Sirl, Catherine v HK Group Pty Limited T/A Buzzbee Long Day Care Centre - [2017] FWC 543

[2017] FWC 543

The attached document replaces the document previously issued with the above code on 28 
February 2017.

The document corrects some typographical errors. 

Peter Willink
Associate to Deputy President Sams

Dated 2 March 2017















1

Fair Work Act 2009 
s 394 - Application for unfair dismissal remedy

Ms Catherine Sirl

v

HK Group Pty Limited t/a Buzzbee Long Day Care Centre
(U2016/10383)

DEPUTY PRESIDENT SAMS SYDNEY, 28 FEBRUARY 2017

Application for an unfair dismissal remedy – alleged dismissal of childcare employee –
objection to the application on the basis that the applicant was not dismissed – family 
operated childcare centres – bitter marriage breakdown between applicant and owner’s son –  
– applicant told not to return to work until her marital problems were resolved – whether 
conversations and actions of employer constituted a dismissal – no letter of dismissal –
applicant’s strong belief she had been dismissed – locked gates, handover of duties and 
failure to pay outstanding entitlements – allegations of theft and previous misconduct –three 
recorded conversations – correct classification of applicant – underpayment claims over 
many years – irregularities and inconsistencies in the respondent’s evidence –witness 
credibility – applicant’s evidence preferred – intention of the employer was to dismiss the 
applicant – jurisdictional objection dismissed – further proceedings. 

[1] Until recently, the Kassems had been a loving and close knit family unit; so close in 

fact, that most of the adult members of the family either work for, or are involved with the 

management and operation of the family childcare business, owned and overseen by the 

family patriarch, Mr Hafez Kassem (hereafter referred to as ‘Mr Kassem’). The family’s 

under school age children also attend the Centres owned by Mr Kassem. Regrettably, this case 

has disclosed the ugly and tragic consequences of a family business in upheaval as a result of 

a very bitter marriage breakdown between the patriarch’s son, Mr Jehad Kassem (referred to 

as ‘Jehad’) and his ex-wife, Catherine Sirl, both of whom worked at the Buzzbee Childcare 

Centre (‘Buzzbee’ or the ‘Centre’), at Busby, New South Wales - one of three owned by Mr 

Kassem (the ‘respondent’). 

[2] Ms Catherine Sirl is the applicant in these proceedings (referred to as the ‘applicant’ or 

‘Ms Sirl’). Apart from being a very troubling and distressing case, there were a number of 

what are usually straightforward factual matters, which in this case were hotly contested. 

[2017] FWC 543

DECISION


E AUSTRALIA FairWork Commission




 



[2017] FWC 543

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They will ultimately need to be resolved by the Commission. For example, in her application, 

the applicant claimed that she had been employed by the HK Group Pty Ltd since 2007. This 

date is disputed by the respondent. The applicant further stated that she had been employed as 

a Director under the Children’s Services Award 2010 [MA000120] (the ‘Children’s Services 

Award’ or the ‘Award’). However, she was paid as a Level 4.2 Children Services Employee 

under the Award. As a consequence, the applicant claims significant underpayment monies 

for the full period of her employment as Director of the Centre. 

[3] The most significant dispute between the parties, and the issue which attracted the 

most debate, is that Ms Sirl claims she was dismissed by Mr Kassem on 31 July 2016, 

whereas the respondent asserts that Ms Sirl was not dismissed and, if there was a termination 

of employment, it was brought about entirely by Ms Sirl’s own actions and conduct. This of 

course (assuming Ms Sirl is correct), is the classic constructive dismissal scenario. Obviously, 

if the respondent is correct - that there was no dismissal at the initiative of the employer - then 

there is no jurisdiction under Part 3-2 the Fair Work Act 2009 (the ‘Act’) for the Fair Work 

Commission (the ‘Commission’) to consider whether the applicant’s dismissal was ‘harsh, 

unjust or unreasonable’, within the meaning of s 387, or the remedy consequences (s 392) of 

such a finding. 

[4] One matter which was not disputed is that the respondent is a ‘small business’ 

employer for the purposes of s 23 of the Act. This means that if the jurisdictional hurdle is

overcome, the applicant’s dismissal would need to be considered within the context of the 

Act’s Small Business Fair Dismissal Code (s 388). However, we are a long way short of 

considerations of that kind, suffice to observe that notwithstanding the argument over 

commencement date, the applicant has the requisite 12 months minimum employment period,

set out in ss 382(a) and 383 of the Act. For completeness, there are no other jurisdictional 

issues in this case and I find as follows:

 Ms Sirl’s application (assuming she was dismissed on 31 July 2016) was filed within 

the required 21 days set out at s 394(2) of the Act;

 Ms Sirl’s employment was covered by a Modern Award (s 382(b)); and

 the circumstances here disclosed do not give rise to any considerations of genuine 

redundancy. 








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[5] The application was filed on 18 August 2016 and was subject to an unsuccessful 

conciliation in accordance with the Commission’s usual protocols. The matter was allocated 

to me on 7 October 2016 and listed for jurisdictional hearing on 12 and 13 December 2016 

with final submissions filed in January 2017. At the hearing, Mr M Hanna, Solicitor, 

appeared for the applicant with permission being granted, pursuant to s 596 of the Act and Ms 

Mona Kassem (daughter of Mr Kassem and the applicant’s former sister in law) appeared for 

the respondent. It would appear that the respondent had been earlier represented by Mitry 

Lawyers (who had prepared all of the witness statements), but for reasons which are not 

readily apparent, a Form F54 - Notice of representative ceasing to act was filed on 9 

December 2016 – 3 days before the hearing. 

THE EVIDENCE

[6] The following persons provided written and oral evidence in this matter:

Mr Hafez Kassem, Director

Ms Rosette Kassem, Mr Kassem’s daughter (‘Rosette’)

Ms Mona Kassem, Mr Kassem’s daughter (‘Mona’)

Ms Amani Chouman, Employee at Buzzbee 

Ms Sarah Dablan, Employee at Buzzbee 

Ms Catherine Sirl, the applicant

[7] To avoid confusion, I shall identify Mr Kassem sons and daughters by their first name. 

Applicant’s evidence

[8] The applicant had been married to Jehad since April 2005. She was initially employed 

by her husband’s father, Mr Kassem, at his Palm Childcare Centre in Granville, NSW in or 

around February 2007. Palm Childcare is run through a company known as Windtones which 

is 100% owned by Mr Kassem, who is one of 2 directors together with his wife. A letter 

signed by Mona, dated 7 December 2007, disclosed that the applicant was employed full-time

by Windtone on a then wage of $421 gross per week. Wages were paid in cash. 

[9] The applicant said that while she was employed at Palm Childcare and later at another 

of the Kassem’s centres at Guildford, she carried out duties equivalent to a Level 3 Children 








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Services Employee. In early 2009, she commenced working at Buzzbee as the Service’s 

Director and that she had fulfilled the regulatory roles of Nominated Supervisor and 

Educational Leader. She took over this role from Mona when she commenced full-time work 

with another employer. The applicant believed that parents and staff regarded her as the 

Director of Buzzbee.

[10] In September 2015, the applicant and her husband separated. Nevertheless, she 

continued to work at Buzzbee and while she had issues with members of the family, she 

maintained good relations with Mr Kassem. 

[11] The applicant claimed her duties at Director Level 2 for a Centre licensed for between 

40-59 children, included:

a) overseeing the Centre’s activities and being ultimately responsible for its 

operations;

b) running the Centre staff rostering;

c) duties as the Nominated Supervisor (and registered as such with the appropriate 

authorities);

d) being the Educational Leader;

e) being a Room Leader;

f) holding the role of ‘Floater’, which meant she oversaw all the various children’s

rooms and oversaw rooms when others went on breaks; and

g) cooking on Mondays.

[12] In December 2015, the applicant and her husband reconciled, but the relationship soon 

deteriorated again. There were several heated arguments and her husband left the rented home 

she lived in (owned by the Kassems) with her five children. Her husband divorced her under 

Islamic conventions on 29 July 2016. Mr Kassem dismissed her two days later. 

[13] The applicant set out the events of that day – Sunday, 31 July 2016. A parent had 

phoned her around midday to ask what was going on at Buzzbee as there were a number of 

cars in the car park. The applicant understood the cars belonged to members of the Kassem 

family; which was strange, as members of the family, other than her husband, did not usually 

attend the centre, particularly on weekends. 








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[14] At around 5pm, Mr Kassem phoned her. She understood that he was at the Centre and 

that he had been there for some time with other family members. She later found out they had 

been removing files, changing the locks to the building and padlocking the entry gate with a 

large chain. In the phone call, the applicant said that Mr Kassem had said words to the effect 

of:

‘Listen Catherine, I heard what happened between you and Jehad and I’m not happy, 

Jehad is very upset and I’m sure you are too but I think it’s best for your safety and 

the service that you don’t come back to work. I don’t want you to return to the 

Centre.’

[15] The applicant said she was shocked and dumbfounded by these comments and she 

proposed to meet to discuss the matter. However, Mr Kassem replied that she had ‘some stuff 

from the Centre and we need it back.’ He proposed she come to the Centre at 8.30pm. She 

said she could not do so because she was caring for her five children and the next day 

(Monday) would be better. Mr Kassem replied:

‘I don’t want you to come to the Centre in work hours – it would have to be in the 

evening.’

[16] The applicant then called her sister who advised her to meet Mr Kassem that night,

rather than wait until the following evening. She rang Mr Kassem’s mobile, but his daughter, 

Rosette answered. She told Rosette she would come to the Centre at 7.30pm and Rosette said 

she would inform her father. Mr Kassem called her back within minutes and they agreed to 

meet at 8pm with Rosette. When the applicant arrived with her three youngest children, she 

was met by Mona in the car park. Mona asked what happened between her and her brother.

The applicant replied that she was sure she knew (what had happened).

[17] When she met with Mr Kassem, her two sisters-in-law (Mona and Rosette) and one of 

her brothers in law, Fowzi, were present. She claimed she felt ‘very intimidated’ and a little 

frightened. She switched the record function on her phone and recorded the meeting for 57 

minutes, until her battery went flat. As a result, the first five minutes and the last 20 minutes 

of the meeting were not recorded. The Kassems were unaware the conversation was being 

recorded. 








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[18] At the meeting, Rosette did most of the talking which amounted to a series of demands 

that she:

 hand over all staff contact details;

 advise where all staff files and sign in and out sheets were for the following week’s 

children and where enrolment forms were located;

 advise where the staff group certificates were and the time and wage books. She 

told them Jehad had the book as he was checking the tax calculations;

 provide details regarding professional development grant money and preschool 

grant money;

 provide login details for the security cameras and computer systems and told to 

remove any private photos or documents from the Buzzbee system;

 hand over all keys, log into the CRM system so the password could be reset and 

told to delete all personal files (this took 15 minutes).

[19] The applicant said they then discussed some of the families who use their service and 

the current status and cash amounts received. The applicant claimed that Rosette advised she 

would be in the next day to take over her job of running the Centre. While Rosette was critical 

of the Centre’s record keeping, the applicant said she could answer every question asked of 

her and find every requested document. 

[20] The applicant inquired about her outstanding pay and entitlements and Mona told her 

she would calculate them - Mr Kassem had said:

‘don’t worry we’ll give you whatever you want. We are going to pay you whatever you 

are owed. We will pay, we will pay.’

The applicant also asked for a termination letter. This request upset Mr Kassem. The applicant 

also asked to be reimbursed for items she had purchased at Kmart for the Centre, with her 

own money. The applicant said that in the following week, she had received many phone 

calls, mostly from Rosette about operational issues. 

[21] Since her dismissal, the applicant said she had been under significant financial stress. 

She had applied for 14 jobs and attended two interviews. However, because she is the sole 

carer of five children, between 4-16 years of age, this was very restrictive on roles within the 








[2017] FWC 543

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industry. In addition, her ex-husband withdrew $107,000 from a joint bank account, without 

her knowledge or approval, and had refused to return the money. As a result, she has been left 

with a $3,800 a month mortgage and interest on the $107,000. The applicant also claimed she 

was owed $21,724.48 in unpaid statutory entitlements and underpayments over at least three 

years, due to the difference in pay rates between Director Level 6 ($1,207.90 per week) and 

Children’s Services Level 4.2 ($914.66 a week). 

[22] The applicant did not include any details in her statement of two meetings she had 

with Rosette on 1 August and on 9 August 2016 (also with Mr Kassem). Both of these 

meetings were recorded and the applicant’s incomplete recording of the meeting on 31 July 

2016 were tendered in the proceedings. The applicant was questioned about these meetings in 

cross-examination, which I will shortly come to. 

[23] In cross-examination Ms Sirl agreed that when she first worked at Palm Childcare 

she worked part-time, $12.00 an hour and that she was ‘on the books’ and paid tax. She stated 

that during her employment, she only had two months off for the birth of her daughter in 2009 

and two months off in 2012 for the birth of her son. She was not the Director of Buzzbee at 

the time, but she was performing management duties and had completed a Certificate III. The 

applicant agreed she was not given any letter of offer as a Director of any Centre. In 2013, she 

became the Nominated Supervisor doing payroll, staff appraisals, staff meetings, rostering,

sign ons and sign outs. She would liaise with a consultant, Mr David Morphett in respect to 

pay and entitlements and had paid herself. 

[24] The applicant agreed that she had worked with Mona at Buzzbee for a year or two 

before Mona left. She understood Mona may have been the Nominated Supervisor overseeing 

the Centre during this time. However, the applicant added that they were both overseeing the 

Centre. During her questioning, Mona accused the applicant of misconduct and having been 

issued with warnings in 2013 about poor management of the Centre. 

[25] The applicant acknowledged that in the meeting on 31 July, Mr Kassem has said, more 

than once, that he would pay her leave. Mr Kassem had also told her she would be paid all her 

entitlements, but he needed all the time and wages records. On that day, she had said that the 

tax receipts and the wages books were with Jehad. She conceded however, that she retained 

one new wages book which was in her car and her ex-husband had the other wages books. 








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The applicant claimed that her ex-husband would take all the money paid by parents. He 

would pick it up or she would give it to him at home. Nevertheless, all payments by parents 

were recorded by the staff member who received them. 

[26] The applicant gave evidence of the meeting with Rosette on 1 August 2016. She had 

arrived at the Centre with a parent (Mr Errol Perrin, hereafter ‘Errol’ or ‘Mr Perrin’). She 

asked why she had been terminated and there was a ‘heated discussion.’ When she was asked 

if she had told Rosette ‘I won’t be coming back,’ she could did not recall saying this.

