had attended the disciplinary meetings with Ms Fraumano. I find that it was unreasonable for First Choice to veto Ms Fraumano’s choice of support person which resulted in Ms Fraumano being deprived of the support of a support person at the disciplinary meetings. This is a matter which weighs in favour of a finding that the dismissal was unfair.

The financial impact of the dismissal

The financial impact of the dismissal weighs in favour of a finding that the dismissal was unfair given that Ms Fraumano has had difficulty finding alternative employment following the dismissal.

Is the Commission satisfied that the dismissal of Ms Fraumano was harsh, unjust or unreasonable?

I have made findings in relation to each matter specified in s.387 as relevant.

I must consider and give due weight to each of these matters as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[48]

Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of Ms Fraumano was harsh, unjust and unreasonable because:

there was no valid reason related to Ms Fraumano’s conduct,
there were procedural flaws in the investigation which resulted in Ms Fraumano being denied a proper opportunity to respond to the allegations,
Ms Fraumano was deprived of her choice of support person at the disciplinary meetings and
of the harsh consequences of the dismissal due to the financial impact of the dismissal on Ms Fraumano.

I am therefore satisfied that Ms Fraumano was unfairly dismissed within the meaning of s.385 of the FW Act.

Remedy

Being satisfied that Ms Fraumano made an application for an order granting a remedy under s.394, 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 Ms Fraumano’s reinstatement, or the payment of compensation to Ms Fraumano.

Under s.390(3) of the FW Act, I must not order the payment of compensation to Ms Fraumano unless:

(a) I am satisfied that reinstatement of Ms Fraumano is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.

Is reinstatement of Ms Fraumano inappropriate?

Ms Fraumano has not sought reinstatement and First Choice has not made any submissions in relation to this matter. On this basis I consider that reinstatement is inappropriate.

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

Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, ‘[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…’[49]

Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion.[50]

The evidence established that Ms Fraumano has suffered financial loss as a result of the dismissal as she was not employed between the dismissal and the time of the hearing. Having regard to these circumstances, I consider that an order for payment of compensation is appropriate.

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

Section 392(2) of the 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 Ms Fraumano in lieu of reinstatement including:

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

I consider all the circumstances of the case below.

Effect of the order on the viability of First Choice’s enterprise

There is no evidence before me about this matter so I am unable to conclude that an order for compensation will have an effect on the viability of First Choice’s enterprise.

Length of Ms Fraumano’s service

Ms Fraumano’s length of service was approximately two years and seven months. I consider that Ms Fraumano’s length of service does not support reducing or increasing the amount of compensation ordered.

Remuneration that Ms Fraumano would have received, or would have been likely to receive, if Ms Fraumano had not been dismissed

As stated by a majority of the Full Court of the Federal Court:

‘[i]n determining the remuneration that the applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.’[51]

Ms Fraumano did not make submissions about this matter. First Choice said that in estimating future remuneration, the Commission should have regard to the terms of employment contract which provided that Ms Fraumano was a casual employee and that she had no expectation of ongoing employment. First Choice submitted that it is open to the Commission to conclude that Ms Fraumano may not have been employed by First Choice for much longer beyond the dismissal but that even if she was, the amount that she would have received would have been significantly less compared to the previous six months as she would not have been provided with the same volume of shifts given the need for her to avoid working with certain other collectors.

In my view, Ms Fraumano’s employment history is a more reliable indicator of her future employment pattern and earnings than her contract of employment. That employment history indicates that Ms Fraumano usually worked at least four days per week and on some occasions, five or six days per week. There was no evidence which indicated that First Choice expected to lose any clients or experience a downturn in business in the immediate future. Any concerns about Ms Fraumano being rostered with other employees are not warranted given my findings about the reasons for the dismissal, but to the extent that these concerns exist, they could be managed, without reducing Ms Fraumano’s shifts, by rostering Ms Fraumano to work solo shifts or shifts with colleagues other than Ms Pham and Ms Winfield.

