1
Fair Work Act 2009
s.394—Unfair dismissal
Robert Bednarski
v
Summit Coatings Pty Ltd
(U2022/12083)
COMMISSIONER MCKENNA SYDNEY, 9 JUNE 2023
Application for an unfair dismissal remedy
[1] Robert Bednarski (“applicant”) has made an application, pursuant to s.394 of the Fair
Work Act 2009 (“Act”), in which he seeks an unfair dismissal remedy in relation to his
termination of employment by Summit Coatings Pty Ltd (“respondent”).
Preliminary matters
[2] As to the initial matters to be considered, as set out in s.396 of the Act: the application
was made within time; the applicant is a person who was protected from unfair dismissal; and
the termination of employment did not involve a genuine redundancy. The respondent is a small
business, with the result that consideration of the Small Business Fair Dismissal Code (“Code”)
arises. Moreover, the respondent has raised an objection to the application on the basis that the
dismissal was Code-compliant – which will be decided, as required by the Act, as an initial
matter.
Background
[3] The respondent is a small business that operates a professional painting business
specialising in strata, commercial and residential painting. The applicant was initially employed
as a full-time painter in February 2014. At the time of the dismissal on 30 November 2022, the
applicant was employed as a foreman as he had been promoted some years earlier to that role.
The evidence in the respondent’s case was that the respondent had eight employees at the time
the applicant was dismissed (and five regular contractors). Ms Cornelia “Conny” Ottowa is the
respondent’s Business Manager and Mr Robin Ottowa is the respondent’s sole director. The
Ottowas are married to each other. Unless otherwise indicated in the decision, I will refer to
actions, decision-making, concerns, and the like, by Ms Ottowa and/or Mr Ottowa collectively
as those of the respondent - albeit it was Ms Ottowa who was more directly involved in matters
concerning the applicant (with Mr Ottowa’s evidence being, for example, that he was
“generally aware” of the applicant’s decline in performance and communication issues).
[2023] FWC 1288
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 1288
2
[4] While there was a good working relationship between the applicant and the respondent
over many years, the respondent began to develop concerns about the applicant around 2019,
when there was a personal circumstance which may have been having an impact on the
applicant’s work. Then, around the time of the COVID-19 pandemic, there were intermittent
shut-downs and JobKeeper payments. From 19 July to 7 September 2021, the applicant took a
period of personal leave – explaining to the respondent that he needed the time off work because
of his mental health. The respondent hoped that the applicant could return to work and be a
productive member of the team again. Ms Ottowa described matters in the following way:
“28. In around October 2021, Robert was scheduled to work a job in Annandale, NSW,
which was close to his home. From this time, Robert stopped coming into the office and
his communication really dropped. I also noticed that Robert’s performance and
behaviour started to decline. Specifically, his communication and attendance became
very poor. I received reports from other workers that Robert was not attending the job
sites as required and was frequently absent. It was very difficult for us to monitor
Robert’s attendance and performance as we were only relying on the App to see if he
was in attendance, but that only meant his phone was on site. We had reports of him
sleeping in his car from co-workers and leaving the site, but leaving the phone behind. I
believed that he was very unreliable at this time.
29. On 27 January 2022, I emailed Robert a letter of concern regarding issues concerning
his employment… . In particular, I was concerned about Robert’s attendance,
performance, quality of his work, his communication towards his co-workers and the
Company’s employees (including myself).
30. After our Letter of Concern, Robert’s performance and communication improved
somewhat. Though the improvement was short-lived.”
[5] The respondent initially effectively let matters of concern pass, but was later to take
more formal steps – including with the assistance of representatives from a firm named
Employsure Pty Ltd t/as Employsure (“Employsure”), which the respondent engages to help
carry out the employment functions relating to the business because the respondent is too small
to employ someone to carry out these functions. In the end, and after a number of intervening
developments, including with the involvement of representatives from Employsure in dealing
with disciplinary-related processes such as conducting meetings, the respondent dismissed the
applicant on 30 November 2022. The dismissal was effected with a payment in lieu of notice.
