Appeal against decision [2025] FWC 872 of Commissioner Redford at Melbourne on 2 April 2025 in matter number U2025/159– Application under s 394 of the Fair Work Act 2009 (Cth) for an unfair dismissal remedy – Small business fair dismissal code – Commissioner found employer’s belief that employee was conducting business in competition was not reasonably held and that employee had not engaged in serious misconduct – Whether breach of obligations of employee to take preparatory steps to establish a rival business during employment – Whether arguable grounds for appealable error – Whether in the public interest to grant permission to appeal – Permission to appeal refused.

Introduction

Gabriel Walker is a plumber. He commenced employment with Plumbtrax Pty Ltd on 7 September 2021. On 17 December 2024, Mr Walker was summarily dismissed by Plumbtrax’s Managing Director, Jeff Laurie. Mr Laurie alleged that Mr Walker had created and registered his own business which was similar to the business of Plumbtrax and had begun to promote the business using Plumbtrax’s resources and during his work time. At a meeting on 17 December 2024, Mr Laurie gave Mr Walker a letter of termination informing him of the immediate termination of his employment.

On 5 January 2025, Mr Walker applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (the Act). The application was dealt with by Commissioner Redford. On 2 April 2025, the Commissioner handed down his decision.[1] The Commissioner found Mr Walker’s dismissal was not consistent with the Small Business Fair Dismissal Code and was otherwise harsh, unjust and unreasonable. Plumbtrax was ordered to pay Mr Walker compensation of $11,726.14 plus a superannuation contribution of $1,348.51.

Plumbtrax now seeks permission to appeal, and to appeal, from that decision. In relation to the appeal, Mr Walker provided a document which was in the nature of a written submission the day before the hearing together with a number of other documents which he sought to rely upon in the appeal. The additional documents were a witness statement of Troy Fairbairn, a letter dated 19 February 2025 addressed to Melbourne Construction Lawyers and photographs of some plumbing equipment. Although it was filed outside of the directions issued in relation to the hearing of the appeal, the Full Bench accepted the written submission provided by Mr Walker. Plumbtrax was provided with the opportunity to file a written note in reply following the hearing. The Full Bench did not receive the additional documents sought to be relied upon by Mr Walker as further evidence on appeal for the purposes of s 607(2) of the Act.

For the reasons that follow, we do not believe that Plumbtrax has raised any arguable grounds of appealable error that would warrant permission to appeal being granted. In…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Plumbtrax Pty Ltd v Gabriel Walker

Details

AGLC: Plumbtrax Pty Ltd v Gabriel Walker [2025] FWCFB 219
Case: [2025] FWCFB 219
Decision Date: 25 SEPTEMBER 2025

CaseChat Overview and Summary

Plumbtrax Pty Ltd sought permission to appeal against a decision of Commissioner Redford which found that Gabriel Walker’s dismissal was unfair. The Full Bench was required to determine whether there were arguable grounds of appealable error and whether it was in the public interest to grant permission to appeal. The Full Bench found that there were no arguable grounds of appealable error. The Full Bench found that the Commissioner had carefully considered the evidence before him and had found that Mr Walker had done no more than take preparatory steps towards establishing his own business and had not commenced conducting a business in competition with his employer prior to his dismissal. The Full Bench also found that the appeal did not raise issues that warranted permission to appeal being granted in the public interest. The Full Bench found that the Commissioner’s decision did not undermine existing principles in relation to an employee conducting a business in competition with their employer. The Full Bench concluded that it was not in the public interest to grant permission to appeal and, as such, s 400(1) of the Act required that permission to appeal be refused.

The Full Bench orders that permission to appeal is refused.

Orders