Simpson, Kelly v Sahid Akram T/A Mad About Price - [2013] FWC 5110

1

Fair Work Act 2009 
s.394—Unfair dismissal

Kelly Simpson
v
Mohammed Shahid Akram T/A Mad About Price
(U2012/17111)

DEPUTY PRESIDENT 
GOSTENCNIK MELBOURNE, 26 JULY 2013

Application for Relief of Unfair Dismissal - harsh, unjust and unreasonable - reinstatement -
compensation.

Introduction

[1] Ms Kelly Simpson (Applicant) worked as a part-time sales assistant for Mr Shahid 
Akram (Respondent) in one of his five stores trading as “Mad About Price1. On 7 December 
2012, following several short message service (SMS) exchanges between the Applicant and 
the Respondent, and a subsequent meeting, the Applicant’s employment was terminated by 
the Respondent2.

[2] The Respondent took issue with the accusatory tone of the various text messages sent 
by the Applicant to the Respondent on 7 December 2012, and this, coupled with an earlier on 
warning given to the Applicant about her conduct, forms the foundation for the reason that the 
Respondent dismissed the Applicant3. The Applicant alleges that her dismissal was harsh, 
unjust and unreasonable and has applied to the Fair Work Commission (Commission) for a 
remedy under s.394 of the Fair Work Act 2009 (Act). This decision concerns that application.

Factual context

[3] The Respondent is an individual who owns and operates retail stores at Carnegie, 
Belgrave, Narre Warren South, Drouin and Pakenham, each of which trade as “Mad About 
Price”. The Applicant was employed in the Pakenham store and commenced that employment 
on 24 March 20114. The Applicant was employed to work between the hours of 9.00 am and 
2.00 pm Monday to Friday5.

                                               
1 Exhibit A1 at [4]
2 Exhibit A1 at [14] – [26]
3 Transcript PN 751 – PN 796; Exhibit R2; Exhibit A2
4 Exhibit A1 [4]
5 Exhibit A1 [4]

[2013] FWC 5110

DECISION


E AUSTRALIA FairWork Commission




 



[2013] FWC 5110

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Incident of 28 December 2011

[4] It is common ground that on 28 December 2011 the Applicant was involved in a 
verbal exchange with another employee, Ms Sarah Ablett6, which resulted in Ms Ablett 
immediately leaving her employment and making a complaint about the Applicant’s 
behaviour to the Respondent7. After receiving the complaint, the Respondent telephoned the 
Pakenham store to speak with the Applicant8. As a consequence of the incident the Applicant 
was issued with a verbal warning on 29 December 2011, which was accepted by the 
Applicant9. The Respondent says that he confirmed the warning by letter dated 4 January 
201210. The Applicant says that she did not receive the letter and disputes its authenticity. I 
deal with this issue later in this decision.

[5] The parties are also at odds over whether the employment of the Applicant ended on 
28 December 2011, the circumstances in which it might have ended and the legal 
consequence of the exchanges between the Applicant and the Respondent on 28 and 
29 December 2011.

[6] The Respondent maintains that as a consequence of the incident, he sent an SMS to the 
Applicant on 28 December 2011 to the effect that he “no longer required you for the job 
because of the way you dealt with the matter”11. The Respondent did not produce a copy of 
the SMS and he makes no mention of the SMS in written material that he filed in these 
proceedings12. The Respondent also gave evidence that he received a call from the Applicant 
at approximately 4.45 pm on 28 December 2011 during which the Applicant was crying and 
asked the Respondent to give the Applicant her job back13. The Applicant gave evidence that 
she did not receive such an SMS14. She said that she had been quite upset after the incident 
with the other employee and that during her discussion with the Respondent on 28 December 
2011 she said to the Respondent “well, I’ll just quit”15. The Applicant agreed that she 
telephoned the Respondent in the afternoon of the 28 December 2011 and that she had asked 
for her job back, not because the Respondent had dismissed her but because she had earlier 
“quit my job”16.

[7] The Respondent submitted that on either version of events, there was a termination of 
employment on 28 December 2011 and a new employment relationship began on 
29 December 2011. Consequently, the Respondent submitted, that the Applicant was not 
protected from unfair dismissal because the Respondent was a small business employer and 
the Applicant had not completed at least the minimum employment period of one year at the 
time of her dismissal.
                                               
6 Transcript PN 717
7 Transcript PN 128 – PN 130; Respondent’s submission at pp 1 – 2
8 Respondent’s submission at pp 1 – 2
9 Transcript PN 142 – PN 149
10 Exhibit R1
11 Transcript PN 133 – PN 134; Respondent's submissions at pp 1 – 2; Transcript PN 717
12 See Respondent’s submissions where the issue of the incident of 28 December 2011 and the discussion between the 

Applicant and the Respondent on 29 December 2011 is dealt with at pp 1 and 2
13 Transcript PN 717
14 Transcript PN 134
15 Transcript PN 151
16 Transcript PN 151








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[8] It is unnecessary to resolve the competing versions of events in order to resolve the 
legal question of whether employment ended on 28 December 2011. If it ended the period of 
continuous service would be broken resulting in the Applicant not being protected from unfair 
dismissal at the time of her dismissal on 7 December 2012. On either version of events the 
purported termination or resignation was a repudiation. This is because neither party gave 
notice of the termination or resignation to the other, and neither party had grounds to 
summarily bring the contract to an end. Therefore the notice of termination or resignation was 
invalid and ineffectual to end the contract. Although the employment relationship may have 
ended, the contract of employment continued as repudiation does not bring the contract to an 
end17.

[9] It is common ground that, on the same day, the Applicant telephoned the Respondent 
to ask for her job back. If the Applicant resigned by the giving of invalid notice earlier in the 
day, she was entitled to withdraw the notice any time before the Respondent accepted the 
repudiation. There is no evidence the Respondent accepted the repudiation. For example, 
there is no evidence of any confirmation to the Applicant from the Respondent of the 
resignation or any evidence of payments made by the Respondent of accrued entitlements and 
wages earned that would be expected to be paid on termination. Indeed by his conduct, in 
agreeing to meet the Respondent on the following day and thereafter agreeing to continue the 
employment relationship, the Respondent is acting in a manner inconsistent with someone 
who has accepted the earlier repudiation by the Applicant.

[10] On the Respondent’s version of events, he purported to terminate the Applicant’s 
employment on 28 December 2011 by giving invalid notice. There is no evidence that the 
Applicant accepted the Respondent’s repudiation and by her telephone call to the Respondent 
on the same day as the repudiation in which she asked to be given her job back, the Applicant 
behaved in a manner that is inconsistent with someone who has accepted the repudiation.

[11] Therefore by the time the Applicant and the Respondent met on 29 December 2011, 
the contract of employment remained on foot. During that meeting the Applicant and the 
Respondent agreed to continue the relationship and agreed that the Applicant would be given 
a warning for her conduct on 28 December 2011. The employment relationship did not begin 
anew rather it resumed and continued under the same contract of employment. Therefore the 
service of the Applicant was continuous. I am therefore satisfied that the Applicant had, at 
time that her employment was terminated on 7 December 2012 completed the minimum
employment period.

[12] Even if I am wrong in this conclusion, I would find based on the evidence of the 
Applicant about her state of mind18, which I accept, that the notice of resignation given by the 
Applicant on 28 December 2011 was given in a state of emotional distress and in the heat of 
the moment. A reasonable person in the position of the Respondent would not precipitously 
conclude that the Applicant intended to resign when she had uttered her words of resignation 
in temper or under great pressure from the Respondent or other circumstances19. In such 
circumstances the Applicant was entitled to retract her intemperate resignation once the 

                                               
17 Turner v Australasian Coal and Shale Employees’ Federation (1984) 6 FCR 177; Automatic Fire Sprinklers v Watson 

(1946) 72 CLR 435 at 450 – 453, 461 – 463, 465 – 467; Visscher v Giudice (2009) 239 CLR 361; Byrne v Australian 
Airlines Ltd (1995) 185 CLR 410; Purcell v Tullett Prebon (Australia) Pty Ltd [2010] NSWCA 150

18 Transcript PN 151
19 See Gunnedah Shire Council v Grout (1995) 134 ALR 156 at 166 – 167








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pressure is relieved, provided this was done within a reasonable period. This is precisely what 
the Applicant did and she telephoned the Respondent later in the afternoon of 28 December 
2011 to “ask for her job back”. At the very least, at the meeting between the Applicant and the 
Respondent on 29 December 2012, the Respondent agreed to allow the Applicant to rescind 
her resignation and continue in employment. The fact that the employment was continuous is 
evident by the Respondent not paying out accrued entitlements to the Applicant. This is 
something he would be required to do if the employment ended on 28 December 2011 and 
new employment commenced on 29 December 2011. It would be even more curious that the 
new employment would have begun with a warning that related to conduct attaching to the 
old employment. It follows, in my view, the employment relationship and the contract of 
employment continued notwithstanding the events of 28 December 2011.