[6] By way of a short procedural background to the proceedings before the Commission in
relation to the application, it least appeared that the matter had resolved at the pre-hearing
conference and/or directions proceeding that was listed before me on 14 February 2023 – but
as the applicant was concerned, among other matters, about preserving rights to pursue other
avenues in relation to his period of employment with the respondent, that settlement did not
come to fruition. It is unnecessary to detail all the procedural matters in the ensuing
Commission-related chronology associated with the application, other than to note two matters:
(a) I took steps to cause information to be provided to the applicant so that he might seek
assistance from the Commission’s Workplace Advice Service, a service by which eligible
applicants/respondents can obtain free legal advice - including seeking advice on the
respondent’s further offer to settle the matter on the basis that there would be a carve-out for
[2023] FWC 1288
3
the applicant to pursue alleged underpayments etc; and (b) the initial hearing date that was
scheduled for 18 April 2023 was adjourned to a later date, over the objection of the respondent,
due to the applicant’s submissions that day (and my observation of his demeanour in such
respects) about, in effect, being medically incapable of proceeding due to matters including the
effect of various medications he was taking.
[7] In the rescheduled hearing which took place on 2 May 2023, the applicant appeared on
his own behalf (and was the only witness in his own case) and the respondent was represented
by Ms J Pescud, solicitor, of Employsure Law Pty Ltd (as distinct from the similarly-named
Employsure Pty Ltd t/as Employsure). The evidence in the case was received from the
following witnesses and was the subject of cross-examination:
• the applicant;
• Mrs Ottowa;
• Mr Ottowa;
• Kirsty Muir, Face2 Face Lead Field Consultant with Employsure;
• Simon Gray, Face2 Face Consultant with Employsure;
• David Torres, sub-contractor/sole trader, who performed work at a site or sites at
which the applicant also worked (relevantly, a Newport site in November 2022); and
• Cathryn Hargreaves, (formerly) a Face2 Face Consultant with Employsure.
[8] While the applicant put on detailed materials in support of his application for an unfair
dismissal remedy, in some ways, aspects of relevant matters concerning his case about the
dismissal being unfair were encapsulated in the Form F2 initiating process. In response to
Question 3.2 in the Form F2 (which asks, “Why was the dismissal unfair?”), the applicant wrote
as follows (as written; uppercase in original):
“[ ] 22nd OF NOVEMBER [2022] RECIEVED EMAIL FROM EMPLOYER WITH
ALLEGATIONS TOWARD ME, THIS WAS SENT WITHOUT ANY GROUNDS 3
TIMES PRIOR TO TERMINATION (STILL THE EMPLOYER NEVER ALLOWED
FOR ANY PLATFORM OF MEDIATION)
[ ] I WAS THEN SUSPENDED (STOOD DOWN) FORMALLY (EMAIL) 28TH
NOVEMBER [2022]
[ ] DURING THIS PERIOD MY WAGES WERE COMPROMISED AND I WAS NOT
GIVEN ANY FURTHER INFORMATION TO ENTITLEMENTS RENDERING ME
FINANCIALLY VULNERABLE UNTIL TODAY.
[ ] HOWEVER WHEN I WAS INVITED TO MEDIATION WITH INTENTION TO
DISCUSS, MY EMPLOYER WAS NOT PRESENT, NO EVIDENCE WAS
PROVIDED TO ME AND THE MEDIATION INVITATION WAS WRITTEN AS
"SERIOUS MISCONDUCT" WITH A HR REP ENGAGED BY THE EMPLOYER IN
AN ATTEMPT TO INCRIMINATE ME WITH QUESTIONS POSED TO ME AS
FACT OF MATTER, HOWEVER WERE HEARSAY AND UNTRUE. (THIS
MEETING HAS BEEN DOCUMENTED AND CAN BE PROVIDED UPON THE
COMMISSIONERS REQUEST.)
[2023] FWC 1288
4
[ ] WITH THESE ALLEGATIONS THE EMPLOYER FAILED TO PROVIDE ANY
FORM OF PERFORMANCE IMPROVEMENT OR UNDERSTANDING OF WHAT
TOOK PLACE. STIPPED ME OF MY VOICE THEN ABRUPTLY DISMISSED ME
ON UNSUBSTANTIATED BUT ALSO UNMEDIATED GROUNDS.
[ ] THE EMPLOYER NEVER PROVIDED FACTUAL EVIDENCE, AND FAILED
TO KEEP MY HEALTH AND SAFETY IN MIND ALL OF WHICH TOOK PLACE
SIMULTANEOUSLY WITH A PERSONAL RELATIONSHIP BREAKDOWN,
MOVING HOMES WHILE ENDURING A MENTAL ILLNESS, OF WHICH TIME
MY THEN EMPLOYER CONNY OTTAWA WAS VERY WELL AWARE.
[ ] I ASKED FOR THE EVIDENCE OF THE EVENTS THAT ARE ALLEGED AND
THE HR REPRESENTATIVE THEN DECIDED TO TERMINATE THE MEETING
ON GROUNDS THAT IT WOULD BE RESCHEDULED DUE TO THE LACK OF
FACT TO THE MATTER. (DOCUMENTED UPON COMMISSIONERS REQUEST)
[ ] WITHIN 1 HOUR I WAS SENT AN EMAIL OF TERMINATION BY MY
EMPLOYER (CONNY OTTOWA) WHO WAS NOT PRESENT IN THE
MEETINGS.”
[9] The applicant filed and served materials including a statement, together with other
things such as the transcript of a meeting from a recording that was not authorised. Among
matters addressed in the applicant’s statement were that his “statements made in a private
email” to Ms Ottowa in no way damaged the reputation of the company, so one of the dismissal
allegations “was unproven”. The applicant addressed his absence from work on a particular
day, and considered that particular absence had been resolved through a negotiated adjustment
to hours – with the result that also “was unproven”. In addressing the matters concerning email
communications, the applicant considered that he was “being ‘fitted up’ using any excuse
available to be dismissed”; and it was “ridiculous” that private communications to Ms Ottowa
were considered to be in breach of his employment contract and/or damaging to the reputation
or operation of the company. In particular, the applicant’s position was that the reasons given
for his dismissal at the time of the workplace performance meetings in late-2022 “have now
suddenly been substituted by wholly different objections and accusations” which were not
raised at the time and, hence, the applicant did not have the opportunity to defend himself,
which was unconscionable conduct by the respondent and its Employsure representatives. The
applicant’s concluding remarks were:
“What is clear is that it amounts to a capitulation by Summit regarding each of the
baseless grounds provided at first instance to justify its case against me during 2022, and
upon which I was unjustly dismissed. It also proves my point – Summit had an
unsupported case regarding the first instance allegations of non-performance, and by
their lack of evidence, still does.”
[10] The respondent also put on detailed materials in opposing the applicant’s application for
an unfair dismissal remedy. Again, in some ways, aspects of relevant matters concerning the
respondent’s case were also encapsulated in the respondent’s Form F3 employer response. The
Form F3 noted its Code-related objection to the application and, in my much-abbreviated form,
set out matters including the following. The respondent wrote in the Form F3 that the applicant
[2023] FWC 1288
5
persistently performed below the standard expected in recent years, which was particularly
disappointing given the applicant had been a successful and reliable foreman for many years.
As a result, the applicant was informally and formally warned on numerous occasions regarding
his performance, particularly in respect of his communication with others, his attitude, his
commitment, his performance and his quality of work. The following matters were then set out
in the Form F31:
• On 27 January 2022, the respondent issued to the applicant a letter of concern
regarding his: attendance; painting performance in respect of quality of work and time
taken to complete jobs; and communication with co-workers, including rudeness.
• On 21 June 2022, the respondent issued to the applicant a letter of expectation
regarding the respondent’s expectation in relation to taking personal leave, work
standards and attendance. The respondent considered that the applicant’s performance
and adherence to policies and procedures was lacking in all three areas.
• On 15 July 2022, the respondent issued a further letter of concern regarding the
applicant’s failure to follow company policies and procedures in relation providing
appropriate notice of his intention to leave the workplace. The applicant had left site
without warning or authorisation to take care of his personal motor vehicle.
• On 9 September 2022, the respondent sent an email to the applicant regarding his lack
of communication with the business and requesting that it improve. Specifically, the
respondent requested that the applicant communicate better regarding start and finish
times, job run times, job delays and weather impacts.
• In early October 2022, the respondent became aware that the applicant had exhibited
inappropriate and disrespectful behaviour in the workplace, particularly engaging with
his manager in a rude and inappropriate manner. Further, the applicant had been absent
without authorisation on 29 September 2022. The respondent wrote to the Applicant
regarding the allegations on 20 October 2022.
• On 24 October 2022, the respondent then conducted a disciplinary meeting in relation
to the allegations. Following the meeting, the respondent determined that the
allegations were substantiated and, as result, the applicant was issued with a first
written warning on 25 October 2022.
• On 25 October 2022, the respondent also sent an email to the applicant reminding him
of his working hours, including start/finish times and break times. The respondent was
aware that the applicant was not correctly reporting his start and finish times and was
persistently absent from site and took extended lunch breaks.
• In late-October 2022, the respondent became aware that the applicant had exhibited
further inappropriate and disrespectful behaviour in the workplace, particularly
engaging with his manager in a rude and inappropriate manner. The respondent wrote
to the applicant regarding the allegations on 2 November 2022.
[2023] FWC 1288
6
• On 9 November 2022, the respondent conducted a disciplinary meeting in relation to
the allegations. Following the meeting, the respondent determined that the allegations
were substantiated and, as a result, the applicant was issued with a final written
warning on 9 November 2022 . The Applicant was advised that any further misconduct
could result in further disciplinary action, including termination of his employment.
[11] Against the background of the foregoing matters, the following developments then
occurred. In November 2022, the respondent became aware of further allegations that the
applicant had engaged in “deceptive and dishonest” behaviour relating to his working hours, in
that he had incorrectly reported his working hours. It was alleged that the applicant had asked
a sub-contractor colleague, Mr Torres, not to wait for him to attend site and that the applicant
did not attend site on 21 November 2022. Further allegations arose concerning disparaging
comments (allegedly) made by the applicant about the respondent to other workers.
[12] The respondent considered that the applicant’s failure to attend work, deceptive conduct
in misreporting his hours, and his disparaging comments: had the ability to affect, and did affect,
the respondent’s reputation, visibility and profitability; amounted to a breach of the applicant’s
obligations under the contract of employment; and amounted to persistent misconduct given
the prior warnings and letters of concern issued to the applicant.
[13] The respondent referred to what it characterised as “Fair Process”, in describing that a
meeting was convened for 23 November 2022 concerning the most recent round of allegations.
As to that:
• The respondent invited the applicant to attend a meeting concerning the most recent
allegations on 23 November 2022.
• On 28 November 2022, the applicant was suspended with pay pending the outcome of
the disciplinary process.
• A disciplinary meeting was held on 30 November 2022. The applicant was given the
opportunity to bring a support person to the meeting.
• At the meeting, the applicant denied the allegations and requested further evidence of
the most recent allegations.
[14] The respondent determined that, in all the circumstances, it was appropriate to terminate
the applicant’s employment for persistent misconduct, as was communicated to the applicant/
confirmed in writing on 30 November 2022.
[15] Ms Ottowa set out a closely-detailed chronology of matters preceding the dismissal to
the date of the dismissal at paragraphs 31-67 of her statement of evidence, together with
supporting documents. As noted earlier, evidence was also given by various Employsure
representatives and Mr Torres. The respondent’s outline of submissions that was filed pursuant
to the directions contended that “By late 2022, the Applicant’s performance, communication
and demeanour had deteriorated to such an extent that the working relationship was no longer
tenable” notwithstanding an employment relationship which “had been historically
harmonious”.
[2023] FWC 1288
7
The Code
[16] The Code provides as follows:
“The Code
Summary Dismissal
…
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or
she is at risk of being dismissed. The reason must be a valid reason based on the
employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks
being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond
to the warning and give the employee a reasonable chance to rectify the problem, having
regard to the employee’s response. Rectifying the problem might involve the employer
providing additional training and ensuring the employee knows the employer’s job
expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the
employee can have another person present to assist. However, the other person cannot
be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the
Code if the employee makes a claim for unfair dismissal to Fair Work Australia,
including evidence that a warning has been given (except in cases of summary
dismissal). Evidence may include a completed checklist, copies of written warning(s),
a statement of termination or signed witness statements.”
[17] Given the respondent is a small business employer and the dismissal was effected with
a payment in lieu of notice, the “Other dismissal” provisions of the Code are relevant.
Code-related considerations in this case
[18] Given that the respondent contends the dismissal was Code-compliant, I turn to an
overview of its case on the objection in such respects – which is drawn from its outline of
closing submissions. The respondent submitted that it had not only met but exceeded the
requirements of the Code relating to “Other dismissals”, in “navigating a confusing and
unsettled area of law”.
[2023] FWC 1288
8
[19] The respondent advanced its submissions by reference to the decision of Asbury DP (as
she then was) in Brittain v Teewah Power Co [2021] FWC 5451 (“Brittain”). That decision
contains the following passages (references not reproduced):
“[63] The requirements in the Code that there be a valid reason for dismissal and that the
employee is informed of that reason before dismissal also imply that any response
provided by the employee is required to be considered by the employer before deciding
to dismiss the employee. Where an employer cannot provide evidence that the response
was considered, there may be difficulty in establishing the validity of a reason for
dismissal particularly where the response provides an explanation for the conduct or
capacity which led to the dismissal. This is also consistent with the provisions of the
Code in relation to warnings which state that any response to a warning made by the
employee should be a matter to which the employer has regard.
[64] I proceed on the basis that the provisions of the Code relating to “Other Dismissal”
require that:
1. Before dismissing an employee for reasons of conduct or capacity (other than
those justifying summary dismissal) the employer must give the employee a
reason why he or she is at risk of being dismissed.
2. The reason must be a valid reason (in the sense that it is sound, defensible and
well founded and justifies dismissal) based on the employee’s conduct or
capacity.
3. Conduct includes an omission and capacity is the employee’s ability to do the
job as required by the employer and also includes the employee’s ability to do
the work he or she was employed to do.
4. The employer must give the employee an opportunity to respond to the reason
for dismissal before dismissing the employee.
5. The requirement that there be a valid reason for dismissal means that some
consideration should be given to the response the employee provides. This will
generally be required when the Commission is assessing whether the reason for
dismissal was valid.
6. The employee must have been warned that he or she is at risk of being
dismissed either for similar conduct or capacity issues or that the issue that is the
subject of the warning has generally placed the employee’s employment at risk
and that any repetition or further conduct or capacity issues will result in
dismissal.
7. If the employee has previously engaged in conduct that has placed his or her
employment at risk and has been warned in relation to it there is no requirement
that a further warning be given and it will be sufficient if the employee is notified
that the employer believes that the same conduct or further conduct that places
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc5451.htm
[2023] FWC 1288
9
the employee’s employment at risk has occurred and gives the employee an
opportunity to respond before dismissing the employee.
8. The employee must have been given a reasonable opportunity to improve his
or her performance prior to the dismissal being effected which may include the
employer providing additional training and ensuring that the employee knows
the employer’s job expectations.
9. An employee may request to have another person present to assist in
discussions in circumstances where dismissal is possible provided that person is
not a lawyer acting in a professional capacity. The employer is not required to
offer a support person.
[65] If a dismissal was consistent with the Code then the dismissal is not unfair and does
not fall to be considered against the criteria in s. 387 of the Act. If the Commission is
not satisfied that the dismissal was consistent with the Code, the Commission must then
consider whether the dismissal was unfair because it was harsh, unjust or unreasonable
on the basis of the criteria in s.387 of the Act …”.
[20] The respondent made reference in its closing submissions to the descriptions of the
operation of the Code as set out in Brittain at [64], referring to those matters as “Checklist”
items numbered 1-9. To avoid doubt, the references to Checklist items in the respondent’s
submissions are not references to the checklist questions in the Small Business Fair Dismissal
Code Checklist tool that is associated with the Code. Rather, what the respondent described as
Checklist items replicated the matters or descriptions set out in Brittain.
[21] While I will return later in the decision to the respondent’s submissions concerning the
operation of the Code and the evidence in the case, I should note the following. Among other
documents, the applicant provided a statutory declaration in support of his case in which he
said, for example, that the certain impugned emailed comments to Ms Ottowa (“Conny sky is
the limit for your greednes [sic]” and “You are also highly arrogant and you don’t respect
people”) had, for example, been taken “completely out of context” in circumstances where there
had been a payments issue and the comments had been made out of “frustration” rather than
being said or meant in an aggressive or disrespectful way. The applicant’s closing remarks in
the statutory declaration emphasised his long period of employment with the company as a
trusted employee; and that he had not been given “a real and fair opportunity to improve our
working relationship”, for example, by way of a performance improvement plan.
[22] The applicant’s oral closing submissions were (at PN1235):
“… I don’t have too much to say, basically maybe that I made a mistake. My boss was
right, employees have no right in Australia2. That’s it. Thank you very much.”
[23] Moreover, when asked by me whether there was anything that he wanted to say in reply
to the respondent’s closing submissions, the applicant indicated (at PN1267) that there was
nothing he wanted to say in reply.
[2023] FWC 1288
10
[24] It is apposite to note that, on 4 May 2023, the applicant filed and served a further written
submission attaching a photograph of himself. In deference to the fact the applicant was self-
representing, I have considered the applicant’s further submission for the purposes of this
decision even though it was filed and served after the decision was already reserved. Due to its
brevity, the submission made by the applicant is reproduced in full (as written):
“Dear Associate.
Although Commissioner was asking me for final words and im thankful for that after
the trial i couldn't say anything.
The reason for that was that i was really angry on myself due to be unable say what i
want, too many new challenges in once.
I don’t really have much negative thoughts about the respondent I already past most of
this and definitely not on her lawyers in the end of the day it's their job I get it.
However, need to clarify something,
This dismissal was first dismissal in my whole life since i started work as a adult men,
in my country I was working only in one company 13 years .
Not goanna say unfair, because its too mild word and I'm never pompously rude, I might
be sarcastic but not rude unless I don’t fully understand meaning of used by me words.
Communication between me and respondent.
I didn’t receive even one email before she fire me where Conny Ottawa directly respond
to me.
That I’m offending her or her husband,
touching her private life,
commenting who is the boss in her relationship with Robbin [Ottowa]
I also don’t complain behind boss back that I don’t earn in their company enough money
i asking him if he has time to talk and I’m telling him about this.
I’m straight forward person,
When is a problem or I’m not ok with something I deal with this almost instantly.
Confabulation about no spine boss.
It would the last thing what I would say about him.
He HAS bigger spine then 2 normal men’s, when I had conversation with him about
money and employees without rights in Australia,
although he knew that I could easy with one hand snap his spine he said that without
any fear, he has courage and I never took this from him.
HR workers.
When I left in 2008 my country there wasn’t such a thing like disciplinary meeting with
HR, what we had back then was public, government inspectors but they usually was
shooting down company,
boss was the person who was dealing with any issue related to the worker and although
I never been fired before through all those years I’ve seen few people who were fired
and remember that before boss ask them to talk about their problem they knew weeks
or even months before this happened
not 37 days before,
and all others workers around them .
When I had my first meeting with Kristy M [Kirsty Muir] I actually thought that she is
independent, from government I even asked her if she has a acces to all emails because
[2023] FWC 1288
11
I thought that my boss is not showing her everything I never said that because I felt like
idiot.
I apologise for such late time when I sending this but insomnia is new standard for me
I also attached one photo of me before all this mess, I remember Commissioner on the
beginning asked me if I got any injury in my ex company,
photo explain grounds of my unfair dismissal application.
Thank you.”
[25] As noted earlier, the respondent’s submissions referenced matters set out in sub-
paragraphs 1-9 of paragraph [64] of Brittain. As to the first matter addressed in the respondent’s
submissions, related to giving the employee a reason why he or she is at risk of being dismissed,
the respondent submitted that the evidence of Ms Ottowa and Ms Hargreaves shows that “before
dismissing the Applicant for his conduct, the Respondent gave the Applicant a reason as to why
he was at risk of being dismissed on multiple occasions including in writing on 23 November
2022 in an invitation to a disciplinary meeting and again verbally on 30 November 2023 during
the disciplinary meeting.”
[26] I accept the respondent’s submissions concerning the first matter. The evidence shows
that the respondent gave the applicant a reason or reasons why he was at risk of being dismissed.
[27] As to the second matter, related to a valid reason based on the employee’s conduct or
capacity, the respondent submitted that the evidence of Ms Ottowa shows there was a valid
reason for the applicant’s dismissal. The respondent submitted, first, that: (a) the applicant
persistently communicated with Ms Ottowa and others in the respondent’s business in a rude,
disrespectful, and entirely unprofessional manner; and (b) the applicant frequently failed to
notify the respondent of his absences from work as well as deceptively advising Ms Ottowa
that he was performing work when he had not been. Second, Mr Torres’ evidence shows that:
(a) the applicant was not present at the site performing the work that he was being paid to do;
and (b) when at work, the applicant was constantly talking poorly about either the business or
Ms Ottowa, and Mr Torres had to leave the workplace to get away from (what Mr Torres
characterised in an email to the respondent as) the applicant’s “incessant berating” about certain
matters concerning the business and the Ottowas personally. These matters, the respondent’s
submissions continued, went “to the heart of the employment relationship” in that: (a) the
applicant simply was not performing work in exchange for wages; and (b) the applicant was
not speaking to, or about, his employer in a professional and courteous manner. The respondent
submitted that it was important to highlight that Ms Ottowa’s evidence shows that, throughout
2022 and even as early as January 2021, the respondent regularly directed the applicant to
communicate in a civil and professional manner, and to follow its policy by advising of
absences from work; yet, despite these regular directions from the respondent, the applicant
continued to engage in same conduct.
[28] In its written outline, the respondent submitted that the evidence was that applicant did
not deny the allegation concerning the-then most recent unauthorised absence from the
worksite; rather, the applicant repeatedly asked to be provided evidence of the allegations. The
submissions continued:
“30. The respondent decided that on balance it believed the allegations were substantiated
(or proven), give the Applicant’s history of leaving the workplace without authorisation
[2023] FWC 1288
12
and his rude and disrespectful behaviour towards the Respondent [Ms Ottowa] to date.
The fact that the Applicant did not deny the allegations weighed in favour of them being
substantiated (or proven).”
[29] I accept the respondent’s submissions around the applicant’s unauthorised and/or
unreported failure to attend for work on various occasions, including the-then most recent
absence preceding the dismissal. In and of itself, the attendance issues would ground a valid
reason for dismissal. Specifically, because this was the last absence from work which was, in
effect, one of the determining matters for the respondent, it is necessary to make a finding
concerning this contested matter. I find that the applicant did absent himself from work on 21
November 2022. I find, on the balance of probabilities, including having regard to the evidence
of both the applicant and Mr Torres about what unfolded that day, that the applicant absented
himself from work in an unauthorised way. In reaching that conclusion, I have considered those
parts of the applicant’s case which contended that Mr Torres had engaged in retribution-type
reporting to the respondent. I also accept that the tenor and contents of some of the applicant’s
communications to his manager, Ms Ottowa, were quite inappropriate when read objectively -
notwithstanding my consideration of the applicant’s case which referenced his frustration in the
emailed comments. The tenor and contents of some of the communications sent by the applicant
to Ms Ottowa would again ground a valid reason for dismissal.
[30] As to the third matter, related to conduct including an omission, the respondent
submitted that Ms Ottowa’s evidence shows that the valid reason also relates to the applicant’s
omission in failing to notify the respondent of his intended absence from work on 21 November
2022 and, earlier, on 29 September 2022. I accept the respondent’s submissions in this regard.
[31] As to the fourth matter, related to giving the employee an opportunity to respond to the
reason for dismissal before dismissal, I accept the respondent’s submission that Ms Hargreaves’
evidence shows that the applicant was given an opportunity to respond to the reason for
dismissal during a meeting on 30 November 2022.
[32] As to the fifth matter, related to consideration being given to the response the employee
provides, I accept the respondent’s submission that Ms Hargreaves’ evidence shows that it was
the applicant who chose not to relevantly respond to the reason for dismissal during the meeting
on 30 November 2022 - despite having the opportunity to respond.
[33] As to the sixth matter, related to prior warning/s, the respondent submitted – being
submissions I accept – that the evidence of Mr Ottowa and Ms Ottowa shows that the applicant
was warned that his employment was at risk of being terminated. The evidence of the
correspondence speaks for itself in such respects. Added to the documentary record of formal
warnings, Ms Ottowa’s evidence shows the respondent had periodically warned the applicant
over the course of 2022, and as early as January 2021, that his conduct was unacceptable and/or
needed improvement.
[34] The seventh matter is related to the following: “If the employee has previously engaged
in conduct that has placed his or her employment at risk and has been warned in relation to it
there is no requirement that a further warning be given and it will be sufficient if the employee
is notified that the employer believes that the same conduct or further conduct that places the
employee’s employment at risk has occurred and gives the employee an opportunity to respond
[2023] FWC 1288
13
before dismissing the employee.” The respondent submitted that the evidence in its case,
particularly the evidence of Ms Ottowa, shows that: the applicant was continuously warned,
either verbally or in writing, throughout 2022 that his employment was at risk of being
terminated due to his persistent misconduct; the applicant was notified on 23 November 2022
that he had yet again engaged in the same conduct, which placed his employment at risk; and
the respondent gave the applicant the opportunity to respond on 30 November 2022 to that
conduct prior to dismissing him. The respondent further submitted that, as a small business
employer, “it went out of its way” to afford the applicant procedural fairness - and so much so
as to be in a way that exceeded the Code’s requirements. I accept the respondent’s submissions
in such respects, notwithstanding the applicant’s contentions to the contrary.
[35] As to the eighth matter, related to having been given a reasonable opportunity to
improve performance prior to the dismissal, I accept the respondent’s submission that Ms
Ottowa’s evidence shows that she communicated the employer’s expectations and the applicant
was given an opportunity to improve his performance over the course of 2022 and, more
specifically, after the first and second written warnings.
[36] Last, as to the ninth matter, related to an employee having another person present to
assist in relevant discussions, the applicant was provided the opportunity to have a support
person present at all meetings (and chose to have a support person present at some meetings).
Conclusion
[37] On a consideration of the matters advanced by way of evidence and submissions, I am
satisfied that the dismissal was Code-complaint. As such, it is unnecessary to consider the other
elements as to an unfair dismissal. The application is dismissed. An order in such respects will
issue in conjunction with these reasons.
[38] The proceedings are concluded.
COMMISSIONER
Appearances:
R Bednarski on his own behalf.
J Pescud of Employsure Law for the respondent.
Hearing details:
2023.
Sydney
AIR THE FAIR WORK W AUSTRALIA MISSION THE SEA
[2023] FWC 1288
14
May 2.
Final written submissions:
4 May 2023.
Printed by authority of the Commonwealth Government Printer
PR762685
1 Note: the respondent’s outline of submissions (at paragraph 11) appears to rely on its written communications regarding
its concerns dated 27 January, 21 June, 15 July, 12 September and 20 September 2022.
2 The evidence around this matter was contested. The applicant’s evidence was that Mr Ottowa relevantly said words to the
effect that employees have no rights in Australia, whereas Mr Ottowa’s evidence was that he relevantly said words to the
effect that employers have no rights in Australia. It is unnecessary to decide whose version is to be preferred, because
whatever may have been said in such respects is not relevant to the determination of the Code-related objection.