[27] The applicant gave evidence that, with Mr Kassem’s authority, she was in charge of 

purchasing resources and equipment for the Centre. She did this mostly by cash and 

occasionally with the Centre’s credit card. She conceded that no one asked her to do so. In 

March this year, she paid $700 for the purchase of bookshelves from IKEA. She kept the 

receipt for the purchase. On other occasions, she used her own money for such purchases. The 

applicant was asked to explain $7,000 in unreceipted monies. The applicant denied 

purchasing computers for the Centre having earlier claimed she had done so. This was 

because she had received an invoice from the computer shop with her name on it, although 

Jehad had made the actual purchase.

[28] Further at this meeting, she handed Rosette two notices from parents taking their 

children out of the Centre. She explained that one couple were going overseas and had given 

her notice some time earlier and another was in her handwriting because the mother could not 

write English very well. The applicant said that she had not pressured two other employees, or 

anyone else to resign, soon after she had been dismissed. She denied contacting parents –

rather parents had contacted her. 

[29] The applicant denied taking days off from the Centre (such as every Friday). Whatever 

days she had off were RDOs. She explained that an earlier Department of Children Services 

(‘DOCS’) complaint about the Centre not being open at 7am, related to another Centre down 

the road with the same name. She had told DOCS this at the time and nothing came of it. As 

to the Centre’s child/staff ratios, the applicant said that while the Centre was licensed for 49 

children, it never had that number. It averaged 20-30, depending on the day and time of year. 








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[30] The applicant was asked why she had not referred to the details of the meeting on 9 

August in her witness statement. She attended this meeting to get her property back and 

request a termination letter. She had attended the Centre on 1 August with a parent and 

conceded she had not told Mr Kassem she would be doing so. Her other purpose was to 

advise Rosette that she had ‘stepped down’ from her duties as a Nominated Supervisor,

because she had been dismissed the day before. She denied it was the employer’s sole duty to 

inform the Department of her change in status. 

[31] The applicant was asked why, if she had felt intimidated on 31 July, she had not

contacted the relevant authorities, including the police? She did not think it was necessary, but 

it was very confronting that all the family were there when she had not been told of their 

presence. The applicant was questioned about an incident before 2013 when Mona had come 

to the Centre to check the security cameras. She had an issue with her doing so, because she 

was not authorised. She said she was persistently questioned about her role as a Manager and 

later as a Director of the Centre. 

[32] In re-examination, the applicant said she had paid herself the lower rate of pay on 

direction from Mona. However, she became a Director in 2014, but was in fact performing

that role from 2013. 

[33] The applicant reaffirmed that around 18 July 2016, her ex-husband withdrew a large 

amount of money from their joint account, had returned to their house and taken her jewellery 

and computer and broke things in the house. She said she had not expected Mr Kassem to call 

her on 31 July, when he told her:

 he had heard what happened;

 it would not be safe for her to return to the Centre;

 could she return some things she had at home (the tax books); and

 he wanted to meet her. 

She initially declined to meet, but after talking to her sister, she wanted to get to the bottom of 

what was happening. Mr Kassem did not want her to meet him during work hours. She had 

understood that Mr Kassem had not wanted her to return to the Centre. She believed this 

meant she was ‘definitely terminated.’ The applicant said she had heard during the day that 

there were cars at the Centre and a new, huge lock had been placed on the gate. When she 








[2017] FWC 543

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arrived at the Centre, she had understood only Mr Kassem and Rosette would be meeting her. 

Rosette had asked her about purchases for the Centre, which had always been receipted, even 

if she had used her own money. She had understood that she would have to return the time 

and wages book, although it was a brand new book, with only one entry. She had it because 

she was working out the tax. 

[34] In further questioning, the applicant insisted she had never approached any parents 

after 31 July 2016 to ‘bad mouth’ the Centre. Rather, she had received numerous phone calls 

from parents asking why she was no longer there. 

[35] The applicant said that when the Kassems took over the Centre, after obtaining it for a 

very low price, it was because it had a bad reputation, with low student numbers. It was 

running, and still runs at a loss. She agreed this was due to ‘massive competition’ from other 

providers in the area. 

[36] The applicant said the nature of the allegations, the demands and questions of her at 

the meeting on 31 July indicated to her she was not just going on leave, but was being 

dismissed. She was very upset and felt intimidated. She had asked why she was terminated, 

but was never given an answer. She had asked for her entitlements, but was told that they 

would be paid when she returned the wages book. 

[37] The applicant was asked about a poster on the wall of the Centre, current at December

2015, which described the Centre’s structure. It was clearly visible to parents, staff and the 

Kassems. It showed her as the Director or Nominated Supervisor and Educational Leader. 

However, she was never acknowledged or paid as the Director and was required to take 

‘orders’ from the family. This upset her greatly. 

[38] The applicant said the only person she had felt comfortable with (Mr Kassem) had 

dismissed her and she was shocked. She had never stolen any money from the Centre and had

not taken any periods of extended leave. While she had collected cash, it was always written 

down and later handed to her husband, who had told her that was how it was done. She had 

never been given any warnings, or told she had conducted herself inappropriately. The 

applicant reiterated that she had carried out all the duties of a Director, Level 6 under the 








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Award and additional duties such as cooking on a Monday, looking after staff superannuation 

and taxation. 

[39] In questions from me to Mona, it was said that the applicant had worked at Palm 

Childcare in 2007 on an irregular, on call, casual basis, until Buzzbee opened in late 2009, 

when she worked part-time and then full-time in 2012. The applicant gave evidence that she 

had worked continually since 2007 for companies owned by Mr Kassem and had not taken 

any extended period of leave. However, she had taken six to eight weeks for the births of her 

two children. 

[40] At the conclusion of the applicant’s evidence, Mr Hanna tendered what was claimed 

to be contemporaneous notes made by the applicant of the events of 31 July 2016, which he 

had only been made aware of two days earlier. Mr Hanna also tendered the applicant’s Optus 

phone records for that day, which showed five calls to Mr Kassem’s mobile; three were not

answered, one was to say she would come to the Centre that night and the fifth to say she had 

arrived. Mr Hanna tendered the three taped conversations of 31 July, 1 August and 9 August

2016. 

For the respondent 

Ms Rosette Kassem

[41] Rosette holds a Bachelor of Education in Early Childhood and has worked in the 

industry for over 15 years. She had read the statements of her father and sister and believed 

them to be true and accurate. In a curious expression in her statement, Rosette said she 

‘witnessed almost everything that happened throughout the process of this grievance 

procedure between Mr Kassem and the applicant.’ Rosette described her as the Nominated 

Supervisor at Buzzbee. 

[42] As to the events of 31 July 2016, Rosette understood that her father and the applicant 

had reached an agreement that she would take leave temporarily, with pay, until the problems

with Jehad (her brother) eased and she would then return to work. Rosette acknowledged that 

at the meeting that day, she had asked the applicant where certain information was located, 

such as files and records, fee collections, staff information, wage books, cash, email and 








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passwords. The applicant had said she did not have the wages book, but retained a few cash 

payments from parents. She refused to disclose the email password.

[43] Rosette described the meeting with the applicant on 1 August 2016 as a ‘heated 

discussion.’ The applicant was very rude. She had raised very personal family issues in front 

of a parent (Errol). After some discussion about parents withdrawing their children from the 

Centre, the applicant claimed she was accused of stealing and raising the problems with her 

husband. Rosette said the conversation then turned to her return to work. It went along the 

following lines:

Rosette: I’m sure these issues can be resolved though if that is the case. Why 

don’t you just wait a little, give it some time for things to calm down 

and you will come back to work soon. 

Catherine: Rosie, I tell you, I’m not coming back 100%. 

Rosette: Well that’s you choosing not to come back. 

Catherine: Yes, I’m definitely not coming back. You made it out that I have stolen 

money. 

Rosette: That’s not true, stop saying that. My father trusts you and thinks highly 

of you. There isn’t any need for what you are saying or doing. He’s 

doing this in your favour and he is concerned about the problems that 

can occur at the Centre. 

[44] The applicant then asked for her Provider Number, as she had cancelled her 

Nominated Supervisor status and had advised the Department accordingly. Rosette said the 

applicant then said Errol’s child won’t be coming back. Errol had said ‘Catherine, are you 

sure you want to leave?’ The applicant replied ‘yes, definitely.’

[45] In respect to the marital breakdown, Rosette believed the respondent had no choice but 

to act professionally and propose a ‘cooling off’ period of paid leave before the applicant 

returned to work. However, the applicant left her employment on her own accord, when she 

refused to accept paid leave. 

[46] Rosette briefly described a further meeting she had with the applicant on 9 August. 

The applicant brought in some receipts and a wages book and handed her a list of items which 








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she had to pay for during her employment. She claimed these items belonged to her. She 

agreed to provide other documents in her possession. 

[47] In her statement, Rosette said that after the applicant left the Centre, she had heard of 

‘many things’ from staff about them being threatened and intimidated by the applicant. The

applicant had degraded the service, by contacting parents and making false allegations against 

the Centre. Rosette believed she was doing this due to the issues she had with her ex-husband. 

[48] In cross-examination, Rosette had understood that as the applicant and her husband 

were in a ‘heated situation’, it was in the best interests of the Centre for a ‘cooling off’ period.

The applicant could not return to work until the ‘issues between her and Jehad settled.’

Rosette insisted that no one had accused the applicant of stealing. In fact, she believed her 

father was doing the applicant a favour by taking her out of the Centre. It was fair and equal 

for both parties. 

[49] During Rosette’s cross-examination excerpts from the audio tapes of the meetings on 

31 July and 1 August were replayed. Rosette agreed the applicant had asked for a final

termination letter, because she had felt she had been ‘fired.’ However, she said no letter was

provided, because she had not been terminated. Rosette agreed she was heard to say ‘yes, I’ll 

do it’ (provide the letter), but she had felt intimidated and was scared by the presence of the 

parent the applicant had brought to the meeting (Errol). 

[50] In re-examination, Rosette said that when the applicant first arrived at the meeting on 

1 August 2016, she had said ‘I’m here. I wanted to bring some things and clarify some stuff 

and to take the things which she believed belonged to her.’ Her voice was loud and angry, 

particularly when talking about Jehad. Rosette generally described the applicant as very 

manipulative. She puts ‘words in your mouth’ by claiming to have been dismissed. The day 

before she had behaved very differently. She was calm and they had been cooperating about 

the handover. She had agreed to take some time off and allow her (Rosette) to take over the 

running of the Centre. Rosette said she was unaware their conversation was being taped 

during the 31 July and 1 August meetings. 

Ms Mona Kassem








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[51] Mona holds a Bachelor’s degree in Education and has worked in her father’s childcare 

business for many years, helping to establish all three Centres. She ended her employment 

with her father at the end of January 2013 when she became Head of Campus of an 

independent school, catering for students from Kindergarten to Year Nine. Although no 

longer employed by her father, she continued to assist him and check on issues at the Centres

in terms of accreditation and staffing. 

[52] It was Mona’s evidence that the applicant had longstanding issues with her overseeing 

her work. On one occasion, the applicant had stormed out of work when she had wanted to 

check the security cameras, saying that she did not trust her and there was no need to check 

the cameras. Her father later told her to minimise checking on the applicant, because she had 

convinced him that she was being checked on unfairly. 

[53] Mona said that the applicant had been trained to run the Centre when all systems were

already in place. She claimed that the applicant had received a few warnings from DOCS,

which management had resolved. 

[54] Mona said she had attended the 31 July and 9 August meetings. She agreed with what 

her father and sister had set out in their statements about what occurred at these meetings. She 

added that when she had asked the applicant what had happened to the outstanding cash, she 

had said that Jehad had taken most of it, and she had used some to buy items for the Centre,

for which she had receipts. 

[55] In cross-examination, Mona described her role at Buzzbee as ‘Management Control.’ 

She was not paid because ‘we’re family.’ In the years since she left, she had visited the Centre 

at least five or six times. Her father had asked her to make sure everything was running well. 

At family gatherings, the applicant had frequently told her what was going on at the Centre. 

Other management were also involved - the financial manager (Ed) deals with finances, tax 

returns and superannuation, her father oversees all the payments and Rosette acts as a mentor 

and consultant. Being family, the applicant had taken it upon herself to be involved in 

management and she took on roles without authority. She was not a Director and never 

appointed as one. Mona said that her father had full responsibility for all the Centre’s 

activities and functions which he delegates to her and her sister. Mona added that Rosette 








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performed all of the duties of Director, although not necessarily by being physically at the 

Centre. 

Mr Hafez Kassem 

[56] It was Mr Kassem’s evidence that the applicant first commenced working at Palm 

Childcare in 2007 and only worked for a month before taking a break. In mid-December 

2010, she commenced work on a casual basis at Rawson Long Day Care Centre. She had 

extended absences to look after her children – her fourth child was born in July 2009 and fifth 

child in January 2012. The applicant returned to work as a General Child Care worker around 

July 2012, until being appointed Nominated Supervisor in 2013. In 2015, her relationship 

with his son broke down and she moved out of home with the children, but continued to work 

at the Centre. 

[57] Mr Kassem recounted his version of the events of 31 July 2016. He had phoned the 

applicant and the following exchange was said to have taken place:

Mr Kassem: Is it true that you were with another man?

Ms Sirl: Yes

Mr Kassem: You think it is safe to be here with your husband at work now?

Ms Sirl: No 

Mr Kassem: I would suggest a good idea would be to take leave and I will pay you 

like you are working until you solve the problem with your husband. 

Now it’s heated up and not a good idea to be at work together. 

Ms Sirl: Yes that’s true. 

Mr Kassem: You agree it is not safe for the school because you may fight with him 

at work because it is heated up now. I don’t want to affect the school, 

as you know the numbers of students are very low. 

Ms Sirl: Yes, that’s true, I understand. 

Mr Kassem: You know Catherine you are not just an employee, you are family. 

Ms Sirl: Yes we are, I have no problem taking leave. 








[2017] FWC 543

16

Mr Kassem said that about half an hour later, the applicant arrived at the Centre without 

telling him. She asked about the locked gate and agreed to meet in half an hour with Mona 

and Rosette. Mr Kassem said that when they met, the following conversation occurred:

Mr Kassem: It is agreed that you will take leave and be paid?

Ms Sirl: Yes. What are my entitlements?

Mr Kassem: Don’t worry we will work it out, I just need you to take some time off. 

Ms Sirl: Can I get a termination letter?

Mr Kassem: What do you need a termination letter for? That is not necessary, you 

are not being fired. I just want you to cool off and take some time to 

sort out your issue with Jehad. 

Ms Sirl: Okay, when can I get my annual leave pay? 

Mr Kassem: As soon as I can get the wages book to calculate your entitlements as 

you claim you do not have the wages book. 

Ms Sirl: It is with Jehad. 

Mr Kassem: I will check with him. 

Ms Sirl: Okay. 

Mr Kassem confirmed his daughter’s evidence concerning her requests during the meeting for 

documents and information, including the $1000 cash the applicant had retained in her 

possession. 