Advice about pregnancy

[13] In about July 2012 the Applicant advised the Respondent that she had recently 
discovered that she was pregnant and that she planned to continue to work until the end of 
January or early February 2013 and thereafter commence a period of 12 months maternity 
leave20. The Respondent seemed to have some difficulty in accepting that the Applicant was 
not under any obligation in July or August 2012 to advise him of her pregnancy. Indeed the 
Respondent said that during a conversation with the Applicant on 30 July 2012 he had asked 
the Applicant whether she was all right following a period of sick leave on 25 and 26 July 
2012. When the Applicant told the Respondent that it was “just stomach pain or just gastro”, 
he regarded this response as a lie because she was pregnant “at the time and didn’t say”21. 
Ultimately the Applicant did not allege that the Respondent dismissed her because she was 
pregnant or had applied for maternity leave, and wisely the Respondent did not rely on the 
Applicant’s failure to advise him of her pregnancy in or about July or August 2012 as a 
reason for dismissal or as a basis for any warning about performance or conduct22. In or about 
October 2012, the Applicant and the Respondent seem to have agreed that the Applicant 
would commence her maternity leave at the end of January 201323.

Warning about family members attending and disrupting store operations and customer 
complaints

[14] In the written material relied upon by the Respondent during the proceedings, the 
Respondent alleged that “ex-family members” of the Applicant came into the store causing 
“fights and arguments”24. The Respondent also alleged in his written material that the 
Applicant’s mother was staying at the store with the Applicant for the entire duration of the 
Applicant’s shift, and that customers had telephoned and complained to the Respondent that 
the Applicant had been rude to them25. The Respondent asserted that the Applicant received 
warnings about these matters. The Applicant denied the allegations and disputed that she had 
received warnings from the Respondent about these matters.

                                               
20 Exhibit A1 at [7] – [9]; Transcript PN 86 – PN 87
21 Respondent's submissions at [5] – [6]; Transcript PN 753 – PN 761
22 Transcript PN 268; PN 753 – PN 761
23 Exhibit A1 at [8] – [11]; Transcript PN 270
24 Exhibit R4 at p.3.4
25 Exhibit R4 at p.3 .4








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[15] The Respondent’s oral evidence did not bear out the allegations that he had made in 
his written material. The Respondent’s oral evidence about these matters is recorded in 
transcript26 and reproduced below:

“THE DEPUTY PRESIDENT: Mr Akram, you have prepared a document which sets 
out your version of events. I’m now going to give you an opportunity from your 
perspective to tell me what happened and why Ms Simpson’s employment ended?---So 
do I have to start from the beginning or - - -

Start from the beginning. This is your story?--- . . . We had the issue with 
Ms Simpson, the ex and the family. They were all coming in and issues comes up, and 
just again I said that, “Look, it’s a workplace there. I can’t just, you know, have these 
sort of things up at the work and - - -“

Mr Akram, I just want to be clear. It’s not very helpful to me in trying to work out 
what actually happened if you say that, “Her ex and her family kept coming in.” You 
need to tell me who came in on what days and what disruption was caused?---All I can 
say is couple of their side of the people are - I don’t know. I haven’t seen them 
personally. This is what Simpson said to me, and I went in the shop and her mother 
was there and they said to me, “These people are coming in. They are causing a 
problem and they’re going to ring you and they’re going to say you that they’re the 
customers and Ms Simpson is treating them bad so just sack her from the job,” so this 
is all I know, and I said to Ms Simpson - and I said, “Look, I can’t have these kind of 
thing. The people coming in the stores and yelling or abusing or causing fights or 
whatever. I just can’t have these kind of thing at the workplace.”

I understand that but do you know whether on any occasion anybody came to the 
store?---I didn’t see myself personally.

Have you been told of anybody actually coming to the store and abusing anybody?---
Well, part of - Ms Simpson said herself.

Well, what you just told me is that Ms Simpson said that they were going to ring you 
and tell you that Ms Simpson was abusive?---That’s exactly right.

But to your knowledge, has anybody come to the store that’s related to Ms Simpson, 
other than her mother, that has been disruptive?---I haven’t seen anybody myself 
personally, no.

Has Ms Simpson actually told you that someone came to the store and was abusive?---
Yes.

When did she tell you this?---That’s - we’re talking in March to April, May time; 
couple of month. I haven’t got the exact date.

I just want to be clear about what you’re saying. As I understand what you said just a 
moment ago, you said that Ms Simpson told you that somebody would ring you, either 
her ex or someone related to her ex, and pretend that they were a customer?---Exactly.

                                               
26 Transcript PN 715 – PN 750








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And that they would allege that she was abusive towards them?---Exactly.

Yes, but that’s not the same as somebody coming into the store and abusing customers 
or somebody else, is it?---No, no, no. It’s just it was direct to Ms Simpson and then 
she knew them very well because the family she knew before; and same thing the 
mother said to me too.

I understand that you say that Ms Simpson’s mother and Ms Simpson expressed to you 
concern that somebody related to her ex might do this. I understand that’s the point 
you’re making. What I’m trying to understand is what was the problem created for 
your business if nothing actually happened?---Well, they - nobody else came and said 
to me - there’s no customer or anybody did witness a thing, but all I’m just saying 
from my side what - we had a conversation with Ms Simpson and the mother and they 
are the ones that told me this is what has been going on and she needs to go to see a 
solicitor and they got to go to the court and sort it out so these people won’t come back 
in the workplace.

Okay, but they didn’t come to the workplace, did they?---No, they did.

No, and did you say you gave her a warning for this?---I said to her that, “Look, 
Ms Simpson, I don’t like these things happening at workplace and if you could please-
- - -“What happened?  Nothing happened?---No, because this is what Ms Simpson 

said. They come up and - because she was the one who was saying these people come 
up and they’re aggressive and they are threatening her for the things and all that so she 
needs to go to the court.  I don’t know her personal side; never asked her. You know, 
what really happen her personal life is none of my business anyway.

So what was the warning for?---The warning was that - all I just said to her, that, “I 
don’t like these happen at workplace. If you got your personal issue, you can take 
these personal issue outside of the shop, not in the shop.”

Let’s assume for a moment that these former acquaintances of Ms Simpson came to 
the shop. Let’s assume that, and let’s assume that they were disruptive. What was 
Ms Simpson supposed to do about it?---Just to say to them, “Just leave the workplace 
and don’t come back in here.” That’s what probably she did. I’m not denying that and 
that - - -

So why did you give her a warning, as you describe it?---The warning I just gave her 
for only this reason, not for anything else. Just that I don’t like these things happening 
at workplace, and the people rang me after that. There was a couple of phone calls. 
They all - just said to Ms Simpson, “Look, there might be a customer, there might not 
be customer.” According to her, she said the phone call - “They rang you.  It’s not the 
customer. It’s my ex’s family.”

So you’re now saying you did receive some phone calls?---Phone call. I did, yes.  As I 
said before, there was a couple of phone calls.

From whom?---From somebody ringing, the customer.  That’s all I know 
and - - -Somebody saying they were a customer?---They were customer there.








[2013] FWC 5110

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Did they leave a name?---No. I haven’t got a name.

What did they say happened?---They said, “We went in the shop to buy something and 
Kelly wasn’t helpful and in fact she was just very rude and just treating us bad, so we 
don’t like this kind of behaviour from any shop assistant,” and I said, “Look, I can 
check over and see what it is,” and I went back and ask Ms Simpson to - - -

Just hang on a sec. So how many customers rang you?---Twice I got the phone call.

And they said the same thing?---Same thing, yes.

Exactly the same thing?---Exactly. I mean, I didn’t notice too much of that because 
Ms Simpson explain that that’s her ex-family. I just left it at that because she said 
before that the ex-family came up and they had these kind of issue up at the 
workplace, and all I can go what they - somebody call me, that’s what they said, and I 
said to them, “I can go back and check with Kelly,” and that’s all. I just said to 
Ms Simpson after that - - -

Did they leave a phone so you could report back?---No. It is a private number call.

Both?---Yes.

And so you gave her a warning because of complaints received from customers.  Is 
that what you’re saying?---Well, that’s what I said.  I said all I - - -

Can you just listen to my question? Did you give her a warning because you received 
complaints from customers and you satisfied yourself that she was guilty of the 
conduct that the customers have complained about?---Well, I gave - that probably be 
right, but the warning was because I got the call.

No, not probably right. What did you give her a warning for?---For the customer, the 
ringing me for the complaint for the behaviour.

So you were satisfied that Ms Simpson engaged in the behaviour?---I can’t explain. 
There is not hundred per cent sure because as I said, Ms Simpson said that’s the ex-
family, they ring in, so it is - I can’t really hundred per cent say it’s the ex-family or is 
the customers.

So you weren’t sure but you gave her a warning anyway?---I just gave her a warning 
in this sense: that I don’t want to hear these things from the customers.

Can I just ask you this? When you use the term “warning”, did you mean it in the 
sense of it being a warning to improve her behaviour or did you simply say, “Look, if 
this is happening, your personal life intervening, I’d prefer it not to happen”? Is it that 
sort of a warning or - - -?---Well, what I said to Ms Simpson, I said, “If it’s a personal 
issue and these people are your ex’s family, that’s your personal matter, and if that’s 
the case, then I got no problem, but if these ones are real customers and they’re the 
customers, then there’s a problem,” and that’s where the warning is.”








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[16] In my view the discrepancies between the Respondent’s written material and his oral 
evidence, and the inconsistencies in his oral evidence, show that the Respondent has a 
tendency to exaggerate, rendering his evidence unreliable27. Conversely the Applicant gave 
clear and direct evidence which did not appear to be affected by exaggeration, and made 
appropriate concessions, about the fact that she had received a warning about her conduct on 
29 December 2011. The Applicant struck me as an honest and reliable witness. Where in this 
decision it has been necessary to make findings based solely on the competing versions of an 
event given by the Applicant and the Respondent, I have therefore preferred the Applicant’s 
version of that event.

[17] However, it is unnecessary to accept the Applicant’s version of events in relation to 
the alleged warnings given to the Applicant about “ex-family members” disrupting store 
activities and customer complaints. As seems abundantly clear from the Respondent’s 
evidence reproduced above, the Respondent is unable to offer any evidence that any ex-family 
member attended the store and was disruptive. Any warning given in reliance of this issue is 
therefore unfounded and cannot be relied upon to support the subsequent termination of the 
Applicant’s employment. As to the Respondent’s evidence about customer complaints, he 
was unable to identify the name of any particular customer who had complained and 
ultimately conceded that he could not be “sure because as I said, Ms Simpson said that’s the 
ex-family, they ring in, so it is – I can’t really hundred percent say it’s the ex-family or is the 
customers”28. The Respondent’s evidence about customer complaints must also be viewed 
against his later evidence that customers “say she is good”29. It follows, based on the 
Respondent’s own evidence, any warning that he may have been given to the Applicant about 
customer complaints, was in the circumstances discussed above, unreasonable and cannot be 
relied upon by the Respondent to support the subsequent termination of the Applicant’s 
employment.

Allegations of rudeness towards the Respondent’s brother Naveed Akram

[18] The Respondent alleged that the Applicant had exhibited rude behaviour towards his 
brother30 Mr Naveed Akram. Mr Akram also worked for the Respondent and from time to 
time delivered goods to the Pakenham store. The Respondent gave evidence about four 
incidents that occurred in the last quarter of 201131. The Applicant denies that she was rude 
toward Mr Akram. There is no evidence that the Respondent spoke to the Applicant about 
these matters and the Respondent does not allege that he counselled the Applicant or that she 
was warned about her behaviour towards Mr Akram. In any event the allegations made by 
Mr Akram pre-date the warning that both the Applicant and Respondent agree was given to 
the Applicant on 29 December 2011. It seems to me that even if the incidents as alleged 
occurred, they were not regarded by Mr Akram as serious enough to be raised with the 
Respondent or for the Respondent to counsel the Applicant about her behaviour. In the 
circumstances, I do not find Mr Akram’s evidence about these incidents to be particularly 
relevant to the issues that I must determine.

                                               
27 There were a number of occasions during his evidence in which the Respondent seemed to exaggerate or embellish his 

evidence: See for example PN 784 – PN 785and PN 923 – PN 949; also compare the Respondent’s written employer 
response regarding the content of the SMS exchange and his evidence at Transcript PN 1150 – PN 1154

28 Transcript PN 748
29 Transcript PN 1978 – PN 1979
30 Transcript PN 751
31 Exhibit R5








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Circumstances leading to the Applicant’s dismissal

[19] On 7 December 2012, the Applicant was expecting her weekly wages to be deposited 
into her bank account that morning consistent with the practice during her employment. On 
the morning of 7 December 2012, the Applicant attended her local post office in order to 
arrange for payment of rent but was unable to do so as her pay had yet to be credited to her 
bank account32. The Applicant sent an SMS to the Respondent querying the absence of pay in 
her bank account and an exchange of SMS’s followed33. The text of the SMS exchange is set 
out below:

“9:20 AM – Applicant – “My pay isn’t in. I’m standing in the post office trying to pay 
my rent and I can’t because you haven’t paid me. I’ve rung the bank and it’s not there 
is it pending. I need my pay today so can you meet me at the shop and pay me please 
as this is not good enough”.

9:22 AM – Respondent – “What’s not good enough… your pay should going today 
I’ve to check what’s going on”.

9:26 AM – Applicant – “It’s not good enough that my pay is not in and I have to be 
embarrassed because I can’t pay my rent. I’m in the post office with not enough 
money in my account as you haven’t paid me and I need the money today. If it’s not in 
my bank account now it won’t be in today so I need to collect it from the shop today. 
This happened a little while ago and I didn’t get paid until the following Tuesday but I 
can’t pay my rent next Tuesday, it has to be today”.

9:28 AM – Respondent – “Next time you need to speak proper or I’m not going to 
listen any shit from anybody. I will check and fix up… week’s not finished yet”.

9:38 AM – Applicant – “Shahid I am speaking proper to you. I am not giving you shit. 
I’m just asking for what I’m entitled to. How would you like it if you went to pay a 
bill and couldn’t as you weren’t paid correctly. I have every right to expect my paid 
today as it is payday. So if you can’t put it in my bank, I will pick it up from you 
today. You don’t work for no pay and neither do I and you can’t crack the shits at me 
for asking for my pay”.

9:41 AM – Respondent – “You are speaking like a real mad person. It’s just start of 
day. I said to you I will check. You done this bad behaviour before. I’m at Drouin and 
coming back to Packy. I will check and pay you today and if you gunna react like this 
I can’t have a job for you…”.

9:50 AM – Applicant – “I beg your pardon, are you threatening my job because I’m 
asking for what I’m legally entitled to”.

9:53 AM – Respondent – “Think whatever you think. I just checked the acc. Your pay 
gone from my side. Also you need to get some manners to speak”.

                                               
32 Exhibit A1 [14] – [15]
33 See Exhibit A2








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9:59 AM – Applicant – “Read the first message I sent. I said can I please meet you at 
work and get my pay. You’re the one that has taken my messages the wrong way and 
you’re the one that got nasty first. Now you’re threatening that you don’t have a job 
for me. I’m at the bank and they have checked my account and any payments pending 
and my pay is nowhere to be seen. Not saying it in a rude and nasty way but I am 
checking what’s going on with the banks”.

10.00 AM – Respondent – “Come at the shop at 11.00. I meet you there. Thanks”.”

[20] The Respondent produced a National Australia Bank Internet Banking transaction 
history which showed that on 7 December 2012 an amount of $315.54 was withdrawn from 
the Respondent’s account34. It is not disputed that this amount represents wages that were due 
and payable to the Applicant on that day. The transaction history produced by the Respondent 
does not show the time at which that amount was withdrawn from his account nor does it 
show when that amount was credited to the bank account of the Applicant. The Applicant 
produced a statement from the Commonwealth Bank which showed that the amount of 
$315.54 deposited by direct credit the Respondent’s account was not credited until 10.31 pm 
on 7 December 201235.

[21] The Respondent gave evidence that he has arranged the payment of wages system so 
that wages due to employees are deducted from the Respondent’s bank account on the 
Thursday night before payday and deposited into the employees’ bank accounts on Friday 
morning36. The document produced by the Respondent setting out the transaction history of 
his National Australia Bank account from which wages to the Respondent were paid bears 
this out. That document shows that debits from his bank account for the payment of wages to 
the Applicant occurred on mainly on Thursdays37. However that was not the case in relation 
to 7 December 2012. The Applicant was accustomed to having her wages deposited in the 
Thursday night or first thing on a Friday morning38.

[22] It therefore seems clear that the Applicant’s wages were not in her account at any time 
during business hours on 7 December 2012 and she was unable, as she indicated in her SMS 
to the Respondent, to pay her rent. It is understandable and not unreasonable in the 
circumstances, for the Applicant to have felt embarrassed and frustrated by the Respondent’s 
failure to ensure that her wages into her bank account during normal business hours so that 
she could attend to important payments that were due to be made by her on that day.

[23] The Respondent was upset by his perception of the tone of the Applicant’s SMS. He 
gave evidence that he regarded the Applicant’s SMS as saying that he caused the Applicant 
embarrassment and that the Applicant’s SMS was rude39.

[24] I do not regard the SMS sent by the Applicant to the Respondent as particularly rude. 
Certainly the tone is reflective of a person who is anxious to resolve the wages issue that she 
raised and to pay her rent. Indeed when the Applicant realised that the Respondent may be 
                                               
34 Exhibit R3; See also Transcript PN 762 – PN 772
35 Exhibit A4
36 Transcript PN 1020
37 Exhibit A3; See also Transcript PN 1038 – PN 1045
38 Transcript PN 1042 – PN 1045
39 Transcript PN 1094 – PN 1109








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misconstruing her SMS, she sought to clarify misunderstanding through her SMS to the 
Respondent sent at 9.59 am. Moreover it is clear from the SMS exchange that it is the 
Respondent who engages in inappropriate language and tone as is evident:

 by his SMS of 9.28 am in which he says “you need to speak proper or I’m not going 
to listen to any shit”;

 by his SMS of 9.41 am which he says “you are speaking like a real mad person” and 
“if you gunna react like this I can’t have a job for you”; and

 by his SMS of 9.53 am in which he says “think whatever you think” and “also you 
need to get some manners to speak”.

[25] I do not accept that the Respondent was entitled to send the messages that he did to the 
Applicant in response to her understandably anxious and frustrated query about the 
whereabouts of wages. Furthermore it  is unacceptable for the Respondent to make threats 
about the Applicant’s employment. This kind of conduct would also likely amount to a 
contravention of the ‘General Protections’ provisions in Chapter 3, Part 3-1 of the Act. There 
was nothing in the words or tone of the applicant’s SMS’s which would justify such a grossly 
disproportionate and unfair response.

Meeting of 7 December 2012

[26] It is common ground that the Applicant accompanied by her father, John Simpson, 
attended the Pakenham store at approximately 11.00 am to meet with the Respondent. During 
cross-examination the Respondent conceded that he had all but made up his mind to dismiss 
the Applicant prior to the Applicant attending the Pakenham store to discuss the wages 
issue40. The Respondent also gave evidence that during the meeting at the store on 
7 December 2012 the Applicant demanded to be paid in cash immediately, she wouldn’t leave 
the store until she is paid41 and that “she was talking, she just didn’t want to listen what I’m 
saying”42. The Respondent also alleged in his written material, that during that meeting the 
Applicant was “very rude and yelling” and “just talking, talking and screaming”43, however 
he did not put any of these allegations to the Applicant during his cross examination of her44.

[27] Mr Simpson gave evidence that he attended the Pakenham store with his daughter on 
7 December 2012 at approximately 11.00 am 45. He said that upon arrival the Respondent 
asked his daughter to go through to the rear of the store to his office which she did and 
Mr Simpson followed them through to the office46. Mr Simpson said that during the meeting:

 His daughter asked the Respondent what had happened to her pay and that the 
Respondent had said that she would get her pay later that day and that he had no 
obligation to pay her in the morning as he had until 4.00 pm to pay her47;

                                               
40 Transcript PN 1286 – PN 1297
41 Transcript PN 1291, PN 1299 – PN 1300
42 Transcript PN 1298
43 Exhibit R4 at p 4.6 and 4.7
44 The extent of the Respondent’s cross-examination of Applicant about the meeting between them on 7 December 2012 is to 

be found at transcript PN 616
45 Exhibit A3 at [5]
46 Exhibit A3 at [6]
47 Exhibit A3 at [7]








[2013] FWC 5110

12

 The Respondent accused his daughter of being rude and swearing at the Respondent 
during the SMSs and his daughter reminded Respondent that it was he who had used 
bad language during the communications48;

 His daughter remained calm and did not yell or scream or insult the Respondent49;

 The Respondent told his daughter that her services were no longer required and to 
return the shop key. The Respondent then pulled out his wallet and paid Kelly her 
wages in cash50; and

 Mr Simpson told the Respondent that he would have to pay his daughter in lieu of 
notice and supply her with a separation certificate. The Respondent said that he 
would tend to the final pay in due course and supply a certificate by email51.

[28] The Applicant’s evidence about the meeting at the Pakenham store on 7 December 
2012 was largely consistent with that of Mr Simpson52. As I indicated earlier, the Respondent 
did not challenge the Applicant’s version of the meeting during his cross-examination of her. 
Nor did the Respondent challenge Mr Simpson’s version of the meeting during the 
Respondent’s cross-examination of Mr Simpson. Taking into account the relationship 
between Mr Simpson and the Respondent, I nevertheless accept their evidence about the 
conduct and content of the meeting between the Applicant and the Respondent on 
7 December 2012. To the extent that there is a conflict in the evidence between the Applicant 
and the Respondent about the meeting on 7 December 2012, for the reasons given earlier at 
paragraph [16] about the reliability of the Respondent’s evidence, I accept the Applicant’s 
evidence.

Reason for dismissal and letter of termination dated 7 December 2012

[29] The Applicant gave evidence that she was not given a reason for her dismissal and that 
at the meeting of 7 December 2012, she had asked the Respondent to “write down that he was 
dismissing me for no reason” and that the Respondent said he would be emailing something 
toher, but that did not occur53. The Respondent’s evidence of his reason for dismissing the 
Applicant is set out in the following extract from transcript54:

“THE DEPUTY PRESIDENT:   I want to be absolutely clear, Mr Akram. You say that 
the reason you dismissed Kelly, Ms Simpson, was because on 7 December she was 
rude and used bad language?---That’s right.

And she did that in the text message to you?---Well, it’s kind of, but it just goes back 
to those couple of warnings previously which - - -

                                               
48 Exhibit A3 at [8]
49 Exhibit A3 at [9]
50 Exhibit A3 at [10]
51 Exhibit A3 at [11
52 Exhibit A1 at [21] – [25]
53 Exhibit A1 at [26]
54 Transcript PN 1354 – PN 1358








[2013] FWC 5110

13

No, hang on. She used bad language to you in the text message?---I could see from my 
side because I thought that I paid her, money has gone in, and I just look at from my 
side and I think that she is blaming me for something which is I haven’t done.

So you now say that it’s because she blamed you for not paying her?---That’s exactly 
right.

Not because she used bad language?---No, no. It’s carry on the whole lot from the 
previously two that she blame me for not paying and just this pay issue is there. She is 
acting towards the pay like I haven’t paid her, or I’m just paying her a week later or 
three days or - well, you know, each time it goes to Tuesday, Wednesday payment.”

[30] It is clear in this extract from transcript that although the Respondent initially 
maintained that he had dismissed the Applicant because she had used rude and bad language 
in the SMS to him earlier in the day, ultimately the Respondent said that the reason for his 
decision to dismiss the Applicant was because she had blamed the Respondent for not paying 
her. I note that this is not the reason given in the purported letter of termination dated 
7 December 201255 in which the Respondent says that “your employment was terminated due 
to many warnings of unacceptable behaviour”, and about which I say more below. Before 
doing so it is appropriate to observe that  any suggestion that the Applicant used “rude and 
bad language” in the SMSs which she sent to the Respondent querying the status of her pay is 
unfounded. True it is that the SMSs show that the Applicant was anxious and upset, but in the 
circumstances, this is understandable. Furthermore, on any reasonable reading of the SMSs, 
the Applicant was not “blaming” the Respondent. The Applicant was entitled to raise 
concerns with the Respondent about the fact that wages due to her were not deposited into her 
account at a time when, based on previous practice, her wages would have been deposited. If 
the Respondent took offence to the forthright manner in which the Applicant communicated 
her concerns to him, this did not, in my view, give him a licence to respond to her SMS in the 
manner that he did, nor to later dismiss the Applicant. A person is entitled to raise legitimate 
concerns about pay with their employer without being subjected to threats of dismissal for 
doing so56.

[31] The Applicant also gave evidence that the first time she had seen a letter of 
termination dated 7 December 201257, was when the Respondent produced it at a conciliation 
conference about her unfair dismissal remedy application58. The Applicant also alleged that 
she did not receive the warning letter dated 4 January 2012 concerning the incident 
28 January 201259. The Respondent gave evidence that the letter of 4 January 2012 sent to the 
Applicant by post while the letter of 7 December 2012 sent to the Applicant by email60.

[32] During the hearing of this application on 6 May 2013, the Respondent was asked, and 
undertook to produce the computer on which copies of the letters were stored in order to 
determine the date on which each was first created61. At a subsequent hearing on 11 June 
                                               
55 Exhibit R2
56 See further Chapter 3, Part 3-1 of the Act.
57 Exhibit R2
58 Exhibit A1 at [27]
59 See Exhibit R1; see also Exhibit A1 at [27]
60 Transcript PN 1654 – PN1662
61 Transcript PN 1416 – PN 1419








[2013] FWC 5110

14

2013, the Respondent did not produce the computer he had earlier undertaken to produce and 
explained that he could not produce the computer as he had disposed of the computer and 
acquired a new computer in or about August 201262. The Respondent was then asked to 
produce a receipt for the purchase of the new computer which he also undertook to provide to 
the Commission63. On 17 June 2013 the Respondent produced an invoice from ASN 
Computers dated 16 August 2012 which recorded the purchase of two computers. The first 
was a “desktop IBM computer with a 17 inch LCD monitor, keyboard and mouse” and the 
second, was a “Pentium 4 HP/Compaq Laptop” for the total sum inclusive of GST of 
$297.0064. The invoice carried an ABN of 7307967742365.

[33] Searches conducted by me on 17 June 2013, of the ASIC business and company 
registers and on the Australian government ABN lookups website show that ABN 73 079 677 
423 is associated with a business trading name of ASN Computers. The searches also 
disclosed that the business trading name does not operate and is not registered and that the 
ABN associated with the trading name has not been registered for GST since at least 16 May 
2012. I therefore relisted the matter on 5 July 2013 for further hearing. At that hearing, I put 
the above matters to the Respondent and I also raised with him my concern that the price said 
to have been paid for two computers seemed substantially less than that which one might 
expect to pay for such computers in the market. The Respondent explained that the computers 
were purchased second-hand from a Mr Ahmed Afroz who operated a stall at the Caribbean 
Market. I asked the Respondent to request Mr Afroz to call me so that I might discuss this 
issue and that of the invoice purporting to charge GST on the computer purchases in 
circumstances where ASN Computers is not registered for GST. The Respondent undertook 
to do so66. I have not, as at the date of this decision, received a telephone call from Mr Afroz.

[34] In the circumstances, I do not accept that the Respondent purchased a new computer 
or the explanation that the Respondent’s inability to show when the letters at issue were first 
created on the Respondent’s computer was because of the purchase. Ultimately I am only 
concerned about the question whether the Applicant received a copy of the termination letter 
from the Respondent dated 7 December 2012. As should be obvious, 7 December 2012 
postdates the date on which the Respondent says that he purchased the new computer, which 
according to the invoice was produced by him on 16 August 2012. It follows that the letter of 
termination would have been created on the new computer. The Respondent did not produce 
any computer, even though he undertook to do so. There is no reasonable explanation for his 
failure to do so. Consequently I draw an inference that the production of the computer on 
which the termination letter was said to have been produced, would not have assisted the 
Respondent67. I therefore accept the Applicant’s evidence that she did not receive the letter of 
termination dated 7 December 2012 and that she was given a copy of that letter for the first 
time on 29 January 201368.

                                               
62 Transcript PN 1636 – PN 1680
63 Transcript PN 1682 – PN 1701
64 See email from the Respondent dated 17 June 2013 and attached invoice
65 See invoice of ASN Computers produced by the Respondent
66 Transcript PN 2032 – PN 2099
67 See Jones v Dunkel (1959) 101 CLR 298
68 Exhibit A1 at [27]








[2013] FWC 5110

15

Protection from Unfair Dismissal

[35] A remedial order may only be made in relation to the Applicant’s dismissal if, at the 
date of her dismissal, the Applicant was protected from unfair dismissal under the Act.

[36] Section 382 sets out the circumstances that must exist for the Applicant to be protected 
from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

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

(b) one or more of the following apply:

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

Note: High income threshold indexed to $123,300 from 1 July 2012.”

[37] For the reasons set out in at [4] - [12] above I am satisfied that the Applicant had at the 
time of her dismissal completed the minimum period of employment. I am also satisfied, that 
at the time of her dismissal, the General Retail Industry Award 2010 covered the Applicant. 
Consequently, on 7 December 2012 when the Applicant was dismissed, she was protected 
from unfair dismissal within the meaning of s.382.

Was the dismissal unfair?

[38] The Applicant’s dismissal will have been unfair if on the evidence, I am satisfied that 
all of the circumstances set out at s.385 of the Act existed. Section 385 provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal 
Code; and








[2013] FWC 5110

16

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

Was the Applicant dismissed?

[39] A person has been dismissed if, relevantly:

 the person’s employment with his or her employer has been terminated on the 
employer’s initiative; or

 the person has resigned from his or her employment, but was forced to do so because 
of conduct, or a course of conduct, engaged in by his or her employer.69

[40] It was common ground that the Applicant was dismissed at the initiative of the 
Respondent and I am so satisfied. Consequently the Applicant was dismissed within the 
meaning of s.386 of the Act. 

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[41] A person will not have been unfairly dismissed if an employer effects the dismissal in 
a manner consistent with the Small Business Fair Dismissal Code (the Code). It is useful to 
set out s.388(2) of the Act:

“388 The Small Business Fair Dismissal Code...

(2) A person’s dismissal was consistent with the Small Business Fair Dismissal 
Code if:

(a) immediately before the time of the dismissal or at the time the person 
was given notice of the dismissal (whichever happened first), the person’s 
employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in 
relation to the dismissal.”

[42] The meaning of “small business employer” is set out in s.23 of the Act:

“23 Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if 
the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the 
employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at 
that time are to be counted; and

                                               
69 Section 386(1)








[2013] FWC 5110

17

(b) a casual employee is not to be counted unless, at that time, he or she 
has been employed by the employer on a regular and systematic basis.

(3) For the purpose of calculating the number of employees employed by the 
employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small 
business employer at a particular time in relation to the dismissal of an employee, or 
termination of an employee’s employment, the employees that are to be counted 
include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being 
terminated; and

(b) any other employee of the employer who is also being dismissed or 
whose employment is also being terminated.”