According to First Choice, Ms Fraumano received the gross sum of $37,875 during the 26 weeks immediately before the dismissal. Based upon Ms Fraumano’s employment history, I find that it is likely that she would have worked for a further period of twelve months if she had not been dismissed and that she would have earned $75,750 plus superannuation during this period.

Efforts of Ms Fraumano to mitigate the loss suffered by Ms Fraumano because of the dismissal

Ms Fraumano must provide evidence that she has taken reasonable steps to minimise the impact of the dismissal.[52] What is reasonable depends on the circumstances of the case.[53]

Ms Fraumano provided oral evidence that since the dismissal, she has applied for between 10 and 15 jobs, including with drug and alcohol testing companies, through job agencies and attended a couple of interviews. Ms Fraumano first sought employment with a drug and alcohol testing company in mid December 2024.

Ms Fraumano said that finding employment has been difficult because Ms Pham and Ms Winfield have been bad mouthing her to employers. Ms Fraumano was previously employed by a labour hire company but said that she was not prepared to seek reemployment with that company as they had been underpaying employees.

First Choice submitted that Ms Fraumano has not taken significant steps to mitigate her loss and that this should result in some reduction to the compensation awarded to her.

Based on her evidence, I find that Ms Fraumano has made some efforts to mitigate her loss however the evidence provided was insufficient to explain the whole period of unemployment.

Amount of remuneration earned by Ms Fraumano from employment or other work during the periods (i) between the dismissal and the making of the order for compensation and (ii) the making of the order for compensation and the actual compensation

There is no evidence before the Commission that Ms Fraumano has earned any remuneration from employment or other work during the periods (i) between the dismissal and the making of the order for compensation and (ii) the making of the order for compensation and the actual compensation.

Other relevant matters

The parties did not make any submissions about other relevant matters.

Is the amount of compensation to be reduced on account of misconduct?

If I am satisfied that misconduct of Ms Fraumano contributed to the employer’s decision to dismiss, I am obliged by section 392(3) of the FW Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct.

I am satisfied that misconduct of Ms Fraumano did not contribute to First Choice’s decision to dismiss. Therefore, the amount of the order for compensation is not to be reduced on account of misconduct.

How does the compensation cap apply?

Section 392(5) of the FW Act provides that the amount of compensation ordered by the Commission must not exceed the lesser of:

(a)the amount worked out under section 392(6); and

(b)half the amount of the high income threshold immediately before the dismissal.

The amount worked out under section 392(6) is the total of the following amounts:

(a)the total amount of the remuneration:

(i)received by Ms Fraumano; or
(ii)to which Ms Fraumano was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(iii)if Ms Fraumano 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 Ms Fraumano for the period of leave in accordance with the regulations.

Based on evidence provided by the parties, I find that the total amount of the remuneration received by Ms Fraumano during the 26 weeks immediately before the dismissal was $37,875.

This is less than half the high-income threshold which applied immediately before the dismissal.[54] The amount of compensation ordered by the Commission must therefore not exceed $37,875.

How is the amount of compensation to be calculated?

As noted by the Full Bench:

‘[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg).[55] This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages[56].[57]

The approach in Sprigg is as follows:

Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 2: Deduct monies earned since termination. Workers’ compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation ordered.

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.’

I have estimated the remuneration Ms Fraumano would have received, or would have been likely to have received, if First Choice had not terminated the employment to be $75,750 on the basis of my finding that Ms Fraumano would likely have remained in employment until 23 October 2025. This estimate of how long Ms Fraumano would have remained in employment is the ‘anticipated period of employment’.[58]

Although Ms Fraumano was unemployed at the time of the hearing, I believe that it is reasonable to conclude that she would have obtained employment within six weeks of the hearing date which would result in Ms Fraumano being unemployed for a period of six months from the date of dismissal.

Applying the Sprigg formula, this would result in Ms Fraumano being entitled to 26 weeks pay. However, I believe that it is appropriate to deduct an amount of six weeks pay in respect of Ms Fraumano not taking adequate steps to mitigate her loss and a further two weeks pay for contingencies given that she was a casual employee and her income fluctuated from time to time. This results in an amount of 18 weeks pay which is $26,221.14 plus superannuation.

Having applied the formula in Sprigg, I am nevertheless required to ensure that ‘the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case.[59] I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s.392(2) of the FW Act and that it does not include a component compensating for shock, distress and humiliation.

I have determined the amount of compensation as $26,221.14 gross plus superannuation.

Conclusion

I have found that the evidence before me does not establish that Ms Fraumano engaged in verbal harassment of her colleagues, including the use of inappropriate language, swearing and excessive shouting (including over the phone and in person) and as such there was not a valid reason for the dismissal related to Ms Fraumano’s capacity or conduct (including its effect on the safety and welfare of other employees).

I have found that the investigation carried out by First Choice was inadequate, that Ms Fraumano was denied a proper opportunity to respond to the allegations and that First Choice deprived Ms Fraumano of the support person of her choice at disciplinary meetings.

Based upon these findings, I have concluded that the dismissal was harsh, unjust and unreasonable.

I have determined that an order for compensation is appropriate, and that First Choice should pay compensation to Ms Fraumano in the sum of $26,221.14 gross plus superannuation less taxation as required by law in lieu of reinstatement within 14 days of the date of this decision.

An order giving effect to this decision has been separately issued.

DEPUTY PRESIDENT

Appearances:

Ms J. Fraumano, the Applicant

Ms R. Gall, Counsel, for the Respondent

Hearing details:

2025
13 March
In person, Sydney

[1] Statement of Namandeep Singh dated 11 March 2025 (Singh Statement) [4], Digital Hearing Book (DHB) 195

[2] Ibid [6], DHB 196

[3] Statement of Deborah Winfield dated 11 March 2025 (Winfield Statement) [25], DHB 253-254

[4] Ibid [26], DHB 254

[5] Singh Statement [14], DHB 197

[6] Statement of Jemma Lever dated 11 March 2025 (Lever Statement) [9] DHB 178, 183-184

[7] Ibid, DHB 185

[8] Singh Statement [17], DHB 198

[9] F2 Application

[10] Singh Statement [19], DHB 198

[11] Winfield Statement [27], DHB 254

[12] Exhibit 2

[13] Ibid

[14] Ibid

[15] Winfield Statement [28], DHB 254

[16] Winfield Statement [29], DHB 254

[17] Lever Statement [12] DHB 179

[18] Lever Statement [14] DHB 179

[19] Ibid, DHB 186-188

[20] Winfield Statement [30], DHB 254

[21] Ibid [16], DHB 179

[22] Ibid [18], DHB 180, 189

[23] Singh Statement [29], DHB 200

[24] Singh Statement [34], DHB 201

[25] Singh Statement [35]-[36], DHB 201

[26] DHB 234-236

[27] Singh Statement [39], DHB 201-202

[28] Ibid [40], DHB 202

[29] Ibid [44], DHB 202

[30] Ibid [46], DHB 203

[31] Ibid [48], DHB 203

[32] Ibid [49], DHB 203

[33] Ibid [50], DHB 203

[34] Ibid [52], DHB 203

[35] Ibid [54], DHB 204

[36] Exhibit 2

[37] Ibid

[38] Ibid

[39] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[40] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

[41] Ibid.

[42] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.

[43] Edwards v Justice Giudice [1999] FCA 1836, [7].

[44] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

[45] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

[46] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].

[47] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].

[48] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].

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

[50] Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].

[51] He v Lewin [2004] FCAFC 161, [58].

[52] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].

[53] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.

[54] The high income threshold which applied immediately before the dismissal was $175,000.

[55] (1998) 88 IR 21.

[56] [2013] FWCFB 431.

[57] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [16].

[58] Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].

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

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