[58] Mr Kassem responded to the applicant’s evidence as follows:

(a) He had never employed anyone as a Director. The applicant was appointed a 

Nominated Supervisor on 17 May 2013 as advised to the Department of Education 

and Communities.

(b) When its licence was granted on 3 April 2009, Ms Omaya Annad was the Authorised 

Supervisor of Buzzbee.

(c) He agreed he had a good relationship with the applicant, but did not want to get 

involved in her and his son’s personal issues. After the first breakdown in the marriage 

in 2015, the applicant continued to work at the Centre. 

(d) He denied the applicant was recognised by parents as Director of the Centre. The 

supportive letters the applicant had were from parents and staff who no longer use the 

Centre or no longer work for the business.








[2017] FWC 543

17

(e) He had changed the locks at the Centre after his son told him that he believed the 

applicant would steal furniture and money.

(f) He denied ‘ordering’ the applicant to delete her personal files. He reminded her that 

she should not have personal files on the computer.

(g) He insisted that he had no intention to dismiss the applicant and had emphasised that 

he would give her paid leave.

(h) The applicant had brought a parent to the Centre on 1 August 2016, without an 

appointment.

[59] At the meeting on 9 August, Mr Kassem had the following conversation with the 

applicant:

Mr Kassem: I have asked you to take some leave so you can resolve your 

personal issues. 

Ms Sirl: Am I going to be paid?

Mr Kassem: Of course, I told you I would pay you, you will take paid leave. 

Ms Sirl: It is too much for me to handle all this now, I don’t want to take 

leave, I just don’t want to come back. 

Mr Kassem: You don’t have to do that. 

Ms Sirl: No I do, I don’t want to come back here. 

Mr Kassem: You should take paid leave okay?

Ms Sirl: Okay, but I don’t know if I want to come back, I’m not 

appreciated and things will only get worse now. No one has 

been here, I’ve been pretty much running it from 2011. No one 

has entered the centre for over eight years. 

Mr Kassem: Catherine, we have only been open since 2009, what are you 

talking about?

Ms Sirl: Oh maybe I’ve been here since 2010. 

Mr Kassem: I think you started in 2012 and you haven’t been running the 

business that only occurred in about 2013. Anyways we’ve 

agreed that you will take paid leave. Rosie wants to ask you 

some questions. 








[2017] FWC 543

18

Mr Kassem was present when Mona had asked the applicant about the receipts. The meeting 

concluded with him accepting she was leaving the business, but he would need to have all 

wages books and receipts to calculate her entitlements. 

[60] Under a heading Misconduct, Mr Kassem claimed that:

 the applicant had not purchased most of the resources for the Centre and had never 

given him any cash;

 the applicant would pay him for items on her credit card to earn points and would use 

the fee payments to reimburse herself;

 the applicant had not bought three computers - Jehad had bought them. When asked 

for receipts, she couldn’t provide them, she then said ‘OK either way, I don’t care, if 

I’m mistaken it’s fine’;

 he was disturbed that a Nominated Supervisor did not know where cash purchases 

were;

 the applicant had withheld the wages book and tax receipts, despite insisting they were 

held by her ex-husband;

 the applicant was withholding $1000 cash in parent’s fees and had removed money 

from the business without authorisation;

 the applicant had encouraged staff to leave the Centre and had advised parents to 

remove their children because the Centre was to close;

 the applicant had threatened a work colleague; and

 the applicant had performance and conduct issues in 2013. 

[61] Mr Kassem believed that the applicant was only owed four weeks annual leave. He 

maintained that she had not worked continuously, for between 5-10 years, with any of his 

related entities. 

[62] In his oral evidence, Mr Kassem said he had heard about his son’s marital problems 

from other members of the family, although initially they had tried to hide it from him. He 

said nothing at the time and hoped the reconciliation in 2016 would have succeeded. He 

understood that the allegation against the applicant was that she had an affair. He also was 

aware she had an AVO against his son which was issued on 6 November 2015. However he

did not inquire as to why the AVO had been issued because he did not want to be involved. 








[2017] FWC 543

19

[63] Mr Kassem said that the family was not happy about the applicant returning to her 

husband, because she had had an affair. However, he had not threatened to disinherit his son if 

he remarried (under Islamic Law) the applicant. (Mona then helpfully explained to the 

Commission the processes of remarriage and divorce under Islamic Law, which I need not

repeat here. I also note that the applicant had been a Catholic and had converted to Islam). 

[64] Mr Kassem’s cross-examination continued. He said he did not hear about his son 

withdrawing $107,000 from the joint account until later. He had not heard anything about his 

son stealing jewellery and money from the applicant. Mr Kassem said that on 31 July, his son

had told him that the applicant ‘had been found again with other (sic) person.’

[65] Mr Kassem claimed that the applicant’s version of events on 31 July, was ‘complete 

lies’ and his version of what had happened was correct. She had agreed she had been with 

another man. Mr Kassem now denied referring to her safety at the Centre during the first 

phone conversation. He said the solicitor had got that point wrong when it was included in his 

statement. 

[66] Mr Kassem reaffirmed that he had changed the locks on the Centre’s gate on 31 July, 

after his son warned him the applicant intended to steal furniture and money. Mr Kassem also 

believed she might ‘hide document(s).’ Mr Kassem said he was unaware the applicant had 

decided to attend the Centre that night, despite her having rang Rosette to say she would be 

coming. He had believed his son when he told him 10 minutes before she arrived that she may 

attempt to steal furniture and money. He explained the speed with which the locks were 

changed by claiming that the Centre already had a new chain and padlock on the premises. He 

rejected the applicant’s evidence that a parent had called her earlier in the day to say a new 

padlock and chain had been put on the gate earlier. 

[67] Mr Kassem agreed that he, his two daughters and son were already at the Centre when 

the applicant arrived. However, they had not been there during the day. He had arrived around 

6-6.30pm that night with his son and put the new locks on straight away. He reiterated that 

Rosette had not told him the applicant had called his mobile and changed her mind about not

coming that night. 








[2017] FWC 543

20

[68] Mr Kassem was asked why, if he had a conversation with the applicant that night in a 

one hour meeting, he could only be heard on the tape for 30 seconds or so? Most of the 

meeting involved Mona and Rosette questioning the applicant. He was asked why he had not

mentioned in his statement that his daughters were doing most of the talking and his son was 

present. Mr Kassem explained that he had reached an agreement with the applicant (that she 

would go on paid leave) in the car park and not later inside the Centre. This was not 

mentioned in his statement and he did not know why this conversation had been omitted. 

[69] Mr Kassem conceded he had not read his statement before signing it and then said he 

had read it. He claimed he signed it on 2 December 2016, but he had already agreed he was at 

his farm in Young that day. He then said it did not matter where he was – ‘it was in his 

statement.’ In a further exchange with me, Mr Kassem said he could have signed his 

statement after 2 December. 

[70] Mr Kassem claimed that his intention with the situation was to look after the children 

(of the marriage) until things with his son and his wife settled down. In the meantime, the 

applicant would be paid. Nevertheless, he agreed his ultimate loyalty was to his son. Mr 

Kassem said his son had not done what the applicant had done. It was his son who was ‘in the 

right.’ The applicant was to stay away from the Centre for the time being. She had not been 

paid since 31 July because she had retained the wages book. However, the book was returned 

on 9 August, but there was still the issue of $800 in cash, which the applicant had in her 

possession. Mr Kassem agreed the applicant had asked about her entitlements on 31 July, 1 

August and 9 August and had still not been paid anything. He conceded he had a duty to pay 

her.

[71] Mr Kassem acknowledged that he did not know the Award that applied to staff at the 

Centre, as his daughter handled all staff issues. He did not know about the appointment of the

new Director, Ms Sarah Dablan. Nor was he aware Ms Dablan had referred to herself as the 

Director on a social media page. Mr Kassem accepted that he had not performed most of the 

duties of a Director under the Award. At this point, Mona interjected to query whether it was 

necessary to have a Director under the Award. She was asked why the applicant and others

had styled themselves as the Director for years, without any challenge from the owners?








[2017] FWC 543

21

[72] Mr Kassem did not know why the applicant requested a termination letter, when she 

had not been terminated. Mr Kassem was questioned about this comment to the applicant on 9 

August:

‘You cannot work here because of your husband. If we fix the situation with your 
husband, the job is available.’

He explained that he meant (the job) was not available for the ‘time being.’

[73] In re-examination, Mr Kassem reiterated that when the applicant and his son’s 

relationship first broke down in 2015, he had not terminated her employment and had not

even inquired as to what she had done (the alleged affair). She continued working for a further 

three to four months after the marriage breakdown. 

[74] Mr Kassem confirmed that although his son was at the Centre on 31 July, he had not 

participated in the meeting with the applicant, and was not even in the room. 

[75] Mr Kassem said Jehad was in charge of staff tax returns, superannuation, writing 

cheques and was also the maintenance person. Mr Kassem claimed that he treated the 

applicant better than his own daughters; he trusted her, had full confidence in her and never 

had a problem with her. Mr Kassem insisted he did not terminate the applicant. Nor did he

give her any idea or impression which would have made her believe he was intending to 

terminate her employment. 

Ms Sarah Dablan 

[76] Ms Dablan was working part-time at the Centre at the start of 2015. She had had often 

observed the applicant use money from parents’ fees to purchase items from Bunnings for the 

Centre. When later asked how she knew the applicant had gone to Bunnings, Ms Dablan said 

because she had told her where she was going. Ms Dablan believed that the applicant had a 

strong relationship with a colleague, Ashlee Strike, who was a previous full-time employee.

She often observed them talking for hours in the office or going to lunch. 

[77] Ms Dablan gave evidence that the applicant had contacted her sister and told her to 

take her children out of the Centre, as she was leaving. Ms Dablan believed the applicant had 








[2017] FWC 543

22

also told other parents to do the same. Since the applicant had left, Ms Dablan claimed the 

feedback from parents was how much their children’s reading and writing had improved. 

[78] Ms Dablan said she was sad that other staff had left the Centre after being influenced 

to do so by the applicant. In fact, Ashlee had told her she was sad to leave, but as the applicant 

was her friend, she felt she had to do so. Serene (also a previous employee) had told her she 

had regretted leaving, and she should not have listened to the applicant. 

[79] In cross-examination, Ms Dablan said that on 5 August 2016, when she had posted on 

Snapchat that she was the new Director of Buzzbee, she had only been joking and ‘showing 

off.’ The owner of the Centre was the Director. However, she refused to comment when asked 

if Mr Kassem had attended the Centre when she was there? She was directed to answer. She

replied that Mr Kassem had attended the Centre, but could not recall how many times. When 

he did so, he did some paperwork and looked around. Ms Dablan could not recall if Mona had 

attended the Centre, prior to 31 July 2016. 

[80] Ms Dablan denied ever receiving a written or verbal warning about her own conduct 

or performance. 

[81] In re-examination, Ms Dablan said that the applicant had contacted her twice by 

phone after 31 July and had abused her. The applicant had said ‘if you take anything from the 

Centre, I’m going to call the police and come to you.’ The applicant had called Ms Dablan’s 

sister and had screamed at her too. Her sister had been shocked. Ms Dablan said that she was 

frightened of the applicant. When she had pressured her to leave the Centre, she said that if 

she did not leave, she was ‘a dog.’ 

[82] Ms Dablan claimed that the applicant would often chat to Ashlee in the office  and 

leave all the kids with her in one room. Ms Dablan gave evidence that the applicant would 

often not start work until 9-9.30am, although the Centre opened at 7am. She would take most 

Fridays off, without explanation. 

Ms Amani Chouman 








[2017] FWC 543

23

[83] Ms Chouman started work with the applicant as a casual at the end of 2015. She now 

works part-time. Although it was her first job, she noticed there was no routine or educational 

program in place and she had received no induction. The applicant would leave her on her

own with the children when she and Ashlee went out for long lunches or were chatting about 

unrelated work matters in the office. The applicant and Ashlee appeared very close. They

would go shopping and have lunch together. Ms Chouman conceded that she only saw the 

applicant a couple of times, when she was working as a casual. Later, in re-examination, Ms 

Chouman said that the applicant would call her once or twice a week to offer her casual hours.

[84] In cross-examination, Ms Chouman said she believed the applicant was the 

Supervisor of the Centre. She was unaware of the management structure posted on the wall of 

the Centre. Ms Chouman said she had only met Mr Kassem once. She did not know Mona 

and she saw Rosette twice a week at the Centre after 31 July 2016, but not before that date. 

[85] Ms Chouman agreed the applicant was effectively running the management of the 

Centre. Ms Chouman gave evidence of a father who called the Centre, two months after the 

applicant had left, complaining that the applicant had told him that ‘some educator had been 

hitting his son.’ When Ms Chouman was asked if she was aware the father was currently 

facing sexual abuse charges, she said she was not aware of this allegation. 

[86] In re-examination, in respect to the father’s complaint, Ms Chouman said that at the 

time, she informed her supervisor, Rosette and filled in a complaint form.

[87] Ms Chouman added that after 31 July 2016 ‘we always receive good feedback from 

the parents about the improvement of the Centre - The children were learning more and were 

better behaved.’

SUBMISSIONS 

For the applicant 

[88] Mr Hanna submitted that the applicant was dismissed by Mr Kassem in a telephone 

conversation on 31 July 2016. Alternatively, the course of conduct engaged in by the 

employer was such that a constructive dismissal had occurred; see: Mohazab v Dick Smith 








[2017] FWC 543

24

Electronics Pty Ltd (No 2) 62 IR 200 (‘Mohazab’) and Kylie Bruce v Fingal Glen Pty Ltd 

[2013] FWC 3941 (‘Fingal Glen’). Mr Hanna said the uncontested evidence is the applicant 

was dismissed on 31 July 2016, without notice - literally locked out of the Centre and forced 

by Mr Kassem to stay away from the Centre and stay with her children, until the issues with 

her ex-husband were resolved. This was the same person who had:

 physically assaulted the applicant on numerous occasions;

 been the subject of two AVOs;

 misappropriated $107,000 from their joint account and stole money and property from 

her;

 accused the applicant of being a thief; and

 incited his father to lock her out of her place of employment. 

[89] The applicant’s dismissal was unfair and unjustified in circumstances where she had 

always acted responsibly and competently in her position as Director of the Centre. She had 

received no warnings, prior to being dismissed, because of the severe breakdown of her

marriage to the employer’s son. 

[90] Mr Hanna claimed there were serious issues of credit which reflected adversely on the 

respondent’s witnesses. This evidence included:

 Mr Kassem admitted that his statement was written by Mona and his lawyer.

 Mr Kassem had not read his statement before signing it, and admitted not signing it on 

the date identified in the document.

 Rosette avoided questions by answering ‘no comment.’ She contradicted other of the 

respondent’s witnesses, concerning accusations against the applicant.

 Mona claimed to be managing the Centre at the same time as she was working another 

full-time job. She admitted she had only visited the Centre 5-6 times in three and a 

half years since January 2015. She claimed her father was the Director of the Centre 

when her father’s evidence was that he did not perform the vast majority of Director 

functions.

 While the applicant’s ex-husband did not ultimately give evidence in the case, he was 

present on the first day and was ejected from the court by the Deputy President 

because he was attempting to intimidate the applicant during her evidence by 

threatening gestures and making foul sounds. He avoided cross-examination by 








[2017] FWC 543

25

claiming illness requiring temporary hospitalisation, but left hospital twice – once to 

drive his daughter to a function which he had attended the night before he was due to 

be cross-examined and the second time when the scheduled hearing was cancelled. 

Apparently, he could not see a doctor for his ‘illness’ until March 2017, despite his

condition being said to be an emergency. Mr Hanna also referred to his violent past

(see paragraph 87 above). 

 While Rosette said Jehad was a very important witness, she later withdrew his 

statement. 

[91] Mr Hanna addressed two disputed issues in relation to the applicant’s employment.

Firstly, the applicant had been continuously employed by Mr Kassem from 2007 as evidenced 

by a letter from the employer to Centrelink signed by Mona. Since that time, the applicant had 

two brief periods of maternity leave – 27 June 2009 to 3 August 2009 and 23 June 2012 to 12 

March 2012. As the respondent had failed to produce the time and wages records under a 

Notice to Produce, the applicant’s evidence as to her period of employment, should be 

accepted. 

[92] Secondly, as to the applicant’s correct classification, Mr Hanna submitted that the 

evidence clearly established she had worked as a Director at Level 6.4, under the Children’s

Services Award since January 2013, when Mona left the Centre to work full-time elsewhere. 

Other evidence supporting this contention included:

(a) the applicant’s unchallenged evidence that she had undertaken all the tasks and 

functions of Director;

(b) a management structure poster had been posted in 2013 on a wall at the Centre, setting 

out the applicant’s role as Director;

(c) Mona admitted the applicant ‘ran’ the Centre;

(d) Mona claimed her father was a Director, but Mr Kassem himself acknowledged he did 

not perform the vast majority of a Director’s duties and functions;

(e) Mona asserted she acted as external management of the Centre, but conceded she had 

only visited the Centre five to six times in three and a half years from January 2013;

and

(f) the respondent’s witness, Ms Dablan could not recall either Mona or Rosette visiting 

the Centre before 31 July 2016. 








[2017] FWC 543

26

[93] Mr Hanna submitted that the respondent had not proven any of the allegations of 

misconduct levelled at the applicant. On the contrary, at no time, was the applicant issued 

with any warnings about her conduct. The one instance in 2013, about her performance, was

no more than an administrative oversight. Moreover, the applicant was well regarded by both 

parents and staff. The applicant had an entirely reasonable explanation for holding $700 in 

cash collected from parents that week and not handed over to her ex-husband. On 31 July 

2016, she had acknowledged holding the money in its original envelope. It was later returned 

to the respondent in full. 

[94] Mr Hanna said that the applicant received no warning or notice of her dismissal. It 

was totally unexpected and had nothing to do with her performance or conduct. It was 

because of the marital problems with Mr Kassem’s son. The respondent had acknowledged 

that Jehad was ‘very aggressive, very angry.’ There were other factors relevant to her 

dismissal, including:

(a) Jehad’s violent past;

(b) the family’s ‘unhappiness’ when the couple briefly reconciled in Jan 2016; and

(c) the theft by Jehad of $107,000 from their joint account had left the applicant to pay the 

mortgage and interest on the full amount. 

[95] Mr Hanna submitted that Mr Kassem’s words ‘for your own safety it is better if you 

are not allowed to return to work’ and then ‘I don’t want you to return to the Centre’ left the 

applicant in no doubt she had been dismissed. The gate’s locks were changed because Mr 

Kassem had been told the applicant intended to steal furniture, money or documents. Mr 

Kassem was also upset at the applicant’s alleged affair, but had not been concerned about the 

violent assaults on the applicant, preferring they sort out their problems themselves. In 

addition, Mr Kassem wanted the applicant to stay with the children and have them accessible

to the Kassem family. Mr Kassem accepted his first loyalty was to his son and stood by him 

as the wronged party in the marriage. 

[96] Mr Hanna identified other indicia of the applicant’s dismissal, including:

(a) she was given no date for her to return to work;

(b) in all meetings with the respondent, she had asked for her entitlements and a 

termination letter and insisted she had been dismissed and had been ‘ambushed’;








[2017] FWC 543

27

(c) any return to work was dependent on restoring good relations with her ex-husband. 

This was highly unlikely, given the circumstances and the conduct of her ex-husband;

and

(d) the respondent saw no issue with removing the applicant from her position as long as 

the children remained accessible to the family. 

[97] Mr Hanna put that the 31 July meeting was not a meeting at all because Mona and 

Rosette issued demand after demand to ensure the applicant turned over full control of the 

Centre to them. She was interrogated about records, staffing issues, finances and passwords. 

[98] At both meetings on 31 July and 9 August 2016 Mr Kassem had agreed to pay the 

applicant her entitlements, contrary to his earlier proposal to pay her leave and other monies. 

She had been paid nothing since 31 July 2016. Excuses for not doing so, do not stand up. 

While claiming she had not been accused of theft, this was the inference about the $700 cash

the applicant had retained. As to the suggestion that the applicant having phoned the 

Department of Education to notify she was no longer the Nominated Supervisor, was an 

indication of her resignation, Mr Hanna put that:

(a) she was required to do so by law having been dismissed; and 

(b) she was so angered by what had happened, she did not want to wait for the employer 

to do so. 

[99] Mr Hanna also set out what he described as a ‘long course of denigrating conduct’ by 

the respondent. It had continued to pay her low and incorrect rates as the Director of the 

Centre; ordered her to do extra tasks, such as accounting and book keeping in her own time,

without pay; dismissed her for unrelated work issues and protected a violent and 

misappropriating son. 

[100] Mr Hanna submitted that the applicant should be found by the Commission to have 

been unfairly dismissed and awarded compensation of 26 weeks pay at the Director Level 6.4

under the Award at a rate of $1,207.90 multiplied by 26, being $31,405.40, plus 

superannuation. Costs were also sought based on the respondent’s ‘vexatious’ conduct. 

For the respondent








[2017] FWC 543

28

[101] In a detailed 48 page closing submission, the respondent largely quoted excerpts from 

the transcript to demonstrate its view that the respondent’s witness’ evidence should be 

preferred over that of the applicant. Without setting out the specific transcript references, this 

evidence was said to support the following propositions, questions and submissions:

(i) The applicant acknowledged a good relationship with Mr Kassem and the fact 

she continued working at the Centre after the first marriage breakup in 2015,

contradicts her claim of being constructively dismissed by him. He had full trust and 

respect for her. 

(ii) The applicant had admitted to having an affair and agreed to a temporary paid 

leave arrangement, as a strategy not to cause problems at the Centre. This was 

necessary because Mr Kassem ‘guarded his business.’ If she had not agreed, a Plan 

B would have been considered.

(iii) Mr Kassem did not believe he or his daughter were rude, intimidating or had 

‘ambushed’ the applicant. If they had, she should have reported the conduct to the 

authorities and not attend meetings without a support person.

(iv) Mr Kassem’s evidence of what he told the applicant was the reason for her not 

to return to the service was contradicted by her when she said ‘she had no idea why 

he would have said that.’

(v) The applicant contradicted herself when she said that Mona and Eddy had kept 

her pay at Level 4 and then claimed she had paid herself and increased her wages 

after consultation with the external HR/IR consultant. Why is the applicant bringing 

up pay issues when she never raised them earlier?

(vi) The applicant claimed she performed the duties of the Director, but the records 

show that in the 2 weeks immediately preceding 29 July 2016, she was barely at 

work for the time she claimed 80 hours. Her phone records prove this. 

(vii) The management structure document, identifying the applicant as the Director,

was typed out by the applicant herself, but other staff (Ms Dablan) knew her only as 

the Supervisor. 

(viii) The applicant was not dismissed, because this was contrary to the evidence of 

Mr Kassem and Rosette. Further, Mr Perrin had asked her if she was sure she wanted 

to leave, and she responded ‘yes, 100%’ and later, on 9 August, when she said ‘I 

don’t want to come back to work.’








[2017] FWC 543

29

(ix) The respondent had wanted to continue paying her, but her resignation took it 

out of their hands on 1 August 2016. She also took her own name down as being the 

Nominated Supervisor. 

(x) The applicant’s tone, demeanour and behaviour underwent a ‘360 degree’(sic)

change overnight on 31 July to 1 August 2016. Mr Perrin knew it was a set up for an 

unfair dismissal, but he felt obliged to support her. 

(xi) The following actions of the applicant were in ‘retaliation’ for the issues she 

had with Jehad;

 she degraded (sic) the Service;

 she degraded (sic) her husband;

 she convinced parents to remove their children from the Service;

 she persuaded two staff members to unwillingly resign; and

 she had intimidated and threatened staff.

(xii) If the applicant believed Jehad had stolen money from their joint account, why 

did she not report it to the police?

(xiii) It was not the respondent’s fault, the applicant’s marriage had broken down. It 

was not a constructive dismissal. 

(xiv) The respondent tried to support both parties by allowing a ‘cooling off period’, 

while they were stood down and paid (I note there was no evidence that Jehad had 

also been stood down. The first time this was mentioned was in closing 

submissions). 

(xv) At all times, Mr Kassem had assured the applicant she would be paid on leave, 

but he would need to have the wages book back, before paying her. 

(xvi) The applicant was not so much interested in her pay, as getting a termination 

letter, so she could ‘open a fabricated unfair dismissal claim.’ She was trying to 

‘frame’ and embarrass Rosette into giving her one. 

(xvii) Rosette was not the employer, so she could not agree to provide her pay or a 

letter. The applicant was very rude to her and demeaning of Jehad; whereas Rosette 

was ‘calm, collective (sic) and supportive.’ 

(xviii) Rather than provide the wages book - as she had agreed to do - the applicant 

filed an unfair dismissal claim. The wages book was not returned until 13 December 

2016, so she could not be paid. 








[2017] FWC 543

30

(xix) In the meeting of 1 August 2016, the applicant was loud, swearing, rude and 

demeaning – far from her claim of being intimidated, ambushed and humiliated. 

(xx) She attended the Centre, with a parent (Mr Perrin) as a support person, without 

any notice or appointment and secretly recorded the conversation. She presented 

Rosette with a set of demands and raised personal issues in front of the parent. She 

later deleted parts of the recorded conversation she did not want anyone else to hear. 

Rosette was embarrassed, confused and intimidated by the applicant, who has a 

‘manipulating character.’

(xxi) While Mr Kassem admitted putting a lock on the front gate, it was a normal 

security practice, as Mr Kassem had been informed by Jehad that the applicant ‘may 

have plans.’ Jehad knows his wife better than anyone. Safeguarding the Centre and 

taking precautions does not mean you do not trust the person. In any event, the 

applicant withheld records, receipts and money from parents until 13 December 

2016. 

(xxii) The applicant claimed to have had two meetings with the respondent after 31 

July, when there were three – she failed to mention the earlier meeting with Mr 

Kassem in the car park on 31 July. The applicant had documented the 31 July

meeting in her diary and had falsely said in her diary ‘Rosie was being rude’ when 

the recording discloses she was being supportive. 

(xxiii) Ms Dablan claimed the applicant commenced work mostly after 9am, whereas

the applicant insisted she always opened the Centre at 7am. Phone records show the 

applicant making calls from different locations throughout the day. The applicant 

had recorded false hours of work and had not recorded holidays taken as RDOs in 

the wages book. 

(xxiv) The applicant’s diary notes are inconsistent with the relevant tape recordings,

which were made without the respondent’s or Rosette’s knowledge.

(xxv) The applicant further contradicted her evidence when she claimed to have 

given fee money to Jehad weekly or fortnightly, but then said she kept the money for 

two to three months so as to purchase items and resources for the Centre. 

(xxvi) The applicant did not know her correct start date. At one point it was 2010 and 

she then claimed it was 2007 at Palm Childcare. There were large gaps and breaks in 

her employment which made her ineligible for long service leave. The employer’s 

records show her commencing at Buzzbee on 24 September 2012, not 2009 as 

claimed by her. 








[2017] FWC 543

31

(xxvii) The applicant was never given authorisation to be the Director of the Centre, as 

she claimed. 

(xxviii) The applicant caused damage to the service by demanding Rosette disenroll 

seven children in a letter in her own handwriting on 1 August 2016 and contacting 

Ms Dablan’s sister to pressure her to take her children out of the Centre. 

(xxix) The applicant influenced two staff members to resign who just happened to do 

so in the same period she had resigned. While she denied contacting any staff 

member after 31 July 2016, her phone records disclose contact with four staff after 

this date. 

(xxx) The applicant had not taken over Mona’s role as Nominated Supervisor in 

January 2013, as Mona remained responsible for all three services. 

(xxxi) Despite the applicant denied being ever warned for misconduct, Mr Kassem’s 

statement disclosed the contrary to be true. 

[102] The respondent’s submission also dealt with the applicant’s claim of financial 

difficulties after her resignation and certain other matters relating to her relationship with 

Jehad. As noted by the respondent itself, these matters are not relevant for the purposes of this 

decision. 

[103] Under the heading ‘in Response to applicant’s closing submissions’, the respondent 

largely replicated arguments set out above and I do not repeat them again. Any new or 

expanded responses to the applicant’s submissions are set out below:

(a) No one accused the applicant of theft. The respondent had merely taken precautions to 

protect the Centre. 

(b) The applicant had never been offered a Director position, nor did she conduct the 

duties of a Director. At best, the applicant was an Assistant Director Level 5.3. 

(c) Due to Mr Kassem’s limited English, the lawyer and Mona assisted in writing his 

statement which was dictated over the phone and later signed by him.

(d) There was no attempt by Jehad to avoid giving evidence. He subsequently became ill, 

was hospitalised twice and had medical certificates, if required. 

(e) There was nothing ‘illegal or impossible to have an external manager (Mona) conduct 

‘spot’ visits of the Centre. All full-time staff knew what Mona’s role was after 2013. 

(f) The applicant never applied for maternity leave, nor was she entitled to it in 2009 and 

2012. There were large gaps in the applicant’s employment. 








[2017] FWC 543

32

(g) The applicant’s lawyer submitted details of Jehad’s long history of violent behaviour. 

Why is this the employer’s fault?

(h) The respondent claimed Mr Hanna put confusing and indirect questions to Mr Kassem 

which resulted in him giving misunderstood answers. 

(i) The respondent insisted the applicant had agreed to a ‘cooling off’ period during 

which she would continue to be paid. 