[43] The Respondent gave evidence that at the time of the Applicant’s dismissal, he 
employed 11 employees, including the Applicant.70 The Respondent also produced a PAYG 
payment summary statement for the financial year ending 30 June 2012 and superannuation 
payment summaries for the period 1 November 2012 to 30 December 201271 which was 
consistent with his evidence and showed that he employed less than 15 employees. Initially 
the Applicant sought to include the Respondent and his wife in the count of employees but 
ultimately accepted that they were not employees of the business and accepted that the 
documents produced by the Respondent established that he employed less than 15 employees 
at the relevant time72. I am therefore satisfied that the Respondent was a “small business 
employer” within the meaning of s.23 of the Act at the time he dismissed the Applicant and 
the Small Business Fair Dismissal Code applies. 

[44] The Small Business Fair Dismissal Code was declared by the Minister for 
Employment and Workplace Relations on 24 June 2009 and provides as follows:

“Small Business Fair Dismissal Code

Commencement
The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the 
employer believes on reasonable grounds that the employee’s conduct is sufficiently 
serious to justify immediate dismissal. Serious misconduct includes theft, fraud, 
violence and serious breaches of occupational health and safety procedures. For a 
dismissal to be deemed fair it is sufficient, though not essential, that an allegation of 
theft, fraud or violence be reported to the police. Of course, the employer must have 
reasonable grounds for making the report. 

                                               
70 Transcript PN 42 – PN 45
71 See PAYG summary payment statement for year ending 30 June 2012 and contribution payment advice from Retail 

Employees Superannuation Pty Ltd (REST) under cover of a letter dated 14 June 2013 from the Respondent
72 Transcript PN 2070 – PN 2076








[2013] FWC 5110

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Other Dismissal
In other cases, the small business employer must give the employee a reason why he 
or she is at risk of being dismissed. The reason must be a valid reason based on the 
employee’s conduct or capacity to do the job. 

The employee must be warned verbally or preferably in writing, that he or she risks 
being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to 
respond to the warning and give the employee a reasonable chance to rectify the 
problem, having regard to the employee’s response. Rectifying the problem might 
involve the employer providing additional training and ensuring the employee knows 
the employer’s job expectations.

Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the 
employee can have another person present to assist. However, the other person cannot 
be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with 
the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, 
including evidence that a warning has been given (except in cases of summary 
dismissal). Evidence may include a completed checklist, copies of written warning(s), 
a statement of termination or signed witness statements.”

[45] In John Pinawin T/A RoseVi.Hair.Face.Body v Domingo73, a Full Bench of Fair Work 
Australia considered the summary dismissal aspect of the Code. The Full Bench set out a two 
part test to determine compliance with the Code:

“[29]... There are two steps in the process of determining whether this aspect of the 
Small Business Fair Dismissal Code is satisfied. First, there needs to be a 
consideration whether, at the time of dismissal, the employer held a belief that the 
employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly 
it is necessary to consider whether that belief was based on reasonable grounds. The 
second element incorporates the concept that the employer has carried out a reasonable 
investigation into the matter. It is not necessary to determine whether the employer 
was correct in the belief that it held.”74

[46] The Applicant was dismissed without notice. However, she was not dismissed 
summarily for misconduct. Even if that were not the case, and the Respondent held the belief 
that the Applicant’s conduct was sufficiently serious justify dismissal, for the reasons given 
earlier in at [19] – [30] I am satisfied that the Respondent did not have any basis to believe on 
reasonable grounds that the Applicant’s conduct was sufficiently serious to justify immediate 
dismissal. Consequently that aspect of the Small Business Fair Dismissal Code is not relevant 
and I do not consider it further. 

                                               
73 (2012) 219 IR 128
74 (2012) 219 IR 128 at [29]








[2013] FWC 5110

19

[47] This is therefore a case to which the “Other Dismissal” provisions of the Small 
Business Fair Dismissal Code apply. The Respondent submitted that he complied with the 
Small Business Fair Dismissal. He said he had warned the Applicant about her rudeness and 
conduct on three occasions75. The Applicant accepts that she received a warning on 
29 December 2011 in relation to the incident with Ms Ablett on 28 December 2011, but 
disputed that she had received any other warnings as alleged by the Respondent. For the 
reasons given earlier in this decision at [16], I do not accept the evidence of the Respondent 
and prefer the evidence given by the Applicant on the question of warnings. I also found 
earlier at [13]-[17] that warnings said by the Respondent to have been given, were not 
reasonable. Furthermore, although this point was not argued by the Respondent, for the 
avoidance of any doubt, I do not accept that the Respondent’s threat of dismissal contained in 
the SMS exchange could or should be construed as a warning, in the relevant sense. It was a 
threat issued by the respondent because he felt affronted by the applicant’s SMS.

[48] I have earlier concluded that the Respondent did not give the Applicant a reason for 
her dismissal. It follows that the Respondent did not give the Applicant any reason why she 
was at risk of being dismissed.

[49] Furthermore, even if the Applicant had been warned about the conduct ultimately 
relied upon by the Respondent as the reason for the dismissal of the Applicant I am not 
satisfied that the reason is a valid reason in the sense that it is not one that is sound, defensible 
and well founded. I am therefore satisfied that is dismissing the Applicant, the Respondent did 
not comply with the Small Business Fair Dismissal Code.

[50] The Respondent does not maintain that the dismissal of the Applicant was for reasons 
of redundancy. Consequently I now give consideration to the matters set out in s.387 of the 
Act.

Harsh, unjust or unreasonable

[51] The matters I must take into account when assessing whether the dismissal was harsh, 
unjust or unreasonable are set out at s.387 of the Act:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or 
unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the 
person’s capacity or conduct (including its effect on the safety and welfare of 
other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason 
related to the capacity or conduct of the person; and

                                               
75 The Respondent’s written material, 10 January 2013, page 2 at [3]








[2013] FWC 5110

20

(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.”

[52] I am obliged to consider each of these matters in reaching my conclusion and I do so 
below76.

[53] The ambit of the conduct that may fall within the description ‘harsh, unjust or 
unreasonable’ was explained in Byrne v Australian Airlines Ltd77 by McHugh and 
Gummow JJ as follows:

“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not 
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the 
concepts will overlap. Thus, the one termination of employment may be unjust because 
the employee was not guilty of the misconduct on which the employer acted, may be 
unreasonable because it was decided upon inferences which could not reasonably have 
been drawn from the material before the employer, and may be harsh in its 
consequences for the personal and economic situation of the employee or because it is 
disproportionate to the gravity of the misconduct in respect of which the employer 
acted.”

[54] The substance of the Applicant’s argument that her dismissal was harsh, unjust or 
unreasonable is as follows:

 She was dismissed without a valid reason and no reason was given by the 
Respondent for the dismissal either before or at the time of her dismissal;

 As no valid reason exists and was not given, she was not given an opportunity to 
respond to the reason for his dismissal; 

 She had received a prior warning about unacceptable conduct but it bears no 
relevance to the reason for dismissal by the Respondent; and

 Even if there was a valid reason, the Respondent’s decision to dismiss her was 
disproportionate to the gravity of the conduct said to have been engaged in by the 
Applicant.

                                               
76 Sayer v Melsteel [2011] FWAFB 7498
77 [1995] HCA 24; (1995) 185 CLR 410 at 465








[2013] FWC 5110

21

[55] The Respondent submits that his dismissal of the Applicant was not harsh, unjust or 
unreasonable because he:

 had a valid reason related to the Applicant’s conduct. In particular, the Respondent 
argues that the Applicant:
o was rude to the Respondent, customers, other employees including the 

Respondent’s brother;
o blamed the Respondent for something had not done, namely fail to pay the 

Applicant on 7 December 2012. 

 had previously warned the Applicant on three occasions that her conduct was 
unsatisfactory and that a failure to improve might lead to his dismissal.

[56] I have already made findings about the evidentiary foundations upon which these 
submissions are put earlier in this decision. To the extent that it is necessary I deal with the 
competing submissions in my consideration of each of the criteria in s.387 of the Act below.

Valid reason - s.387(a)

[57] There must have been a valid reason for the dismissal of the Applicant related to her 
capacity of conduct, although it need not be the reason given to the Applicant at the time of 
the dismissal78. The reason should be “sound, defensible and well founded”79 and should not 
be “capricious, fanciful, spiteful or prejudiced”80. Where, as in the present case, the 
Respondent relies in part on the conduct of the Applicant to justify its decision to terminate 
her employment, I must be satisfied that the conduct as alleged by the Respondent occurred81,
and mere suspicion of conduct does not amount to a valid reason82.

[58] For the reasons given at [18] – [28], I satisfied that there was not a valid reason for the 
dismissal of the Applicant. All that the Applicant did on 7 December 2012 was to query, or 
perhaps complain about the fact that wages due to her had not been deposited into her bank 
account as had been the consistent practice previously. In my view the Respondent grossly 
overreacted both in his responses to the Applicant by SMS and the dismissing the Applicant 
on 7 December 2012. In my view the Respondent’s reason was capricious and spiteful.

Notification of the valid reason - s.387(b)

[59] Notification of a valid reason for termination should be given to an employee 
protected from unfair dismissal before the decision is made83, in explicit terms84 and in plain 
and clear terms85. In Crozier v Palazzo Corporation Pty Ltd86 a Full Bench of the Australian 

                                               
78 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378
79 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373
80 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373
81 King v Freshmore (Vic) Pty Ltd, Full Bench AIRC, 17 March 2000, (Print S4213)
82 Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1
83 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]
84 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151
85 Previsic v Australian Quarantine Inspection Services Print Q3730
86 (2000) 98 IR 137








[2013] FWC 5110

22

Industrial Relations Commission dealing with a similar provision of the Workplace Relations 
Act 1996 stated the following:

“As a matter of logic procedural fairness would require that an employee be notified of 
a valid reason for their termination before any decision is taken to terminate their 
employment in order to provide them with an opportunity to respond to the reason 
identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect 
if it was sufficient to notify employees and give them an opportunity to respond after a 
decision had been taken to terminate their employment. Much like shutting the stable 
door after the horse has bolted.”87

[60] The requirement to notify of the reason, together with the requirement to provide an 
opportunity to respond to the reason in s.387(c), involves consideration of whether procedural 
fairness was afforded the Applicant before her dismissal was effected.

[61] Satisfaction of the notification requirement will usually require a straightforward 
factual inquiry to be made, namely: what was the Applicant told about the reason for the 
dismissal, before the dismissal took place? In this case, the answer is also straightforward. For 
the reasons given at [26] – [34] of this decision I am satisfied that the Applicant was not 
notified of any reason for her dismissal.

Opportunity to respond - s.387(c)

[62] An employee protected from unfair dismissal should be given an opportunity to 
respond to any reason for dismissal relating to the conduct or capacity of the person. The 
consideration of whether and to what extent that opportunity was given is to be applied in a 
common sense way to ensure the employee is treated fairly and should not be burdened with 
formality88.

[63] As I have concluded that the Applicant was not given a reason for her dismissal either 
before or at the time that the termination of employment took effect, it follows that the 
Applicant was not given the opportunity to respond to any of the reasons now identified by 
the Respondent relating to her conduct.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[64] If an employee protected from unfair dismissal has requested a support person be 
present to assist in discussions relating to the dismissal, the employer should not unreasonably 
refuse to allow that person to be present.

[65] It is clear from the plain language of s.387(d) that this consideration is directed to an 
employer’s unreasonable refusal to allow a support person to be present. There is no 
obligation to offer the employee such an opportunity. In most cases, the section will be 
engaged if the employee asks for a support person to be present and the employer refuses the 
request89. It may well be appropriate in some cases to consider the overall circumstances in 
which meetings to discuss an employee’s performance, capacity and conduct or dismissal 
                                               
87 (2000) 98 IR 137 at 151
88 RMIT v Asher (2010) 194 IR 1 at 14-15
89 See also Explanatory Memorandum to the Fair Work Bill 2008 at [1542]








[2013] FWC 5110

23

occurred to properly determine whether there was an unreasonable refusal by the employer to 
allow the employee to have a support person present. This is not such a case.

[66] The issue is moot in this case since, although the Applicant did not ask for a support 
person to be present, Mr Simpson, the Applicant’s father, was present as a support person 
during discussions relating to the Applicant’s dismissal on 7 December 2012.

Warnings regarding unsatisfactory performance - s.387(e)

[67] If an employee protected from unfair dismissal is dismissed for the reason of 
unsatisfactory performance, the employer should warn the employee about the unsatisfactory 
performance before the dismissal. Unsatisfactory performance is more likely to relate to an 
employee’s capacity than their conduct90. There is no evidence the Applicant was warned by 
the Respondent about any unsatisfactory performance, indeed the Respondent acknowledged 
that the Applicant was a good worker and that customers “say she is good”91. Furthermore, 
the Respondent does not rely upon poor performance as a reason for dismissal. Consequently 
this consideration is given no weight in this application.

[68] However it is acknowledged by the Applicant that she did receive a warning in 
relation to her conduct on 28 December 2011. I have already concluded that I am not satisfied 
that any other warnings have been given to the Applicant. To the extent that the incident on 
28 December 2011 reflects upon the Applicant’s performance and the subsequent warning 
given relates to that performance, I am not satisfied that I should give that warning any weight 
given the circumstances of the dismissal and the reasons given during the hearing by the 
Respondent for the dismissal. Furthermore, as I have indicated earlier, I do not accept that the 
Respondent’s threat of dismissal contained in the SMS exchange on 7 December 2012 could 
or should be construed as a warning, in the relevant sense.

Impact of the size of the Respondent on procedures followed - s.387(f)

[69] The size of the Respondent’s enterprise may impact on the procedures followed by the 
Respondent in effecting the dismissal. As I earlier noted, the Respondent was, at the time of 
the Applicant’s dismissal, a small business employer within the meaning of s.23 of the Act. I 
have also concluded that the Respondent did not comply with the Code in effecting the 
dismissal of the Applicant’s employment. The Code might be said to place less stringent 
procedural requirements on an employer to effect a dismissal.

[70] The fact the Respondent conducted a small business and appeared relatively 
inexperienced in human resources and employment matters no doubt had an impact on the 
procedure followed by the Respondent in effecting the Applicant’s dismissal. However, any 
procedure that is followed, even one affected by the size of a business and inexperience, must 
not be devoid of any fairness. In this case, the manner in which the dismissal was effected, 
absent as it was of any warning, because employee made legitimate enquiries about her wages 
and without an articulated reason, leads me squarely to the view that while the size of the 
Respondent’s business and the Respondent’s inexperience might excuse some procedural 
flaws, it does not excuse a complete absence of fairness and his capricious and spiteful reason 
for effecting the dismissal.

                                               
90 Annetta v Ansett Australia (2000) 98 IR 233 at 237
91 Transcript PN 1978 – PN 1979








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[71] I therefore find the size of the Respondent’s business and his relative inexperience 
does not excuse the procedures followed by the Respondent in effecting the dismissal.

Absence of dedicated human resources management specialist/expertise on procedures 
followed - s.387(g)

[72] The absence of dedicated human resource management or expertise in the 
Respondent’s enterprise may also impact on the procedures followed by the Respondent in 
effecting the dismissal.

[73] The Respondent is a small business without a dedicated human resources management 
specialist or a person with such expertise. In my view, if the Respondent had access to such 
resources or expertise, there is little doubt that the procedure he would have been advised to 
adopt would have been different and fairer. More likely than not he would have received 
advice that he did not have a proper basis dismissed the Applicant.

[74] I therefore find the absence of any such management or expertise affect the procedures 
followed by the Respondent in effecting the dismissal, and contributed to the unfair treatment 
experienced by the Applicant.

Other relevant matters - s.387(h)

[75] Section 387(h) provides the Commission with broad scope to consider any other 
matters it considers relevant. In determining whether the dismissal of the Applicant was harsh, 
unjust or unreasonable, I have taken them into account the fact that Respondent made a threat 
of dismissal which was communicated by SMS after the Applicant has queried the non-
payment of wages, in circumstances where the Applicant had not been paid at a time when 
she would usually have been paid and was anxious to make payment of rent.

Conclusion

[76] Having considered each of the matters in s.387, I have concluded that there was not a 
valid reason for the Applicant’s dismissal, the treatment of the Applicant by the Respondent 
in effecting the dismissal was also manifestly unfair and the reason given by the Respondent 
during these proceedings, for the dismissal, was in my view capricious and spiteful. Taking 
into consideration the all of the evidence and submissions and the matters discussed above, I 
am satisfied the dismissal of the Applicant was harsh, unjust and unreasonable.

Remedy

[77] Section 390 of the Act sets out the circumstances in which I may make an order for 
reinstatement or compensation:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the 
payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair 
dismissal (see Division 2) at the time of being dismissed; and








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(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under 
section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; 
and

(b) the FWC considers an order for payment of compensation is 
appropriate in all the circumstances of the case.

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

[78] I have already dealt with the issues at s.390(1)(a)–(b) earlier above. I am satisfied the 
Applicant was protected from unfair dismissal pursuant to s.382 of the Act and the Applicant 
was dismissed unfairly. Accordingly, I now consider whether to order a remedy, and if so, 
whether to order the reinstatement of the Applicant or, in circumstances where reinstatement 
is inappropriate, an order for compensation if I am satisfied such an order is appropriate in all 
the circumstances. 

Reinstatement

[79] The Applicant does not seek an order for reinstatement. Regardless of the remedy 
sought by the Applicant, s.390 of the Act requires I first determine whether reinstatement is 
appropriate before I may consider an order for compensation.

[80] Although the Respondent was initially undecided about whether he opposed an order 
for reinstatement in the event of a finding that the dismissal was harsh unjust or 
unreasonable92, the Respondent’s ultimate position was that he opposed such a course93.

[81] The Respondent’s reason for opposing an order for reinstatement is twofold. First, the
Respondent says that he has employed a new person to fill the position previously occupied 
by the Applicant. An order for reinstatement would require the Respondent to terminate the 
employment of an employee. Second, the Respondent says that “things have gone bad 
between Kelly on myself because she has accused me of a lot of things which I have not done 
specially pay issues. Also Kelly lied about a lot of things and denied a lot of things too. I 
cannot give her job back as its (sic) going to be a big problem in the future. I cant (sic) trust 
her at all”94. I take this to be a submission that the relationship of trust and confidence has 
broken down.

[82] The applicant also submits that the “trust and confidence that existed in the 
employment relationship is destroyed95.
                                               
92 Transcript PN 1976 – PN 1987
93 Correspondence from Respondent 14 June 2013
94 Correspondence from Respondent 14 June 2013
95 Applicant’s submissions regarding remedy, 17 June 2013 [1(c)]








[2013] FWC 5110

26

[83] Despite these submissions, I am not satisfied that the relationship of trust and 
confidence is destroyed so as to render an order for reinstatement inappropriate. Having 
observed the parties during the proceedings and taking into account the fact that the parties 
have previously been able to reconcile after difficult and emotional altercations, I am firmly 
of the view that although the relationship of trust and confidence is no doubt damaged, it is 
not destroyed and can be restored so that a satisfactory employment relationship can be re-
established. Furthermore there is no suggestion or evidence of any dishonesty on the part of 
the Applicant which might otherwise completely destroy the relationship of trust and 
confidence. The fact that the Respondent says that the Applicant “lied about a lot of things” 
does not change my view. Ultimately the only specific “lie” to which the Respondent could 
point was about the Applicant’s pregnancy. For the reasons given at [13], I do not accept that 
the incident shows that the Applicant was dishonest.

[84] It is natural that there is and will be some ill feeling between the Applicant and 
Respondent. This is not surprising given there is a contested dismissal. But this is not 
evidence that the relationship of trust and confidence is destroyed. In any event, the status of a 
relationship of trust and confidence is not the sole criterion or even a necessary one to 
determine whether or not an order for reinstatement is appropriate. All of the circumstances 
must be taken into account96. 

[85] The additional circumstances which I have taken into account are that the Applicant 
would, but for the dismissal, currently be on parental leave. An order for reinstatement would 
preserve her right to return to work after parental leave and to avail herself of a right to 
request flexible work arrangements upon her return. Furthermore, an order for reinstatement 
will permit the Applicant to have access to the paid parental leave scheme of the 
Commonwealth. In addition, the Respondent accepts that the Applicant was a good worker 
and good with customers. Both parties now should understand that they may have each 
misunderstood the other on occasions during the course of the Applicant’s employment which 
led to some tension from time to time. Such problems are not unique to this workplace and are 
commonplace. Sensible parties work through such issues.

[86] Although the Respondent has employed another person to fill the Applicant’s position, 
this fact on its own is an insufficient basis to conclude that an order for reinstatement is not 
appropriate97. Firstly, the unavailability of a position in the circumstances is of the 
Respondent’s own making as he would have been aware of the Applicant’s unfair dismissal 
remedy application at the time that he employed the new employee. Secondly, this factor is 
not outweighed by the considerations that I have discussed above in the current 
circumstances. Thirdly, the effective date on which the Applicant would resume employment 
with the Respondent would be in February 2014. Much can happen between now and then, 
and the Respondent has ample time to make adjustments that might be necessary to 
accommodate the Applicant’s resumption of work.

[87] In all of the circumstances, I am satisfied that reinstatement is appropriate and 
consequently I will order the reinstatement of the Applicant into the position that she 

                                               
96 See Tenix Defence Pty Ltd v Galea, PR928494, 11 March 2003
97 See Smith v Moore Paragon Australia Ltd (2004) 130 IR 446








[2013] FWC 5110

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occupied prior to her dismissal by the Respondent. The effect of this order will be to restore 
employment as it existed immediately before the dismissal98.

                                               
98 See Blackadder v Ramsay Butchering Services Pty Ltd (2005) 221 CLR 539








[2013] FWC 5110

28

Continuity of employment

[88] As I indicated earlier, the Applicant would, but for the dismissal, currently be on 
parental leave. As the Applicant and the Respondent had agreed that the Applicant would 
commence parental leave in February 2013, I consider that it is appropriate to order the 
Applicant’s period of employment be continuous notwithstanding the dismissal so that the 
period between 7 December 2012 and the date of this order be counted as not breaking the 
period of service of the Applicant with the Respondent. In all other respects, the period 
commencing on 1 February 2013 and ending on the date of this order be treated for service 
purposes as a period of parental leave by the Applicant.

Order to restore lost pay

[89] The question of whether to make an order for lost remuneration, between the date of 
dismissal and the date of any order for reinstatement is a discretionary one. The Applicant 
submitted that in the event that an order for reinstatement were made it would be appropriate 
to order the payment of lost remuneration to 28 February 2013 in the amount of $3090.29 
together with further payment of $10,917 representing 18 weeks payment the Applicant 
would otherwise have received as the beneficiary of the Commonwealth’s Paid Parental 
Leave scheme.

[90] In all the circumstances, I consider that it is appropriate to make an order for the 
restoration of lost pay. I do not however propose to make the order sought by the Applicant. 
The Applicant was dismissed with immediate effect on 7 December 2012. It is common 
ground that she later received two weeks pay in lieu of notice. Taking into account that two 
week period the Applicant would have continued working prior to commencing her maternity 
leave for a further 5.8 weeks. The Applicant earned $315.54 per week in her part-time 
employment. Consequently the loss of pay during that period was $1830.13. An order 
requiring restoration of the loss pay will also be made in the amount of $1830.13.

[91] As to payment for any period of parental leave, the Applicant will, as a consequence 
of the orders that I make, be able to apply for paid parental leave under the Paid Parental 
Leave Act 2010. In brief, the Applicant will need to take the following steps:

 The Applicant will need to apply to the Family Assistance Office (FAO) for parental 
leave pay;

 The FAO will determine whether the Applicant is eligible parental leave pay;

 Assuming eligibility, the FAO will make an initial eligibility determination or a 
payability to determination;

 If, as here, the Applicant has worked for the same employer for at least 12 months, 
the FAO will make an employer determination.

[92] The Applicant will start receiving parental leave pay, on her nominated parental leave 
start date or some later date having regard to her dismissal and the remedy provided for by 
this decision. I therefore do not make any order restoring lost pay as a consequence of the 
paid parental leave scheme.








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[93] An order giving effect to this decision is issued separately.

DEPUTY PRESIDENT

Appearances:

A. Jewell for the Applicant.

S. Akram on his own behalf.

Hearing details:

2013.
Melbourne:
May 6.
June 11.
July 5.

Printed by authority of the Commonwealth Government Printer

Price code G, PR539460


AIR ORK COMMISSION --------- SEAL AUSTRALIA THE

Cases cited by this decision: