Shannon Everaardt v Absolute QSEC Pty Ltd - [2025] FWC 277

[2025] FWC 277

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Shannon Everaardt
v

Absolute QSEC Pty Ltd

(U2024/11646)

COMMISSIONER SLOAN

SYDNEY, 3 FEBRUARY 2025

Application for an unfair dismissal remedy

Absolute QSEC Pty Limited employed Shannon Everaardt as a Security Officer. Her employment commenced on 11 September 2023. She was employed on a casual basis.
On Friday, 20 September 2024, Ms Everaardt called Bruce Birks, Absolute QSEC’s Operations Manager, and asked why she had not received her roster for the following week. (Ms Everaardt usually received her roster for the following week on the preceding Thursday.) Mr Birks told Ms Everaardt that he was still working on the rosters and that she would get hers soon.

When Ms Everaardt had still not received her roster, she called Mr Birks again on Saturday, 21 September 2024. Mr Birks told Ms Everaardt that he had been told by “higher up management” not to roster her, but to terminate her employment. The reason Mr Birks gave for the termination was that Ms Everaardt had received a “not to roster”, or “NTR”, from “Balaclava & Raintrees pubs” on 28 June 2024.

Ms Everaardt became upset. Mr Birks asked her what he could do to help, such as providing a reference or a separation certificate. Ms Everaardt asked for a separation certificate. Mr Birks said that he would provide one on Monday, 23 September 2024.

Despite following Mr Birks up, Ms Everaardt did not receive a separation certificate.

On 30 September 2024, Ms Everaardt filed an unfair dismissal application with the Fair Work Commission.[1]

Procedural history

On 19 November 2024, Commissioner Durham made directions in these proceedings. In short, they required Ms Everaardt to file and serve her evidence and submissions by 3 December 2024; for Absolute QSEC to file and serve its evidence and submissions by 17 December 2024; and for Ms Everaardt to file and serve any material in reply by 24 December 2024.

The matter was reallocated to me. I determined to list the matter for mention on 28 November 2024 to make arrangements for the hearing. I arranged for an email attaching a notice of listing to be sent to the parties, at the addresses that had been provided to the Commission, on 20 November 2024.

On 22 November 2024, my Chambers received an email from the “Human Resources Department” of “QSEC Security”. The email stated: “I understand that your chambers is seeking Absolute QSEC Pty Ltd contact details.” The email proceeded to give the name “Jack Burges” and an email address for him.

On the same day I arranged for an email to be sent to Mr Burges at the address that had been provided. The email informed Mr Burges of the mention on 28 November 2024. Attached to the email was a copy of the notice of listing for that mention and a copy of the directions made by Commissioner Durham on 19 November 2024.

The Commission did not receive a response to that email.

I…

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.

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Details

Case: [2025] FWC 277
Decision Date: 3 FEBRUARY 2025

CaseChat Overview and Summary

In the Fair Work Commission, Ms. Shannon Everaardt applied for a remedy for unfair dismissal against Absolute QSEC Pty Ltd. Ms. Everaardt was employed by Absolute QSEC on a casual basis, which, based on the provided payslips, appeared to be regular and systematic. The central issue was whether Absolute QSEC unfairly dismissed Ms. Everaardt. To determine this, the Commissioner needed to establish whether the dismissal was harsh, unjust, or unreasonable, and whether it complied with the Small Business Fair Dismissal Code. Absolute QSEC failed to respond to the proceedings, leading the Commissioner to determine the matter on the papers.

The Commissioner found that Absolute QSEC dismissed Ms. Everaardt on 21 September 2024, due to a "not to roster" (NTR) issued by Balaclava & Raintrees pubs on 28 June 2024. However, Ms. Everaardt was not informed of the NTR or its implications before her dismissal, nor was she given an opportunity to respond. Absolute QSEC did not consider the NTR in isolation as a valid reason for dismissal, especially given that other employees with similar issues were not terminated. The Commissioner concluded that the dismissal was substantively and procedurally deficient, thus harsh, unjust, and unreasonable. Consequently, the dismissal was found to be unfair.

Given that Ms. Everaardt did not seek reinstatement, the Commissioner ordered Absolute QSEC to pay her compensation. After considering various factors, including Ms. Everaardt's length of service, the lack of evidence of her efforts to mitigate loss, and the absence of any adverse effect on Absolute QSEC's business, the Commissioner determined that a compensation of 6 weeks' pay, amounting to $9,333.36, plus a superannuation contribution, was appropriate. The decision was made to ensure the compensation level was suitable given all circumstances of the case.

In conclusion, the Fair Work Commission ordered Absolute QSEC to pay Ms. Everaardt $9,333.36, less any applicable taxes, and an 11.5% superannuation contribution, to be made by 3 March 2025.

Orders