(j) Why would the applicant need to review the tape recordings to establish whether Mr 

Kassem had or had not terminated her employment, if she was so sure she had been?

(k) All of the respondent’s witnesses were calm, supportive and respectful, as distinct to 

the applicant’s aggressive, rude, manipulative and threatening behaviour. It was why 

she was able to pressure the parents to take their children out of the Centre and 

encourage other staff to resign. 

(l) The respondent had not ‘demanded’ information and records on 31 July. It had merely 

asked questions to ensure a smooth and temporary handover of the Centre’s 

operations. It was not a constructive dismissal. It was the applicant who demanded:

(i) her entitlements;

(ii) a termination letter;

(iii) payment for items she had purchased; and

(iv) her Supervisor Number. 

(m)There was no evidence of the applicant performing bookkeeping or accounting duties 

at home, or even being asked to do so. The respondent had an accountant and Jehad 

prepares tax records. 

(n) The applicant was not paid at Level 4.2, but had paid herself at Level 5.3. If the 

applicant believed she was to be paid as the Director, she would have paid herself the 

higher salary. There was no evidence of her ever asking for a pay increase. 

[104] Attached to the respondent’s submissions and described as ‘Summary’, was an Outline 

of Submissions originally prepared and filed by the respondent’s since relieved lawyer, Mr 

Jason Polese. It encapsulates the essence of the respondent’s arguments. It is therefore useful 

to set it out in full as follows:

‘Unfair dismissal application filed on 18th August 2016 (Application). The Applicant 
seeks compensation for: unfair dismissal in the amount of 26 weeks’ pay, 4 weeks’ 
notice and annual leave and long service leave entitlements.








[2017] FWC 543

33

The Applicant contends that she was dismissed, unfairly, without notice and without 
reasonable cause.

The Applicant contends that she was dismissed because her husband was “upset”. 

The respondent rejects these claims and contends that the Applicant was in fact not 
dismissed and left on her own accord, and further, due to facts now known to the
Respondent, would have been entitled to lawfully terminate the Applicant, due to 
misconduct. 

The Applicant contends that she was employed with a related entity to the Respondent 
known as Windtone Pty Ltd, in another child care centre known as Rawson Rd Long 
Day Care Centre. 

The Respondent contends that the Applicant was employed by HK Group at Buzzbee 
Long Day Care Centre from about May 2013 as an authorized/nominated child care 
Supervisor and there was no transfer of employment, as there was no continuation of 
employment.

On or about 31 July 2016, the applicant alleges that she was unfairly dismissed, due to 
a relationship breakdown with her husband, Jehad, the son of the Respondent’s 
Director, Mr Hafez Kassem.

The Respondent contends that the Applicant was asked to take paid leave, until her 
personal issues were resolved but instead resigned from her position.

Entitlements 

It is appropriate to deal with this issue raised by the Applicant, before the unfair 
dismissal matter is addressed.

It is respectfully submitted that notwithstanding the Applicant's right at law to claim 
entitlements, it is not within the Jurisdiction of the Commission in an unfair dismissal 
application, to consider and/ or make orders in relation to the Applicant's annual leave 
or long service leave.

Any evidence before the Commission in this respect should be not be admitted.

Any orders sought in this respect should be dismissed.

THE ALLEGED DISMISSAL

Primarily, the Respondent raises the Jurisdictional question of whether the 
Applicant was in fact dismissed.

The Respondent contends that the Applicant was not dismissed and in fact had 
resigned from her position with the Respondent.








[2017] FWC 543

34

(The) Respondent relies on all statements and the above submission including the 
Applicants (sic) credibility issues.

Section 386 of the Fair Work Act defines the term dismissed as follows:
(1) A person has been dismissed if:

(a) the persons (sic) employment with his or her employer has been 
terminated on the employers (sic) initiative: or

(b) 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.

The Respondent submits that the Applicant was asked to take paid annual leave, in 
order to give her time to resolve personal issues at home with her husband. It was not 
the initiative of the Respondent nor any conduct to force a resignation.

The Respondent contends and maintains that there was no intention to dismiss the 
Applicant Hafez's statement at [14-17 and 35- 381 and when considering the evidence 
of the conduct of the employer and employee, the Respondent attempted to keep the 
Applicant through paid leave. In this respect, the Respondent submits that no dismissal 
was communicated to the Applicant and thus no dismissal took effect; Burns v 
Aboriginal Legal Service of Western Australia (Inc) (AIRCFB, Williams SDP, Acton 
SDP, Gregor C, 21 November 2000) Print T3496 [24].

The Respondent's actions, had no intention or likelihood to cause termination; see: 
Rheitherger (sic) Huxley Marketing Ply Ltd, ABB Engineering Construction Pty Ltd v 
Doumit and O'Meara v Stanley Works Pty Ltd (‘O'Meara’). 

Respectfully, the Respondent has provided evidence of several conversations on 31 
July 2016, 1 August 2016 and 9 August 2016, where the Applicant has either alleged 
that she resigned or stated that she did not want to take paid leave and that she did not 
want to return to the work place.

Further, it was the Applicant herself, who called the NSW Department of Education to 
notify them that she was no longer the nominated supervisor of the Respondent. 

Respectfully, it is submitted that the only evidence, that could possibly persuade the 
Commission, provided by the Applicant in this regard, is an alleged statement at Ms 
Catherine Sirl's affidavit (Applicant's Affidavit) at paragraph [22]. Which is denied by 
the Respondent, and in which the Respondent has provided evidence of contrary 
conversations by Hafez Kassem, Mona Kassem and Rosette Kassem. Including 
statements from current employee Sarah Dablan.

MISCONDUCT

Further or in the alternative. The Respondent respectfully submits that if there is a 
finding that the Applicant was in fact dismissed, the dismissal was lawful and 
reasonable in the circumstances.








[2017] FWC 543

35

It is established that facts justifying dismissal, which existed at the time of the 
dismissal, should be considered, even if the employer was unaware of those facts and 
did not rely on them at the time of dismissal. Shepherd v Felt & Textiles of Australia 
Ltd (1931) 45 CLR 359, 373,377-378.

It is submitted that facts which existed at the time of the dismissal, but came to light 
after the dismissal may:

a) justify the dismissal when it would otherwise be harsh, unjust or 
unreasonable, or
b) render the dismissal harsh, unjust or unreasonable. Australia Meat Holdings 
Pty Ltd v McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & 0 Ports
(AIRCFB, Ross VP, Hamilton DP, Eames C, 8 October 2002) PR923358 [79].

The Respondent contends that the allegations outlined under the heading 
"Misconduct" found in Hafez's statement justifies the dismissal. Inter alia, there are 
allegations of; theft, misuse of Business money, insubordination, fraudulent time 
entries of work hours and misuse of Business money to pay herself amounts which she 
was not entitled to.

In this regard, it is submitted that if it is found that there was a dismissal, it was not 
hard, unjust or unreasonable; it was, lawful and reasonable in the circumstances.

THE APPLICANT'S FINANCIAL HARDSHIP

It is respectfully submitted that the alleged hardship of the Applicant is exaggerated 
and she would not be entitled to the full award of 26 weeks' pay. The Respondent 
relies on the statement of Jehad Kassem in this respect and Paragraph 59 closing 
submission.

ORDERS AND DISPOSITION

The Deputy President would conclude that the matters in the Respondent's evidence 
are preferred.

The Deputy President would conclude that the Applicant was in fact not dismissed 
and therefore not entitled to an unfair dismissal remedy.

Further or in the Alternative, if the Deputy President is inclined to find that there was 
a dismissal in accordance with section 386 of the Fair Work Act, then the Deputy 
President would conclude that the misconduct of the Applicant, would deem the 
dismissal lawful and justified.

The Application should be dismissed with costs.

In the alternative, if the Deputy President is inclined to find in favour of the Applicant, 
the Applicant should not be awarded more than 4 weeks' pay.’ (footnotes omitted) 

CONSIDERATION








[2017] FWC 543

36

The taped conversations

[105] Before considering the substantive issue in this case, I am bound to record a matter, 

about which I have grave concerns. It emerged in the tape recorded conversations tendered in 

evidence, which I listened to, in their entirety, after the decision had been reserved. 

[106] The meeting on 31 July 2016 between the applicant, Mr Kassem and Rosette was 

recorded on a mobile phone and the tape together with the tape recordings of the 

conversations on 1 and 9 August were also tendered in evidence. While not transcribed, the 

tapes were accepted, without objection (save for the respondent’s complaint that the 31 July 

conversation was only part recorded). Accordingly, the tapes form part of the formal record of 

proceedings. 

[107] Having carefully listened to all the tapes, I am profoundly troubled by an exchange 

between the applicant, Rosette and Mona when the applicant was questioned about the fees 

paid by parents for their children’s childcare at the Centre. To avoid doubt, I have had 

transcribed the relevant passage, redacting the names of the children mentioned. It is as 

follows:

Ms Sirl: I’ve got to take my sister off. I’ll do that now. My sister. My sister’s kids will 

be taken out.

Mona: Oh Jan’s kids are here?

Ms Sirl: Yeah, well she doesn’t really come. So she’s. Like her kids are claiming five 

days so. I  already spoke to her obviously, she’s going to take them to another Centre. 

and Errol will definitely leave. Like he’s going to take X now. So.

Mona: But because, legally. 

Rosette: Leave them!

Mona: Legally she needs to confirm with the parent’s.

Rosette: I’ll talk to them.

Mona: I know you’re saying but let her confirm with the parents.

Rosette: Don’t delete any families, I’ll deal with it.

Ms Sirl: Just my sister has to come off. 








[2017] FWC 543

37

Mona: Whoever is going to take over needs to call all their parents to introduce who 

the new person is and confirm before you delete anything.

Ms Sirl: Yeah, yeah, yep.

Mona: Do you know what I mean? Like she can call Jan and say ‘we confirm’ and it 

doesn’t matter. Like whoever wants to come off comes off. 

Sirl: Yeah, yeah. Fair enough.

Mona: So she can call them tomorrow, one by one and tell them the situation. 

Ms Sirl: Ok what we’ll do now, we’ll just take the kids that under my name that we’re 

claiming that doesn’t really come. Do you know what I mean?

Rosette: Who are they? Write their names down so we can keep them and enrol them. 

Write their names down.

Ms Sirl: No you don’t have to get rid of them out of the Centre. What I’m saying is 

the days that they’re scheduled in…

Mona: Don’t, like, don’t delete any.

Ms Sirl: They don’t really come.

Rosette: Ok let me talk to them, who are they?

Ms Sirl: So you don’t want to delete these now?

Rosette: Don’t do nothing, don’t do nothing. Who are they? X, who else? Give me 

their names.

Ms Sirl: Alright. He doesn’t come at all, he’s not really enrolled in the Centre.

Rosette: X.

Sirl: They can’t speak English at all. 

Rosette: Just give me their names and that’s it. 

Sirl: X, X, X, X.

Mona: Write their names properly!

Ms Sirl: X and X, X, X.

Rosette: They’re the ones that don’t come to the service?

Sirl: They come only one or two days but we’re claiming five days.

Mona: Ok we need to make sure that they know that they have to pay or they don’t 

come. 

Rosette: I’ll talk to the parents.

Sirl: No, no, no. It’s not like that. What happens is they don’t really come anyway 

but they only pay a certain amount in cash to me for the days that they really attend. 

But we’re really claiming on five days because they sign in and out.








[2017] FWC 543

38

Mona: Oh but we can’t do that. 

(Everyone speaking over the top of each other)

Rosette: That’s alright, just give me the names and I’ll fix everything up. I’ll fix 

everything up yeah. 

Ms Sirl: X.

Mona: Don’t worry. You won’t have anything to worry about because she’ll say ‘sorry 

we’re the new, you know..’

Ms Sirl: X, X, X and X. 

Rosette: Who’s X?

Ms Sirl: They’re brothers. X, X, X.

Rosette: X:

Ms Sirl: X, X and X. X.

Rosette: Who’s the other one?

Ms Sirl: X. X. X, 

Ms Sirl: X and X. They’re just on there. They’re what’s-her-name’s kids. She’s taken 

them off now. Um. Ashlee’s Kids. Youse are just claiming for them. They don’t come.

Rosette: Who’s Ashlee? Oh yeah.

Ms Sirl: Yeah yeah yeah. 

Rosette: X and X. 

Mona: So they don’t come here?

Ms Sirl: Nah. They don’t attend here at all.

Mona: Where do they go?

Ms Sirl: To another Centre.

Mona: How could you be claiming here?

Ms Sirl: Oh no they don’t go to another Centre, well they were but they were only 

going there two days so we were claiming three days here.

Mona: Ok.

Ms Sirl: Do you know what I mean?

Mona: But they don’t. They’re not coming here at all? And they’re not coming to the 

other Centre either anymore?

Ms Sirl: Um. Oh X, that kid doesn’t really come, that’s her sibling as well. 

Mona: So what happens with these ones? Like, let’s say they come two days here 

and three days elsewhere, do we sign in for them?

Ms Sirl: Yeah of course, a parent signs in and out for them.








[2017] FWC 543

39

Mona: They sign in for the whole week do they?

Ms Sirl: Yeah, yeah.

Mona: Oh.

Ms Sirl: And then what I do at the end of the week. Just say for example me and 

Ashlee are only here on a Monday. We put Sarah and Serene from early start time 

as well and they don’t get paid for it. They just sign in and out.

Mona: Who signs in and out?

Ms Sirl: The staff. So it looks like it’s ratio to children met. Do you know what I 

mean?

Mona: And they don’t?

Ms Sirl: Because this is what Eddy told me to do. He goes, like whatever, how many 

children you have a day. Just say we have 10.

Mona: Yeah.

Ms Sirl: Alright so we’ve got two staff members.

Mona: Yeah.

Ms Sirl: And then just he wants me to sign in all, another 10 kids.

Mona: Yeah.

Ms Sirl: Alright so those parents come and sign in.

Mona: Ok so this is getting complicated. Alright, so what the staff are signing in. 

Obviously they’re not here but they’re still signing in earlier just to cover the ones 

that are signing in. Is that what you’re saying?

Ms Sirl: Yes. Correct.

Mona: Alright.

Ms Sirl: That’s why all of these are like two days only. They attend but they’re all on 

there five days. Cause Eddy is like ‘no, I want to make sure that we claim.’

Mona: because it costs too much really. 

Ms Sirl: Yeah and like all these families get a discount as well. Ok so you’ve got to ask 

them like, exactly how much they’re paying as well. Cause I know but. 

Mona: So all of these parents are on cash?

Ms Sirl: Some of them are but most of them are on Centrelink. But they’re getting a 

CentrePay discount as well. I give them a discount through CentrePay that’s not the 

correct amount.

Rosette: So you don’t have any records at all for what they’re discount is? Cause they 

could be telling me anything.








[2017] FWC 543

40

Ms Sirl: No cause I know them, that’s the thing. Like I know who pays what. 

Rosette: But you don’t have records for it?

Ms Sirl: When you go into here. Alright, you’ll find some things. Hold on that’s not it. 

Ok this is 2016. So most of these parents here are the ones on CentrePay for 2016 or 

the other form you can see

Rosette: The ones on CentrePay, what discount do you give them?

Ms Sirl: Oh look, it depends on how many days we’re claiming for.

Rosette: Ok, so, but you don’t have any records for?

Ms Sirl: Well not really because I know, like how much they pay. That’s the thing. 

Mona: So there’s no like, contract? So they could tell me anything basically? They 

could tell me anything basically. They might tell me ‘nah I pay like $10?’ 

Ms Sirl: No because I record. Because every time CentrePay goes through they pay 

me so I know. Do you know what I mean, like what discount I’ve given. 

Mona: So I don’t know what was the actual amount or less that the actual amount. 

Ms Sirl: Exactly right, that’s what I’m saying. I’d have to be here to tell you one for 

one who pays what when I go through the system. 

Mona: You wouldn’t…

Ms Sirl: This is X’s. Like this is Irene’s discount. That’s how much Nazarene pays a 

discount. Oh that’s old. So these are some of the discounted children on here. That’s 

how much they pay. But because I put the wages, like the thing up. Some of them have 

gone extra now. More money for the Centre. So this is the discount book in here.

Mona: These kids are on here?

Ms Sirl: Some of them are, yeah. It depends which one.

Mona: Which ones are not and can you tell me how much discount you’ve given us to 

they don’t lie to us?

Ms Sirl: It’s going to take a long time.

Rosette: Don’t worry. I’m going to fix. 

Ms Sirl: It’s going to take forever.

Mona: It’s alright, I’m going to fix up. 

Ms Sirl: Because most of them are siblings. And we’ll have to see what CentrePay 

they pay. 

Mona: Oh ok.

Ms Sirl: If you look on this it’s easier. On this, this is how much they usually pay out 

of the CentrePay account. So just find out from them. 








[2017] FWC 543

41

Mona: Alright, where are we up to?

Rosette:: X, X.

Mona: Who’s X?

Rosette: That’s the one you said that. Oh all the way up here.

Ms Sirl: No discount for him . Them two, have you got them two?

Mona: Who’s that?

Ms Sirl: X, this child doesn’t really come here. It’s her sibling. X, X they won’t . 

Rosette: Who are they? 

Ms Sirl: They are Errol’s. But he’s going to remove them 100% if I’m not here.

Rosette: Alright, I’ll talk to him

Ms Sirl: Um. X’s normal, X is normal. That’s my sister’s kids.

Rosette: Ok, ok.

Ms Sirl: X and X. They’re another one.. They’re brother and sister. These ones don’t 

really come either. And she only attends three days per week.

Rosette: And these ones?

Ms Sirl: Yeah they’re not here.

Rosette: OK.

Ms Sirl: They’re not really here. That’s their siblings. So she’s getting a discount, 

based on them two. And X is not really here five days but we’re claiming five days. 

And X.

Rosette: X?

Ms Sirl: Yep as well. So pretty much 80% of the Centre. 90.

Rosette: Alright, I have my work to do, (laughs). Love ya. (My emphasis)

[108] This extract would appear to establish the existence of a regular practice of the Centre 

of management falsely claiming a higher number of children attending the Centre over five 

days, when in reality, there was a much lower number of children, attending over only two or 

three days, or not at all. It would also seem that to corroborate the false number of children 

attendees, the rostered staff cooperated by falsely signing their timesheets for five days , when 

in fact, they were only working two or three days. There may also be an element of parental 

complicity, whether knowingly or unwittingly, by the creation of false records of their 

children’s attendances, which were signed off by parents, potentially in exchange for a 

discount to their childcare fees. Regrettably, the implications of this evidence are in my view, 

very worrying.








[2017] FWC 543

42

[109] It is well known that the Federal Government provides Commonwealth childcare 

subsidies, either direct to parents or to the childcare provider, with parents making up any 

shortfall to an annual maximum limit. It is unclear to me what the preferred method is at 

Buzzbee, but whatever it is, the falsification of childcare numbers, or at the very least, the 

falsification of the employment records of employees, are serious matters, which would likely 

be of interest to the relevant authorities. 

[110] While I do not intend to make any further assumptions, let alone definitive findings of 

what this evidence reveals, it is incumbent on me, in the office I hold, to refer this matter to 

the appropriate Commonwealth/State Authorities. I shall ask the Commission’s General 

Manager to provide this decision to the relevant agencies. 

Statutory provisions and relevant principles

[111] It is to state the obvious that a person cannot be unfairly dismissed if he/she has not 

been dismissed. This notion derives from the well-accepted employment law principle as to 

the legal effect of various examples of terminations of employment which may flow from a 

particular factual matrix. 

[112] The Act provides for a meaning of ‘dismissal’ at s 386 as follows:

SECT 386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person's employment with his or her employer has been terminated 
on the employer's initiative; or

(b) 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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a 
specified period of time, for a specified task, or for the duration of a 
specified season, and the employment has terminated at the end of the 
period, on completion of the task, or at the end of the season; or

(b) the person was an employee:








[2017] FWC 543

43

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, 
for any reason, limited to the duration of the training 
arrangement;

and the employment has terminated at the end of the training 
arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or 
her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the 
demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind 
referred to in paragraph (2)(a) if a substantial purpose of the employment of the person 
under a contract of that kind is, or was at the time of the person's employment, to 
avoid the employer's obligations under this Part.

[113] Further explanation can be found in the Explanatory Memorandum to the Fair Work 

Bill 2008 at paragraphs 1528-1530 as follows:

1528. This clause sets out the circumstances in which a person is taken to be 
dismissed.  A person is dismissed if the person's employment with his or her employer 
was terminated on the employer's initiative. This is intended to capture case law 
relating to the meaning of ‘termination at the initiative of the employer' (see, e.g., 
Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).

1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned 
from their employment but were forced to do so because of conduct, or a course of 
conduct, engaged in by their employer. Conduct includes both an act and a failure to 
act (see the definition in clause 12).

1530. Paragraph 386(1)(b) is intended to reflect the common law concept of 
constructive dismissal, and allow for a finding that an employee was dismissed in the 
following situations:

 where the employee is effectively instructed to resign by the employer in the 
face of a threatened or impending dismissal; or

 where the employee quits their job in response to conduct by the employer 
which gives them no reasonable choice but to resign.








[2017] FWC 543

44

[114] In this case, Mr Hanna argued two alternative propositions in the context of s 386 of 

the Act:

1. That Mr Kassem had terminated the applicant’s employment on 31 July 2016 when he 

said ‘for your own safety it is better if you are not allowed to return to work,’ or

2. That the applicant was forced to resign because of a course of conduct engaged in by 

Mr Kassem, and members of his family, between 31 July and 9 August 2016. 

[115] In Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769, a Full Bench of Fair 

Work Australia (FWA) (as the Commission was then styled), considered s 386 of the Act and 

said at paragraphs 23-24;

[23] It is necessary in the first instance to consider the communications of the 
employer to the employee to determine whether any of these communications 
constitutes an express termination. We have reviewed the various communications 
including the email of 11.19am 13 October 2010, relied on by Mr Barkla and we do 
not believe that any of those communications expressly terminate his employment. We 
reach that conclusion notwithstanding that some of the correspondence may have 
equated Mr Barkla’s application for extended leave without pay as akin to a 
resignation, that the employer clearly brought the secondment to the ‘Supervisor 
Geraldton’ position to an end and directed Mr Barkla to return to his permanent 
position of CSCS Officer based in Perth.. In our view none of the correspondence 
expressly brought the entire employment to an end. This is clear from a review of the 
totality of the correspondence including the clear intention of the parties, as contained 
in the letter of appointment, as to what would occur after completion of the 
secondment and the employer’s statements regarding Mr Barkla reverting to his 
employed position of CSCS Officer once the secondment was ended We find that G4S 
consistently maintained that it was not terminating Mr Barkla’s employment and that 
there is no express statement to the contrary.

[24] It is then necessary to consider whether any action of the employer amounted to 
termination of employment. It should be noted in this case that Mr Barkla did not 
resign from his employment. Rather he alleges that the employer’s conduct amounted 
to dismissal. There is considerable law on whether a resignation is forced by conduct 
of the employer or that the employer’s conduct amounts to a constructive dismissal 
either at common law or within the statutory definitions. In our view this law is 
helpful in the present context because it articulates the nature of employer conduct 
which will bring an employment contract to an end. This is what Mr Barkla has argued 
in this case. In O’Meara v Stanley Works Pty Ltd  a Full Bench of the Australian 
Industrial Relations Commission discussed the relevant case law and outlined the legal 
considerations in the following terms:

“Termination at the initiative of the employer

[19] The circumstances in which a resignation, while apparently a termination 
of employment by the employee, nevertheless constitutes a termination at the 
initiative of the employer, have been considered in a number of cases. A 








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45

prominent authority is the decision of a Full Court of the Federal Court of 
Australia in Mohazab v Dick Smith Electronics Pty Ltd(Mohazab). In that case, 
the employer made a threat that unless the employee resigned the employer 
would ask the police to charge the employee with an offence. The analysis of 
the concept of termination at the initiative of the employer by the Court in that 
case has not always been quoted in full. It is desirable that we do so in this 
case. After referring to dictionary definitions of the term “initiative” and the 
convention giving rise to the statutory provisions, the Full Court said:

“These definitions reflect the ordinary meaning of the word ‘initiative’. 
Viewed as a whole, the Convention is plainly intended to protect 
workers from termination by the employer unless there is a valid reason 
for termination. It addresses the termination of the employment 
relationship by the employer. It accords with the purpose of the 
Convention to treat the expression ‘termination at the initiative of the 
employer’ as a reference to a termination that is brought about by an 
employer and which is not agreed to by the employee. Consistent with 
the ordinary meaning of the expression in the Convention, a 
termination of employment at the initiative of the employer may be 
treated as a termination in which the action of the employer is the 
principal contributing factor which leads to the termination of the 
employment relationship. We proceed on the basis that the termination 
of the employment relationship is what is comprehended by the 
expression ‘termination of employment’: Siagian v Sanel [1994] IRCA 
2; (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, 
situations the act of the employer that terminates the employment 
relationship is not only the act that puts in train the process leading to 
its termination but is, in substance, the entire process. An example 
would be a situation where the employer decided to dismiss an 
employee and did so orally or in writing with immediate effect. Other 
situations may be more complex as exemplified by the circumstances 
considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 
IRCR 143; 57 IR 243 where an employee had given written notice 
purporting to terminate the employment relationship. The notice was 
not reasonable but was accepted by the employer which later refused to 
allow the employee to withdraw the notice. A question arose as to 
whether that was a termination of the employment at the initiative of 
the employer and his Honour held it was. His Honour said at 160-161; 
259:

‘I have already said that Div 3 concerns termination at the initiative of 
the employer. The respondent submits that “initiate” means “to begin, 
commence, enter upon; to introduce, set going, or initiate”: see Shorter 
Oxford English Dictionary. In this matter, it is submitted, it was the 
applicant and not the respondent that initiated the termination by 
writing the letter of 18 May. This, in my opinion, gives the expression 
“termination” in the Act, read in conjunction with Art 3 of the 
Convention which speaks of “termination … at the initiative of the 
employer”, a narrow meaning that was not intended. A principal 
purpose, if not the sole purpose, of Div 3 is to provide an employee 
with a right to seek a remedy in circumstances where the employee did 








[2017] FWC 543

46

not voluntarily leave the employment. An employee may do some act 
which is the first in a chain of events that leads to termination. An 
example would be an employee who engaged in misconduct at work 
which ultimately led to the employer dismissing the employee. 
However, that situation and the present are not situations where the 
termination was at the initiative of the employee. In both instances the 
step or steps that effectively terminated the employment or purported to 
do so were taken by the employer.’

In these proceedings it is unnecessary and undesirable to endeavour to 
formulate an exhaustive description of what is termination at the 
initiative of the employer but plainly an important feature is that the act 
of the employer results directly or consequentially in the termination of 
the employment and the employment relationship is not voluntarily left 
by the employee. That is, had the employer not taken the action it did,
the employee would have remained in the employment relationship. 
This issue was addressed by Wilcox CJ in APESMA v David Graphics 
Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 
1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an 
employee who resigned because ‘he felt he had no other option’. His 
Honour described those circumstances as:

‘… a termination of employment at the instance [of] the employer 
rather than of the employee.’

And at p 5:

‘I agree with the proposition that termination may involve more than 
one action. But I think it is necessary to ask oneself what was the 
critical action, or what were the critical actions, that constituted a 
termination of the employment.’”

[20] Moore J, one of the members of the Full Court in Mohazab, addressed the 
question further in Rheinberger v Huxley Marketing Pty 
Limited (Rheinberger). His Honour said, after referring to extracts 
from Mohazab:

“However it is plain from these passages that it is not sufficient to 
demonstrate that the employee did not voluntarily leave his or her 
employment to establish that there had been a termination of the 
employment at the initiative of the employer. Such a termination must 
result from some action on the part of the employer intended to bring 
the employment to an end and perhaps action which would, on any 
reasonable view, probably have that effect. I leave open the question of 
whether a termination of employment at the initiative of the employer 
requires the employer to intend by its action that the employment will 
conclude. I am prepared to assume, for present purposes, that there can 
be a termination at the initiative of the employer if the cessation of the 
employment relationship is the probable result of the employer's 
conduct.”








[2017] FWC 543

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[21] In this Commission the concepts have been addressed on numerous 
occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty 
Ltd (Pawel) a Full Bench said:

“[13] It is plain that the Full Court in Mohazab considered that an 
important feature in the question of whether termination is at the 
initiative of the employer is whether the act of an employer results 
directly or consequentially in the termination of the employment and 
that the employment relationship is not voluntarily left by the 
employee. However, it is to be noted that the Full Court described it as 
an important feature. It plainly cannot be the only feature. An example 
will serve to illustrate this point. Suppose an employee wants a pay rise 
and makes such a request of his or her employer. If the employer 
declines and the employee, feeling dissatisfied resigns, can the 
resignation be said to be a termination at the initiative of the employer? 
We do not think it can and yet it can be said that the act of the 
employer i.e. refusing the pay rise, has at least consequentially resulted 
in the termination of the employment. This situation may be contrasted 
with the position where an employee is told to resign or he or she will 
be terminated. We think that all of the circumstances and not only the 
act of the employer must be examined. These in our view, will include 
the circumstances giving rise to the termination, the seriousness of the 
issues involved and the respective conduct of the employer and the 
employee. In the instant case the uncontested factual findings are that 
the applicant had for almost the whole of his employment performed 
welding duties; that there was no objective threat to his health and 
safety involved in the requirement that he undertake welding duties so 
long as it was not on a continuous basis and that the welding he was 
required to do was not continuous.”

[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v 
Doumit (ABB Engineering) it was said:

“Often it will only be a narrow line that distinguishes conduct that 
leaves an employee no real choice but to resign employment, from 
conduct that cannot be held to cause a resultant resignation to be a 
termination at the initiative of the employer. But narrow though it be, it 
is important that that line be closely drawn and rigorously observed. 
Otherwise, the remedy against unfair termination of employment at the 
initiative of the employer may be too readily invoked in circumstances 
where it is the discretion of a resigning employee, rather than that of 
the employer, that gives rise to the termination. The remedies provided 
in the Act are directed to the provision of remedies against unlawful 
termination of employment. Where it is the immediate action of the 
employee that causes the employment relationship to cease, it is 
necessary to ensure that the employer’s conduct, said to have been the 
principal contributing factor in the resultant termination of 
employment, is weighed objectively. The employer’s conduct may be 
shown to be a sufficiently operative factor in the resignation for it to be 
tantamount to a reason for dismissal. In such circumstances, a 
resignation may fairly readily be conceived to be a termination at the 








[2017] FWC 543

48

initiative of the employer. The validity of any associated reason for the 
termination by resignation is tested. Where the conduct of the employer 
is ambiguous, and the bearing it has on the decision to resign is based 
largely on the perceptions and subjective response of the employee 
made unilaterally, considerable caution should be exercised in treating 
the resignation as other than voluntary.”

[23] In our view the full statement of reasons in Mohazab which we have set 
out together with the further explanation by Moore J in Rheinberger and the 
decisions of Full Benches of this Commission in Pawel and ABB 
Engineering require that there to be some action on the part of the employer 
which is either intended to bring the employment to an end or has the probable 
result of bringing the employment relationship to an end. It is not simply a 
question of whether “the act of the employer [resulted] directly or 
consequentially in the termination of the employment.” Decisions which adopt 
the shorter formulation of the reasons for decision should be treated with some 
caution as they may not give full weight to the decision in Mohazab. In 
determining whether a termination was at the initiative of the employer an 
objective analysis of the employer’s conduct is required to determine whether 
it was of such a nature that resignation was the probable result or that the 
appellant had no effective or real choice but to resign.” (References omitted)

See also: Josephine Searle v Moly Mines Limited [2008] AIRC 210 and Ryan v ISS Integrated 
Facility Services Pty Ltd [2014] FWCFB 8451.

[116] The Full Bench of the Federal Court of Australia recently traced the history of the 

concept of ‘termination of employment at the initiative of the employer’ beginning with the 

ILO Convention in 1982 and highlighting the well-known case of Mohazab as continuing to 

be ‘good authority’ on the subject. In Mahony v White [2016] FCAFC 160, the Court said at 

paragraphs 19-23:

19. The concept of the termination of employment having been at the “initiative” 
of the employer has its genesis in the Convention Concerning Termination of 
Employment at the Initiative of the Employer adopted by the International Labour 
Organisation (“the Convention”) on 22 June 1982. Legislative effect was given to that 
Convention when the Industrial Relations Act 1988 (Cth) (“the IR Act”) was amended 
by the Industrial Relations Reform Act 1993 (Cth). The Convention then became 
Sched 10 to the IR Act. Articles 3 and 4 of the Convention provided as follows:

Article 3
For the purpose of this Convention the terms termination and termination of 
employment mean termination of employment at the initiative of the 
employer. 
Article 4
The employment of a worker shall not be terminated unless there is a valid 
reason for such termination connected with the capacity or conduct of the 








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49

worker or based on the operational requirements of the undertaking, 
establishment or service.

20. It will be noted that Art 4 was expressed in the passive voice. Absent the terms 
of Art 3, Art 4 would have applied to termination by either party in the employment 
relationship. But, as the title of the Convention made clear, that was not the intent. The 
Convention applied only to a termination at the employer’s initiative, that is to say, to 
a termination which, in Anglo-Australian systems of law, would be described as a 
dismissal.

21. In the provisions of the IR Act which implemented the Convention, the passive 
voice was not used. In every case, a direct legislative prohibition, enforceable by court 
proceedings, was established by use of the formula, “an employer must not terminate 
an employee’s employment” (see ss 170DB, 170DC, 170DE, 170DF and 170DG). 
Nonetheless, it was provided by s 170CB that an expression in the relevant Division of 
Pt VIA of the IR Act had the same meaning as in the Convention.

22. It was in this state of the law that the Full Court of the Industrial Relations 
Court of Australia decided Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 
62 IR 200. There the question was whether the termination of the employment of the 
employee concerned had been at the initiative of the employer. The employee had 
signed a letter of resignation, but that had been done in circumstances where he had 
been given a choice by his employer either to resign or to have the police called in to 
investigate what, according to the employer, was the theft of an item of stock. The Full 
Court held that the employee’s resignation had been at the initiative of the employer 
and had, therefore, been a termination within the meaning of the Convention and the 
legislation. The effect of this judgment was that, notwithstanding the use of the active 
voice in the legislation, a termination that had not been done by the employer might 
nonetheless have been, and in that case it had been, done at the initiative of the 
employer and thus covered by the statutory prohibitions.

23. The Full Court said (62 IR at 205):

These definitions reflect the ordinary meaning of the word “initiative”. 
Viewed as a whole, the Convention is plainly intended to protect 
workers from termination by the employer unless there is a valid reason 
for termination. It addresses the termination of the employment 
relationship by the employer. It accords with the purpose of the 
Convention to treat the expression “termination at the initiative of the 
employer” as a reference to a termination that is brought about by an 
employer and which is not agreed to by the employee. Consistent with 
the ordinary meaning of the expression in the Convention, a 
termination of employment at the initiative of the employer may be 
treated as a termination in which the action of the employer is the 
principal contributing factor which leads to the termination of the 
employment relationship.

And (62 IR at 205-206):
In these proceedings it is unnecessary and undesirable to endeavour to 
formulate an exhaustive description of what is termination at the 








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50

initiative of the employer but plainly an important feature is that the act 
of the employer results directly or consequentially in the termination of 
the employment and the employment relationship is not voluntarily left 
by the employee. That is, had the employer not taken the action it did, 
the employee would have remained in the employment relationship.

23. Although their Honours were concerned, as they had to be, with meanings 
conveyed by the terms of the Convention, the formula “at the initiative of the 
employer” has been retained in the FW Act (albeit not in that precise grammatical 
arrangement). This judgment remains good authority as to the connotation of that 
formula. (my emphasis)

[117] In a recent decision, Commissioner Williams helpfully summarised the principles of 

constructive dismissal. In Sherman v Sunrise Health Service Aboriginal Corporation [2016] 

FWC 8903, the Commissioner said at paragraphs 26-28:

[26] That a person’s forced resignation may be a dismissal is well established, and is 
explicitly identified in s.386(2) of the Act.

[27] The principles of forced resignation, or constructive dismissal, have been 
extensively analysed in many cases, including by the Full Bench of the Fair Work 
Commission (the Commission). Those principles require all of the circumstances of a 
termination to be examined, and not only the actions of the employer. The employers 
conduct must be weighed objectively and arising from that it “may be shown to be a 
sufficiently operative factor in the resignation for it to be tantamount to a reason for 
dismissal”. While there it is the case that an employer is generally able to treat a clear 
and unambiguous resignation as a resignation, there is also a recognition that where a 
resignation is given in the heat of the moment or under extreme pressure, special 
circumstances may arise for further consideration. In such special circumstances an 
employer may be required to allow a reasonable period of time to pass and an 
employer may have a duty to confirm the intention to resign if, during that time, they 
are put on notice that the resignation was not intended. 

[28] Terminations on the initiative of the employer have included those in which an 
act of an employer either directly or consequentially has led to the departure of an 
employee; namely, had the employer not taken the action it did, the employee would 
have remained in the employment relationship. (Footnotes omitted)

[118] The Commissioner then set out a number of excerpts from the leading authorities,

including Mohazab, and concluded as follows: 

● the employer’s conduct must be weighed objectively;
● forced resignation may result from some action on the part of the employer 
intended to bring the employment to an end or an action which would, on any 
reasonable view, probably have that effect;








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● an employer may be found to have constructively dismissed an employee 
notwithstanding that it did not engage in the relevant conduct with the subjective 
intention of forcing the employee to resign;
● while an “important feature” of constructive dismissal, it is not sufficient that “the 
act of the employer results directly or consequentially in the termination of 
employment and the employment relationship is not voluntarily left by the 
employee”

[119] In Nurcombe v Balaclava Pastoral Co Pty Ltd ATF O'Connor-Fifoot Family Trust

[2016] FWC 7454 Commissioner Cambridge was faced with a not dissimilar set of 

circumstances to the present case, in which there were no words said or written, expressly 

dismissing the applicant in that case (in fact, quite to the contrary). However, the 

Commissioner found that the course of conduct engaged in by the employer (including 

demanding the keys to the workplace) evinced an intention that it no longer considered itself 

bound to the employment contract and therefore the applicant was constructively dismissed 

‘at the initiative of the employer.’

[120] The Commissioner then said at paragraphs 63-64:

[63] Consequently, despite whatever words may have been said by Ms Fifoot on 21 
February, the second, unwarranted and unreasonable stand down of the applicant 
when properly construed in the context of the circumstances leading up to that event, 
represented the employer’s repudiation of the fundamental elements of trust and 
confidence that are necessary for the maintenance of the contract of employment. The 
applicant was entitled to treat the (second) stand down as conduct of the employer 
which repudiated any continuation of the employment relationship. These 
circumstances are akin to what is often described as constructive dismissal, although 
there is no formalised resignation provided by the employee.

[64] The position that the applicant found himself in on 21 February could be 
described as a constructive dismissal, where the stated position of the employer 
disingenuously attempted to continue the employment despite its actions to the 
contrary. In a practical sense, the applicant could have verbalised his position as one 
whereby he was entitled to reject the second unwarranted stand down, and treat the 
actions of the employer as dismissal, notwithstanding any confirmed, spoken 
suggestion to the contrary. These were circumstances whereby the dismissal was 
constructed by the actions of the employer, although there may have been no words 
which conveyed dismissal to the employee, and instead communication was made 
which was contrary to the intentions of the action taken.

[121] The Commissioner continued: 








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[65] This aspect of the concept of constructive dismissal which does not necessarily 
manifest as a so-called forced resignation of an employee, is explained by the learned 
authors of the often quoted source book, Macken’s Law of Employment and the 
following passage from that text is instructive:

“Alternatively, the employee may, in certain circumstances, treat herself or 
himself as discharged from further performance of the contract, and leave the 
employment without giving the requisite notice. This course will be justified 
where the conduct of the employer amounts to a repudiation of the contract, 
that is, the employer’s breach or proposed breach is sufficiently serious to 
allow the employee to regard herself or himself as discharged from further
performance of the contract. The term “constructive dismissal” is often used to 
describe this situation.”

[66] There is a considerable amount of Case Law authority on the question of 
constructive dismissal. One case which is often referred to is that of Mohazab v Dick 
Smith Electronics (No.2) (Mohazab) which succinctly summarised the concept of 
constructive dismissal as follows:

“However industrial tribunals and courts have long accepted that an employee 
who resigns from his or her employment can and should be treated as having 
been dismissed by the employer if the dismissal is one where the employee did 
not resign willingly and, in effect, was forced to do so by the conduct of the 
employer.”

[67] In Mohazab, the Full Bench of the Court also referred to another authority in the 
case of Allison v Bega Valley Council  (Allison). The following extracts from the 
Decision in the Allison case is particularly helpful for application in the present 
circumstances:

“Although the term “constructive dismissal” is quite commonly used it can 
deflect attention from the real inquiry. That inquiry should involve an analysis 
of what occurred. Did the employer behave in such a way so as to render the 
employer's conduct the real and effective initiator of the termination of the 
contract of employment and was this so despite on the face of it the employee 
appears to have given his or her resignation?”

and

“In order to undertake the necessary analysis it is necessary to look carefully 
at all the relevant facts. It is necessary to determine whether the actual 
determination was effectively initiated by the employer or by the employee...”

[68] In the present case, a careful analysis of the circumstances has established that it 
was the actions of the employer which operated to bring the employment to an end. 
Consequently, the applicant was dismissed in satisfaction of the terms of subsection 
386 (1) (a) of the Act. That is, the termination of the applicant’s employment occurred 
on the employer’s initiative.’

While an appeal of the Commissioner’s decision was partially upheld (on remedy only); see:

Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe [2017] 








[2017] FWC 543

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FWCFB 429, the Commissioner’s finding of a ‘constructive dismissal’ was not disturbed by 

the Full Bench). 

[122] I turn now to the facts of this case. 

[123] It is undoubtedly correct that Mr Kassem did not, at any point, expressly use direct 

language such as ‘you are dismissed’; ‘you are fired’; ‘leave now and don’t come back’; ‘your 

employment is terminated’ or even ‘you are finished with us.’ Nor did the applicant ever 

receive a letter terminating her employment. Nevertheless, exclusive reliance on these factors 

is not, in my opinion, decisive as to whether the applicant was dismissed. The gist of the 

respondent’s case focused entirely on the fact Mr Kassem did not use direct language to 

dismiss the applicant and that while she had requested a termination letter, it was not provided 

because she had not been dismissed, but had resigned of her own accord. The mere absence of 

a termination letter is not conclusive as to whether an employee has been dismissed. The 

respondent’s reliance on this fact, does not take its jurisdictional objection very far. 

[124] In my opinion, the words used by Mr Kassem, in the context of the the views he held 

at the time and the actions taken by him and others of his direct family, were entirely 

inconsistent with the notion of an employee voluntarily leaving their employment; rather, the 

conduct evinced a clear intention that the respondent no longer wished the applicant to remain 

in employment at the Centre. Let me explain by firstly examining the background to Mr 

Kassem’s comments and the actual words used. 

[125] Mr Kassem believed that the applicant was involved in an affair with another man

because his son had told him so. He claimed the applicant had, in fact, confirmed her extra 

marital affair to him. Of course, the applicant has strenuously denied ever having an affair; let 

alone admitting to doing so. However, whether she had, or had not been so involved, is not 

material to the issue to be determined here. What is relevant is what Mr Kassem and the 

family believed about the affair. Mr Kassem also understood the alleged affair was the basis 

of an earlier breakdown of the marital relationship in 2015. Members of Mr Kassem’s family 

were very unhappy with the applicant and the situation. They believed what their son and 

brother had told them and that he was the person who had been grievously wronged. 

Moreover, Mr Kassem’s evidence was that his first loyalty was to his son. Mr Kassem had 








[2017] FWC 543

54

been told by his son that the applicant intended to steal property from the Centre. It was 

hardly a rosy character portrait Mr Kassem had in mind. 

[126] Mr Kassem’s answer to the untenable workplace situation of having his son and his 

estranged wife working together, was to immediately propose that for her own safety, she not 

come to the Centre until the situation ‘calmed down.’ She would be paid for some 

indeterminate period. Given that the respondent has never paid Ms Sirl anything since 31 July 

2016, this proposal would seem to have a ‘hollow ring’ about it and his explanations are

inconsistent with the evidence. 

[127] Firstly, I do not accept the argument that the respondent was simply waiting for the 

return of a single page entry in the new wages book before calculating her entitlements. 

Putting aside the fact that she returned the book and receipts on 9 August 2016 and was still 

not paid anything, the calculation of her outstanding entitlements had nothing to do with a 

proposition that she would continue to be paid her ordinary salary. It was never paid. Indeed, 

reliance on the documents to calculate entitlements points to an inference that the applicant 

had been dismissed, rather than her employment being ongoing. 

[128] Secondly, if Mr Kassem had believed the applicant was intending to steal property and 

money from the Centre, (and he must have because he changed the locks to ‘safeguard’ the 

business), it makes no sense at all that he would want to continue to employ a person, who he 

believed to be a thief. Moreover, the fact Mr Kassem arranged to have a new lock and chain

immediately put on the Centre’s gate, is entirely consistent with an intention to prevent an 

employee from returning to work on a permanent basis. That his actions were purely based on 

the say so of his son, without him having spoken to the applicant to get her side of the story, is 

an appalling indictment and a breach of her right to natural justice. I would add that the claim 

that Mr Kassem simply found a new lock and chain at the Centre around 6pm on a Sunday is 

frankly, implausible. In my view, it is more likely the new lock had been obtained some time 

earlier in the day, probably in the morning or a few days before, consistent with the 

applicant’s evidence that a parent had told her about the locked gate at midday that day. The 

clear intention was to bar the applicant from entering the premises at any time in the future. 

[129] In a confusing and meandering cross-examination, (as evidenced by the transcript), it 

is apparent Mr Kassem has difficulty expressing himself in English, although he appeared to 








[2017] FWC 543

55

understand most of Mr Hanna’s questions. This observation is meant as no criticism. 

However, the clear and plain language used and detailed concepts he expressed in his written 

statement, appear to me to tell quite a different story. I have little confidence that Mr Kassem 

was the author of his statement. At best, the language and phrasing that is said to be his, could 

not have been his own words. My concern as to the veracity of Mr Kassem’s statement was 

compounded by the curious exchange between Mr Kassem and Mr Hanna as to when he said 

he had read his statement and when he had signed it. It was established that Mr Kassem was 

actually at his farm in Young, NSW on the day it was said he had signed his statement, Friday 

2 December 2016. He had not returned until the next day; see: PN2210-PN2226. I also note 

that his statement was sent to my Chambers by the respondent’s then solicitor at 3.48pm on 2 

December. In addition, Mr Kassem’s oral evidence was often inconsistent with his statement.

Critical conversations were not mentioned in his statement, such as when Mr Kassem claimed

in oral evidence that he had reached an agreement with the applicant about taking paid leave,

at her car, in the car park, prior to meeting her inside the Centre. Ms Sirl flatly rejected this 

claim.

[130] Given I have serious concerns about Mr Kassem’s evidence generally, it must cast

some doubt on whether Mr Kassem was really ‘pulling the strings’ (the decision maker) as to 

what was intended by other members of his family, in respect to the applicant’s ongoing 

employment. He seems to have accepted, without question, his son’s allegations, without ever 

having a discussion with the applicant; notwithstanding, they were said to have previously 

enjoyed a good relationship. Had the situation between husband and wife become so toxic and 

bitter, that Mr Kassem acted entirely on the say so of his family? Were words then suggested 

to him in order to set up a false scenario of the applicant having ongoing employment, when 

the reality was to ensure she was never to return to the Centre? 

[131] In any event, even at his highest, Mr Kassem’s proposed ‘interim’ solution was no 

solution at all. The applicant’s employment was ended until the marital relationship ‘was 

fixed.’ By this point, ‘fixing’ the marriage was most unlikely, given the applicant’s 

uncontested evidence that her ex-husband had physically assaulted her on numerous 

occasions, resulting in two Apprehended Violence Orders, divorced her twice, stolen 

$107,000 from their joint account and accused her of being an unfaithful wife and a thief. Mr 

Kassem’s evidence was that he had said ‘you cannot work here because of your husband. If 

we fix the situation with your husband, the job is available.’ There was not even a hint of 








[2017] FWC 543

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when the applicant might be returning to work; no indication that she or her husband might be 

able to work in one of the other two Centres owned by Mr Kassem and thereby not have any 

direct contact with each other. Mr Kassem claimed he had been treating both parties fairly and 

equally. How was it fair or equal to exclude the applicant from the workplace, without pay,

but apparently take no action against Jehad. I note there was no evidence Jehad had been 

stood down on pay between 31 July and 9 August 2016, or at all. This was a claim first raised 

in final submissions.

[132] In my view, it was reasonable and understandable that the applicant believed that her 

employment had been terminated. I accept her evidence that she had never agreed to Mr 

Kassem’s proposal in the car park before the meeting inside the Centre on 31 July; but even if 

she had, she was entitled to change her view, particularly after the conduct of Mona and 

Rosette during the meeting which followed subsequently. I will come to this conduct shortly. 

[133] In short, I am satisfied that the words acknowledged to have been said by Mr Kassem 

were no more than a ‘smoke screen’ to disguise the respondent’s real intention of ensuring the 

applicant’s termination of employment - one way or another. 

Other indicia of a dismissal

[134] In my assessment, there are a number of other signposts which fortify a finding that 

the applicant was dismissed on 31 July 2016. These include the following:

1. The applicant was under the impression she was to meet with Mr Kassem and Rosette

on 31 July 2016. However, she felt ‘ambushed’ when she found Mona was also there 

and her brother-in-law Fowzi was on the premises (although not at the meeting). 

2. It would appear that the family had been at the Centre for some hours on that Sunday, 

without even knowing the applicant would agree to meeting with Mr Kassem later that 

day. It begs the question what were they all doing there on a Sunday? While it is not 

entirely clear from the evidence, it is reasonably open to conclude that the family was 

organising the ongoing running of the Centre and coming to grips with the duties and 

functions performed by the applicant, so Rosette could take over, as the applicant 

would not be returning to work (including by changing the lock on the gate). 








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3. In the presence of Mr Kassem, the applicant was subjected to a barrage of questions 

and demands as to the whereabouts of documents, files, email passwords, staff details 

and rostering, tax records etc; in short, every aspect of her management of the Centre. 

This was not the behaviour of an employer who is simply ensuring a temporary and 

convivial handover of information to the person who would be running the Centre, 

while the applicant was on leave. It has all the hallmarks of a hostile and unpleasant 

interrogation to seek information from a person who would no longer be employed, 

particularly given the applicant was inquiring as to her entitlements and a termination 

letter and receiving spurious reasons as to why they would not be provided. 

4. Notwithstanding the respondent asserts the applicant was on paid leave, the applicant 

attended the Centre the next day and insisted on a termination letter and her 

entitlements. Again, Rosette obfuscated. She did not deny the applicant had been 

dismissed. Indeed, she agreed to prepare a termination letter. Mr Kassem’s evidence 

was critical of the applicant for turning up at the Centre with a parent, without an 

appointment. While it may have been unwise to have a parent as a support person (she 

was perfectly entitled to, given the circumstances) the question remains – why would 

an ongoing employee need an appointment to turn up at their workplace, unless they 

were no longer employed?

[135] In a curious juxtaposition to its primary ‘no dismissal’ argument, the respondent has 

claimed that in any event, the applicant was guilty of serious misconduct. Mr Kassem’s 

statement even had a heading of ‘Misconduct.’ In my view, this recreation of events and the 

reliance on the evidence of hostile family members and existing employees (whose loyalties 

were obvious) was a hopelessly botched, ex post facto, mudslinging exercise, with no serious 

evidence to support the allegations. It was designed to impugn the applicant and buttress an 

otherwise weak jurisdictional objection to the application. This is putting aside the credit 

issues with the evidence of Mr Kassem and Rosette’s repeated avoidance of answering 

questions with ‘no comment.’ 

[136] While it is not strictly necessary for the purposes of this phase of the proceedings to 

make findings as to the allegations of misconduct against the applicant, these matters were 

extensively canvassed in the evidence provided by the respondent. That being the case, it is 

appropriate I deal with these allegations, at least provisionally, at this juncture. 








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[137] Mr Kassem had alleged Ms Sirl had withheld $1000 of cash from parent fees. The 

respondent was keen to stress that no one ever accused the applicant of theft. Yet, Mr Kassem 

had accepted his son’s say so on 31 July 2016, that the applicant intended to steal money and 

property from the Centre. Mr Kassem also had an independent belief that the applicant would 

attempt to conceal documents. While the words ‘theft’ or ‘stealing’ were not used, I think the 

inference is pellucidly clear. The amount retained by the applicant in an envelope was actually 

$700. It was the amount the parents had paid that week, which she said Jehad had failed to 

collect. The applicant openly acknowledged on 31 July that she had the $700 which belonged 

to the Centre. It was later handed over to the respondent. Collecting cash from parents was a 

common practice for staff at the Centre, including the current Director, Ms Dablan. In 

hindsight, while it may have been wiser to have handed the cash over immediately, the matter

was raised and acknowledged at the earliest opportunity (31 July 2016). I accept the 

applicant’s explanation for the delay in returning the cash. The fact Ms Sirl made no secret of

retaining the money and that it belonged to the respondent, is not indicative of an employee

intending to steal from their employer. 

[138] It was further alleged that the applicant had purchased items for the Centre, without 

authority. Apart from the fact that it was common practice for the applicant to do so, and she 

had never been challenged about it, she kept receipts for all the purchases. The applicant made 

no secret of what she was doing, as Ms Dablan acknowledged that she knew she was going to 

Bunnings because Ms Sirl had told her so. There was no evidence that Ms Sirl had ever 

misappropriated cash or credit card usage for her own benefit. 

[139] It was also alleged that the applicant had withheld time and wages records and receipts 

from the respondent. The applicant explained that she had one page of a new wages book (for 

the new financial year 2016-17) and receipts for all of her purchases from the Centre. These 

were handed over. I accept the applicant’s explanation for not doing so earlier, although in 

hindsight, it would have been wiser to have done so. 

[140] It was further claimed that shortly after 31 July 2016, the applicant had encouraged 

staff to leave the Centre and had advised parents to remove their children from the Centre. In 

this respect, the respondent relied on the evidence of Ms Dablan. Ms Dablan of course, is the

person who on 5 August 2016, described herself as the new Director of Buzzbee in a Snapchat 

post. I find her explanation of doing so as a ‘joke’ or just ‘showing off’ as unpersuasive.








[2017] FWC 543

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During her evidence, Ms Dablan was directed to answer questions, when she refused to do so. 

Her answers in cross-examination were generally evasive and self-serving. She was not a 

witness of credit.

[141] Further, Ms Dablan gave evidence that the applicant had contacted her sister and other 

parents to encourage them to take their children out of the Centre. This evidence was hearsay. 

There was no direct evidence from any parent that the applicant had done so. Ms Dablan also 

gave hearsay evidence concerning an allegation that the applicant had encouraged Ashlee to 

resign and she now regretted it. She also claimed the applicant told her she was a ‘dog’ for not 

resigning. Given my doubts as to the reliability of Ms Dablan‘s evidence, I give no weight to 

this evidence. 

[142] In addition, in her statement, Rosette said that after the applicant had left the Centre, 

she had heard of ‘many things’ about staff being threatened by her and that she had also 

contacted parents to ‘degrade’ (sic) the Centre. Again, there was no direct evidence to 

corroborate these claims.

[143] As to the allegations of poor performance issues in 2013, the respondent relied on a 

document setting out an administrative oversight by the applicant at the time. Even accepting 

this was a performance issue raised with the applicant, it was three years ago; far too stale to 

be of any probative value; let alone serve as a ground for dismissing her. There was no 

evidence of any other performance issues before, or after this time. Relying on very stale 

performance issues, which must have been satisfactorily addressed at the time, as evidence of

the applicant’s misconduct was, in my view wrong, vindictive and little more than an

afterthought. 

[144] More telling than this, is that there was not a scintilla of evidence of any warnings, 

counsellings or disciplinary action or indeed, any communication to the applicant in which 

she was directed to change any of the management and accounting practices she had adopted,

or exercised on Mr Kassem’s behalf throughout her employment. 

[145] For all the above reasons, and in accordance with the ratio in O’Meara and other 

decided cases, I am satisfied that the actions of the respondent had the intention of bringing 

the employment to an end, or at the very least, had the probable result of bringing the 








[2017] FWC 543

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employment relationship to an end. Accordingly, the respondent’s jurisdictional objection is 

dismissed. 

Further proceedings

[146] Both parties adduced additional evidence and put submissions as to whether the 

applicant’s dismissal was unfair and what remedy was appropriate. Applications for costs 

were also raised. While the evidence and material presently before the Commission is 

sufficient for the Commission to have provisional views as to:

(a) the correct Award classification of the applicant;

(b) whether the Small Business Fair Dismissal Code was complied with;

(c) whether her dismissal on 31 July 2016 was ‘harsh, unreasonable or unjust’; and if so:

(d) what remedy should be awarded,

I intend to invite the parties to file any further evidence and/or submissions, particularly 

addressing the statutory provisions under ss 387, 388 and 392 of the Act. An application for 

costs is premature at this point, and will be considered (if filed) when the substantive issues 

are finally determined. 

Directions 

[147] I direct that: 

(1) The applicant file and serve any further evidence/submissions by COB Tuesday 14 

March 2017.

(2) The respondent file and serve any further evidence/submissions in reply by COB 

Tuesday 28 March 2017. 

[148] Depending on the nature of the material filed, the Commission will consider whether a 

further hearing is required or will do so at the request of either party. Notwithstanding the 

matter is further programmed, the parties are encouraged to explore whether settlement of the 

applicant’s claims is possible in light of my reasons for decision set out above. 








[2017] FWC 543

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DEPUTY PRESIDENT

Appearances:

Mr M Hanna, Solicitor for the applicant.

Ms M Kassem, for the respondent.

Hearing details:

2017.

December.

12 and 13.

Sydney.

Final written submissions:

For the applicant, 6 January 2017.

For the respondent, 27 January 2017.

Printed by authority of the Commonwealth Government Printer

Price code J, PR589706


ORK WORK COMMISSION FAIR THE SEAL OF

Cases cited by this decision: