Mrs Savita Sharma v Acts Care Limited - [2023] FWC 1927

1 

 

Fair Work Act 2009  

s.394—Unfair dismissal 

Savita Sharma 

v 

Acts Care Limited 
(U2022/8941) 

COMMISSIONER SPENCER BRISBANE, 3 AUGUST 2023 

Application for relief from unfair dismissal – interaction with manager - strict compliance 
with procedures required in accordance with nature of business – medication policy – NDIS – 
copying and sharing confidential patient information – non-attendance at meeting – lawful 
and reasonable direction – valid reason –matters of procedural fairness – harsh, unjust, 
unreasonable. 

 

INTRODUCTION 

 

[1] Mrs Savita Sharma (the Applicant) made an application to the Fair Work Commission 

(the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy 

pursuant to section 392 of the Act, alleging that she had been unfairly dismissed from her 

employment with Acts Care Limited (the Respondent/Employer). The Applicant sought 

reinstatement and compensation for lost wages. 

 

[2] The Applicant was employed with the Respondent as a Disability Support Worker, for 

more than 3 years on a permanent part time basis at various facilities of the Respondent. The 

Applicant’s dismissal was due to conduct regarding: her exchange with a staff member, failure 

to follow the medication policy, c0pying and sharing confidential patient information with an 

unauthorised person and failing to follow a lawful and reasonable direction to attend a meeting 

with the employer to discuss the alleged conduct. The Applicant was paid two weeks in lieu of 

notice. She argued that her dismissal was harsh, unjust or unreasonable. The Respondent 

submitted that the Application for unfair dismissal remedy should be dismissed, on the basis 

that there was a valid reason for the dismissal, and the Applicant was notified of the reasons 

and was provided with opportunities to respond. The Respondent stated that the material 

provided in response on behalf of the Applicant was taken into consideration. 

 

Relevant legislative provisions 

 

[3] Section 387 of the Act provides that, in considering whether it is satisfied that a 

dismissal was harsh, unjust or unreasonable, the Commission must take into account: 

 

[2023] FWC 1927 

DECISION 


AUSTRALIA FairWork Commission




 



[2023] FWC 1927 

 

2 

(a) whether there was a valid reason for the dismissal related to the person’s capacity or 

conduct (including its effect on the safety and welfare of other employees); and 

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

(c) whether the person was given an opportunity to respond to any reason related to the 

capacity or conduct of the person; and 

(d) any unreasonable refusal by the employer to allow the person to have a support 

person present to assist at any discussions relating to dismissal; and 

(e) if the dismissal related to unsatisfactory performance by the person – whether the 

person had been warned about that unsatisfactory performance before the dismissal; 

and 

(f) the degree to which the size of the employer’s enterprise would be likely to impact 

on the procedures followed in effecting the dismissal; and 

(g) the degree to which the absence of dedicated human resource management 

specialists or expertise in the enterprise would be likely to impact on the procedures 

followed in effecting the dismissal; and 

(h) any other matters that the FWC considers relevant. 

 

[4] Each of these criteria in section 387 are assessed according to the factual circumstances 

of this matter.1 

 

[5] Section 390 of the Act provides that the Commission may order a remedy if the 

Commission is satisfied that the Applicant was protected from unfair dismissal at the time of 

being dismissed and the Applicant has been unfairly dismissed. 

 

[6] Furthermore, section 392 of the Act provides: 

 

Compensation 

 

(1) An order for the payment of compensation to a person must be an order that the 

person’s employer at the time of the dismissal pay compensation to the person in lieu of 

reinstatement. 

 

Criteria for deciding amounts 

 

(2) In determining an amount for the purposes of an order under subsection (1), the 

FWC must take into account all the circumstances of the case including: 

(a) the effect of the order on the viability of the employer’s enterprise; and 

(b) the length of the person’s service with the employer; and 

(c) the remuneration that the person would have received, or would have 

been likely to receive, if the person had not been dismissed; and 

(d) the efforts of the person (if any) to mitigate the loss suffered by the 

person because of the dismissal; and 

(e) the amount of any remuneration earned by the person from employment 

or other work during the period between the dismissal and the making of the 

order for compensation; and 

(f) the amount of any income reasonably likely to be so earned by the person 

during the period between the making of the order for compensation and the 

actual compensation; and 








[2023] FWC 1927 

 

3 

(g) any other matter that the FWC considers relevant. 

 

[7] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the 

time of being dismissed: 

 

(a) the person is an employee who has completed a period of employment with his 

or her employer of at least the minimum employment period; and 

(b) one or more of the following apply: 

(i) a modern award covers the person; 

(ii) an enterprise agreement applies to the person in relation to the 

employment; 

(iii)the sum of the person’s annual rate of earnings, and such other amounts 

(if any) worked out in relation to the person in accordance with the 

regulations, is less than the high income threshold. 

 

[8] The Applicant was employed by the Respondent under the Social, Community, Home 

Care and Disability Services Industry Award 2010 (the Award). 

 

[9] In accordance with section 396 of the Act, it must next be determined: 

 

(a) whether the application was made within the period required in subsection 

394(2); 

(b) whether the person was protected from unfair dismissal; 

(c) whether the dismissal was consistent with the Small Business Fair Dismissal 

Code; and 

(d) whether the dismissal was a case of genuine redundancy. 

 

[10] The parties agreed that the application was filed in the Commission, within the statutory 

21-day period. It was not in dispute between the parties that the Respondent was not a small 

business employer, nor that this dismissal was a termination of employment and not a case of 

genuine redundancy. I am satisfied that the Applicant was a person protected in terms of the 

unfair dismissal provisions. 

 

Permission to appear 

 

[11] Both the Applicant and the Respondent sought to be represented before the Commission. 

The Applicant was represented by the Australian Workers Union (AWU), and the Respondent 

sought to be legally represented. It was set out that the Respondent had  no dedicated human 

resources personnel and the two in house management personnel were appearing as witnesses. 

The managers also did not have experience in advocacy before the Commission and the 

Applicant was represented by an experienced Industrial Officer of the AWU. Further to the 

filing of submissions on legal representation, permission was granted pursuant to section 596 

(2)(a) for the Respondent to be legally represented as this would enable the matter to be dealt 

with more efficiently, considering the complexity of the matter. 

 

[12] Accordingly, at the hearing, the Applicant was represented by Mr Aaron Santelises and 

Ms Cheri Taylor, both of the AWU and the Respondent was represented by Mr Cameron Niven, 

Lawyer of NB Employment Lawyers. 








[2023] FWC 1927 

 

4 

 

[13] The matter was originally set down to be heard at the Toowoomba courthouse. A series 

of delays with the Hearing occurred when the Respondent’s Manager-Operations officer (the 

instructing party) broke her leg and then experienced significant complications which required 

a period of hospitalisation. Difficulties then arose with being able to book the courthouse. The 

Hearing by consent, on the officer’s return to work was subsequently conducted by Microsoft 

Teams. The parties sought to file final written submissions, with Directions set by consent of 

the parties. An agreed further extension was provided as a result of a change in legal 

representative to Mr Chen for the Respondent. 

 

BACKGROUND 

 

[14] In summary terms, the Applicant set out that she attended work on 23 July 2022 at the 

Mary Street facility of the Respondent. The Applicant stated whilst working her shift she 

witnessed a client of the Respondent drop his medication between the boards of the veranda, 

and the client started yelling at her. She submitted she attempted to call 13HEALTH twice but 

was not able to speak with anyone.2 She subsequently completed an incident report about the 

medication issue and the client’s behaviour.3 There was no documentation of these attempts to 

contact 13-HEALTH. The Applicant submitted she was then informed that a client at the facility 

had tested positive for COVID-19. The Applicant informed the Respondent she felt unsafe to 

continue working there as she was pregnant. The Respondent arranged coverage for the 

Applicant, so she could leave the workplace at Mary Street. She completed her shift at another 

of the premises of the Respondent.4 

 

[15] The Respondent refuted the assertion that the Applicant had contacted 13HEALTH as 

required, in breach of their policies,5 and emphasised that there had been no required 

documentation of this. The Respondent submitted that due to the risk to their business, in terms 

of an alleged breach of this important policy, they determined to speak to the Applicant about 

this.6 Ms Carlita Rose, Operations Manager of the Respondent sought to schedule a meeting 

with the Applicant in 2 days. Matters had also arisen regarding a complaint in terms of the 

manner, in which the Applicant had spoken to a manager.  

 

[16] A day later the AWU, on behalf of the Applicant sought to reschedule this meeting   due 

to representative unavailability. The Respondent responded seeking other suitable dates for the 

meeting, that aligned with the Applicant’s rostered shifts. 

 

[17] On Thursday 4 August 2022 the Respondent requested the Applicant attend the meeting 

to respond to several allegations and set out those allegations. The meeting was proposed for 

Friday 5 August 2022 or Monday 8 August 2022. The allegations to be discussed were set out 

in an email to the Applicant from Ms Carlita Rose, Operations Manager of the Respondent, as 

follows: 

 

“Dear Savita, 

 

DISCIPLINARY MEETING/ PERFORMANCE COUNSELLING 

 

Apologies for not going into details in the prior invitation, and also in the delay for this 

email – please see below details for our meeting. 








[2023] FWC 1927 

 

5 

 

I am concerned about various aspect(s) of your performance. In particular, I am 

concerned that: 

 

(a) On 20/7/2022 you failed to follow policies and procedures in relation to – that you 

were instructed to speak with myself and continued to complain to the manager XXXX 

using a rude tone and argued that it was not fair, saying it is a “you people problem” 

instructing “you people – to do more buddy shift.” Not speaking respectfully to others 

or following reasonable work instruction. You failed to comply with company guidelines 

by discussing internal queries and concerns with manager XXXX instead of myself. 

 

(b) On 23/7/2022 you allegedly neglected to follow internal policies and procedures in 

relation to Participant missing medication. Your documentation does not show the 

policy and procedure, nor a duty of care, as per relevant training. 

 

(c) You have been requested to submit certificates for your certificate 3 and 4 in 

Disability and to date have not provided such evidence. 

 

I would like to discuss these concerns with you in a formal counselling meeting. During 

the meeting I will provide you with any further details about my concerns and I will also 

provide you with an opportunity to respond to them. 

 

Accordingly, I would like you to attend a meeting with me at 148 Campbell Street on 

5/08/2022 at 1pm or 08/08/2022 at 9am – please confirm at your earliest convenience. 

 

You may bring a support person with you to this meeting, please note your support 

person is there to support you and be a witness, not to speak on your behalf. 

 

If you have any questions, or if you would like to propose a different time, please do not 

hesitate to contact me.”7 

 

[18] The Applicant replied, on receipt of the email, confirming her attendance on Thursday 

4 August 2022 at 12:20pm for the Monday 8 August 2022 meeting time.8 

 

[19] The AWU then responded to this email correspondence the same day at 12:54pm, 

seeking the evidence the Respondent was intending to rely on in the investigation of these 

matters, and stated the meeting may need to be deferred if the information was not provided in 

a reasonable timeframe before the meeting: 

 

“Good afternoon Carlita, 

 

In order for Savita to have a fair opportunity to respond to the concerns you have raised 

I request that we be provided with any evidence that will be supplied during the meeting 

or used in the investigation of this matter by 5pm this afternoon. 

 

Should you be unable to provide the requested information by then a new time later in 

the week will need to be provided so that Savita has a reasonable amount of time to 

prepare for the meeting.9”  








[2023] FWC 1927 

 

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[20] The Applicant clearly had an awareness of the matters to be addressed at the meeting, 

based on her knowledge of the events, the information provided, and had accepted the meeting 

accordingly. On Friday 5 August 2022, as requested, the Respondent provided further 

particulars of the allegations for the meeting and sought confirmation of attendance by 5:00pm 

the same day, for the Monday 8 August 2022 meeting. The Applicant submitted that she did 

not see this email until after 6:00pm that day.10 The further particularised allegations provided 

were set out as follows: 

 

“Dear Savita 

 

DISCIPLINARY MEETING/ PERFORMANCE COUNSELLING 

 

ActsCare has concerns regarding your conduct and adherence to workplace policies 

and procedures. We would like to address this with you to ensure there is no confusion 

about our expectations and what is expected of you during your employment. We 

provide the following: 

 

Allegation 1 

It is alleged that: 

a. On 20 July 2022 it is alleged that you have been disrespectful to another staff 

member, being [redacted]; (when asked to change shift location) 

b. It is alleged you have used a rude tone and been insubordinate in your conduct 

by stating: 

i. An issue was a “you people problem”; and 

ii. “You people – to do more buddy shift” 

 

The above alleged conduct was received as being unprofessional and demonstrating a 

lack of respect towards your colleagues, peers, and management. Your position 

provides the opportunity to express yourself freely. However, this freedom does not 

extend to being knowingly rude to your colleagues. 

 

Allegation 2 

It is alleged that: 

a. On 23 July 2023, an NDA Participant forced their medication through the 

flooring on a balcony; 

b. You were aware of the conduct within a. above; 

c. You did not contact anyone or take any steps in respect of a. above; 

d. You have completed ActsCare’s medication training which directs you to 

contact 13 HEALTH in circumstances where a patient misses, or does not take 

necessary medication under their NDIS participant’s care plan; 

e. In contravention of ActsCare’s Essentials B policy, section Unit 2, last 

paragraph, you failed to record, or note appropriate procedure in regard to the 

missing medication; 

f. In response to the above, ActsCare sought to better understand your training 

and qualifications by providing you with a lawful and reasonable direction to 

provide your Certificates III and IV in Disability Support. It is noted you have 








[2023] FWC 1927 

 

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provided incomplete documents which are not compliant and do not appear to 

be a certificate of completion 

g. In contravention of the above, you have failed to provide the certificates in a 

reasonable period of time11. 

 

Your position requires you to meet a specific standard of care, specifically for, and when 

treating NDIS Participants. Crucial to this obligation is the management of drugs and 

other pharmaceuticals which are used within ActsCare as per health directions and 

NDIS Participant’s care plans. Your conduct, if substantiated, demonstrates an 

intention not to be legally bound by the terms of your employment contract, particularly 

in circumstances where you have failed to comply with a lawful and reasonable 

direction. This conduct can be categorised as serious misconduct under the Fair Work 

Regulations 2009 (Cth). 

 

Further, your conduct has the potential to expose ActsCare to a significant liability 

regarding the potential breach of duty of care of an NDIS Participant. This is serious 

matter to ActsCare given the nature of our business. 

 

Given the above, we direct you to attend a workplace meeting for the purpose of 

providing responses to the above. Should you require further information, and this 

information is reasonably necessary for you to understand the nature of our concerns, 

this will be provided. Please note, ActsCare will not disclose the names of persons who 

have raised their concerns about you. For this reason, you are directed to attend 148 

Campbell Street on 8 August 2022 at 9:00 am. 

 

You may bring a support person with you to this meeting, please note your support 

person is there to support you and be a witness, not to speak on your behalf. 

 

Given the nature of the above allegations, you are welcome to respond in writing with 

confirmation of same to be sent to the ActsCare not later than 5pm - 5 August 2022. 

 

The above allegations are serious, and if substantiated ActsCare will consider what, if 

any, disciplinary action is necessary. 

 

If you have any questions, or if you would like to propose a different time, please do not 

hesitate to contact me. 

 

Yours sincerely 

Carlita Rose12” 

 

[21] The meeting notice and further details required confirmation of attendance. 

 

[22] On Sunday 7 August 2022, before the Monday meeting, the AWU emailed the 

Respondent seeking postponement of the meeting to ensure a fair process and proposed an 

alternative meeting time or that the Applicant be allowed a further 7 days to respond in writing. 

 

[23] On Monday 8 August 2022, prior to the scheduled 9:00am meeting, between 6:36am 

and 9:52am, several emails were exchanged between the Applicant’s representative and the 








[2023] FWC 1927 

 

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Respondent. The AWU’s proposal for a further changed meeting time for the Applicant to 

consider the allegations and give her written response was denied. Ms Carlita Rose in the 

response emails was clear that the Applicant was notified at an early time of the meeting, the 

Applicant understood the matters being referred to, and the Applicant accepted the meeting on 

that basis. However, when the Union later requested further details, these were provided. Ms 

Rose set out in her witness statement that there were no dedicated HR personnel for the 

Respondent, and she was unwilling to reschedule the meeting any further.13 Those emails are 

set out below: 

 

Ms Carlita Rose to Mr Reed-Banyard at 6:36am: 

“Good morning Nelson, 

 

I regards to this morning meeting – I have given plenty of notice as you have requested 

multiple times for this. 

 

Savita has already accepted this morning’s meeting. Would you like to join via video? 

I decline your proposal to change the date, nor Savita respond in writing as this has 

dragged out far too long.” 

 

Mr Reed-Banyard to Ms Carlita Rose at 8:01am: 

“Good Morning Carlita, 

 

Savita had accepted this morning’s meeting disciplinary meeting before you had 

provided more information in regard to the investigation. In my prior email on Thursday 

04/08/2022 I also requested if there is additional information and evidence for Savita 

to consider prior to this meeting that it be rescheduled for later in the week.  

 

I also acknowledge you provided Savita less than 3 hours to produce a response in 

writing on Friday 5/08/2022. 

 

Should you prevent Savita from having the opportunity to a fair and reasonable 

response, as is her right under the Fair Work Act, I will have no choice but to seek a 

resolution to this matter in the Fair Work Commission. 

 

I strongly recommend you reconsider.” 

 

Ms Carlita Rose to Mr Reed-Banyard at 8:54am: 

 

“Respectfully – there is no further information in this amendment. 

This has no workability and is extremely impact to the business. 

I would like your seniors contact details please?” 

 

Mr Reed-Banyard to Ms Carlita Rose at 9:52am: 

“Good Morning Carlita, 

 

I have CC’ed Craig Downie the AWU South Western District secretary into this email. 

 

I have 2 things to note: 








[2023] FWC 1927 

 

9 

1. The number of allegations changed from 2 to 3 and the nature of allegation 2 has 

changed significantly. 

2. If there has been no further information provided or changed, why has it been 

submitted as an amendment (see below). 

 

“Amendment” – noun 

A minor change or addition designed to improve a text, piece of legislation etc. 

…14” 

(Emphasis added) 

 

[24] It appears that the Applicant in conjunction with her representative, surmised (in the 

absence of any confirmation of the cancellation of the meeting), that given the exchange of 

emails on the morning of the meeting, that extended past the meeting time, she considered that 

the meeting would not proceed. The Applicant did not attend the meeting as scheduled and as 

she had previously confirmed.15 The Respondent was of the clear view that the meeting was 

proceeding, as the Applicant’s shifts had previously been accommodated, as had her requests 

for additional information. 

 

[25] It was argued on behalf of the Respondent that given the attempts by Ms Rose to manage 

this matter, and in the absence of justified reasons for the Applicant’s non-attendance, that the 

matters to be discussed were clearly set out, and there was no reason for the Applicant not to 

attend the meeting. Therefore, the Respondent considered, based on all the steps taken, that the 

matter had not progressed, and that additional assistance was required in managing these 

matters. They therefore had Mr Cameron Niven, their legal representative, write to the 

Applicant’s representative stating he now acted for the Respondent. This correspondence went 

on to state that the Applicant had been afforded a reasonable opportunity to respond, but had 

chosen not to engage with the disciplinary process and that the Respondent would therefore 

consider the material available, regarding the substantiation of the allegations: 

 

“Dear Mr Reed-Banyard 

 

RE: Meeting with Savita Sharma 

 

We act for ActsCare (Client). 

 

We refer to the Australian Workers’ Union’s (AWU) emails dated 7 August 2022 and 

two (2) emails dated 8 August 2022. 

 

Preliminary 

1. We understand Ms Savita Sharma (Ms Sharma) was directed to attend a 

meeting with our Client at 148 Campbell Street at 9:00 am today (Meeting). The 

purpose of the Meeting was to provide Ms Sharma with an opportunity to 

respond to allegations which had been put to her in previous correspondence. 

2. The direction to attend the Meeting a reasonable and lawful direction consistent 

with Ms Sharma’s employment obligations and was necessary for the purposes 

of reasonable management action. 

3. Despite our Client receiving correspondence affirming Ms Sharma’s 

attendance, Ms Sharma has not attended the Meeting. 








[2023] FWC 1927 

 

10 

 

Correspondence 

7 August 2022 

4. In respect of the AWU’s 7 August 2022 email, Ms Sharma was provided with a 

reasonable opportunity to respond. In this regard, the purpose of the Meeting 

was not to impose disciplinary action against Ms Sharma.  

5. Instead, it was to obtain any responses which she wishes to provide before our 

Client made any decision regarding Ms Sharma’s ongoing employment. 

6. Ms Sharma not attending the Meeting does not give rise to a circumstance 

wherein there has been no opportunity to respond. In this regard, we provide the 

matter of Siriwardana Dissanayake v Busways Blacktown Pty Ltd [2011] 

FWAFB 6487 (Siriwardana). Siriwardana stands for the proposition that a 

failure to cooperate with a disciplinary process does not result in a failure to 

provide an opportunity to respond. 

7. Ms Sharma has been provided with an opportunity to respond. In this regard, 

we note Ms Sharma received the allegations letter on Friday 5 August 2022, 

which provided her with two (2) full days to consider the allegation and what 

material, if any, could be provided in response. Instead of attending the Meeting 

as directed, it appears Ms Sharma has instructed the AWU to seek an extension 

of time to respond and in doing so has not provided the reason for the request. 

8. Given the above, it appears Ms Sharma has been afforded a reasonable 

opportunity to respond and instead of engaging with the disciplinary process 

has chosen to avoid conversations regarding her performance and conduct. This 

is unfortunate. 

 

8 August 2022 

9. In respect of the AWU’s first email on 8 August 2022 email, we note the 

correspondence which included a direction to attend the meeting contains 

details of the allegations and their particulars. Given this, the comment "Savita 

had accepted this morning’s meeting disciplinary meeting before you had 

provided more information in regard to the investigation" is misguided. 

10. The allegation has not been amended. Rather, it has been clarified for Ms 

Sharma’s benefit. Irrespective of these matters, there does not appear to be any 

prejudice caused to Ms Sharma as the substantive allegation remains intact, 

albeit more clearly particularised and defined. It goes without saying we 

consider it inappropriate to request better and further information within the 

particulars, while concomitantly complaining regarding same. 

11. In respect of the AWU’s second email on 8 August 2022, our Client is not obliged 

to provide further information regarding why the allegations were further 

particularised. Suffice to say it was off the back of the AWU’s request. 

12. Regarding the threat to refer this matter to the Fair Work Commission. We take 

no issue in this and Ms Sharma is welcome to do so. Notwithstanding the AWU 

has failed to particularise the nature of its concerns, we view it is likely the AWU 

intends to lodge a stop bullying application. On this basis, we note the conduct 

of this matter to date has been reasonable insofar as Ms Sharma has been 

provided with clarified particulars which draw her attention to our Client’s  

concerns well enough to provide response. The AWU will appreciate reasonable 

management action need not be perfect. 






https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb6487.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb6487.htm


[2023] FWC 1927 

 

11 

13. Moving forward, it would be appreciated if the AWU could not send Google 

search results to our Client. It is inconsistent with the otherwise good work the 

AWU undertakes. 

 

Moving Forward 

Our Client will consider the nature of the allegations and whether they are capable of 

being substantiated based on the material presently available. Further, our Client will 

consider how to address Ms Sharma’s failure to comply with a lawful and reasonable 

direction in not attending the Meeting. 

 

Should you have any further questions or queries please do not hesitate to contact 

Cameron Niven, Senior Lawyer, on …16” 

 

[26] On 10 August 2022, the Applicant received an outcome letter regarding the allegations, 

which informed her they were substantiated and issued a formal warning: 

 

“Dear Mr Reed-Banyard 

 

RE: Outcome of Show Cause and other matters 

 

We act for ActsCare (Client). 

 

We refer to our Client’s previous correspondence dated 5 August 2022 (Allegation 

Letter) and our previous correspondence dated 8 August 2022 (Correspondence). 

 

Position 

1. Within the Correspondence, we addressed Ms Savita Sharma (Ms Sharma) had 

failed to attend a workplace meeting on 8 August 2022 (Meeting). The purpose 

of the Meeting was to obtain Ms Sharma’s response to allegations put to her 

within the Allegation Letter. Our Client wished to ensure Ms Sharma was 

afforded an opportunity to respond to the particulars within the Allegation 

Letter. 

2. For unknown reasons, Ms Sharma did not attend the Meeting. This is despite 

representations being made that Ms Sharma would attend the Meeting. 

3. Within the Correspondence, we advised in circumstances where Ms Sharma had 

failed to respond to the Allegation Letter in not attending the Meeting, it would 

be required for our Client to consider the materials available and determine, on 

the balance of probabilities, if the allegations were capable of being 

substantiated. 

 

Allegation 1 

4. Our Client received a complaint from a long-standing employee. We understand 

this complaint to have been credibly provided and that it arose in circumstances 

which lead our Client to believe the complaint to be genuine. Our Client 

understands Ms Sharma became heated with another employee. 

5. In lieu of the above and noting Ms Sharma has not denied the allegation or 

provided any material which would suggest it is untrue or not capable of being 








[2023] FWC 1927 

 

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substantiated, our Client views the allegation is, on the balance of probabilities, 

capable of being substantiated. 

 

Allegation 2 

6. Our Client understands Ms Sharma has failed to report an NDIS Participants’ 

conduct in circumstances where her skills, experience, and qualifications lead 

to a conclusion she knew, or ought to have known, that it was reasonably 

necessary for her to take steps to report the conduct and to seek further 

guidance. 

7. In lieu of the above and noting Ms Sharma has not denied the allegation or 

provided any material which would suggest it is untrue or not capable of being 

substantiated, our Client views the allegation is, on the balance of probabilities, 

capable of being substantiated. 

8. Further, and in addition to the above, Ms Sharma has not yet provided her 

Certificates III and IV in Disability Support to our Client. Given this, it is 

determined Ms Sharma has failed to comply with a lawful and reasonable 

direction. 

 

Formal Warning 

9. Our Client has had regard to the nature of the substantiated conduct and the 

result an adverse finding will have on Ms Sharma’s ongoing employment. Our 

Client has also considered the seriousness of the conduct, which is coloured by 

elements of negligence and a failure to use and rely upon systems of work 

correctly, and a failure to exercise due care, skill, and attention. Our Client has 

weighed the likelihood of the conduct not occurring against the likelihood of it 

occurring and reached the view it is appropriate to impose a formal warning 

against Ms Sharma in respect of each of the above substantiated allegations. 

10. Our Client will maintain a copy of this correspondence on Ms Sharma’s 

personnel records as a confirmation that a formal warning has been imposed. A 

previously issued formal warning may be relied upon for any subsequent 

disciplinary matters. 

11. Moving forward, Ms Sharma will not be placed on a performance improvement 

plan. However, it is expected that she adheres to our Client’s policies and 

procedures, particularly concerning patient safety and treatment 

12. In the circumstances, the direction to Ms Sharma to provide her Certificate IV 

in Disability Support is re-issued. To be clear, Ms Sharma must provide her 

Certificate IV in Disability Support on or before Monday, 15 August 2022. We 

understand the Certificate III was provided on 5 June 2022. 

13. Our Client appreciates Ms Sharma may be upset by the Allegation Letter and its 

contents and being provided with a formal warning for her conduct. Particularly 

as it was her colleague who took steps to identify her conduct to our Client. In 

these circumstances, any retaliatory or retributory conduct by Ms Sharma will 

not be entertained and will result in disciplinary action up to and potentially 

including termination of her employment. 

 

Moving Forward 








[2023] FWC 1927 

 

13 

This correspondence does not address our Client’s position on Ms Sharma’s failure to 

attend the Meeting. We confirm this is a separate and distinct matter from the matters 

addressed within the Allegation Letter. 

 

Further, our Client looks forward to receipt of Ms Sharma’s Certificate III and IV in 

Disability Services, which will be provided on or before Monday, 15 August 2022. This 

direction is a lawful and reasonable direction, as received from our Client. 

 

Should you have any further questions or queries, please do not hesitate to contact 

Cameron Niven, Senior Lawyer, on …17” 

(Original emphasis) 

 

[27] The Applicant’s representative wrote to the Respondent to appeal the formal warning 

outcome on 12 August 2022. The correspondence noted the apparent lack of procedural fairness 

thus far and provided a response to the allegations on behalf of the Applicant, including 

attaching screenshots of the incident report filed by the Applicant on 23 July 2022 to support 

the assertion that the Applicant had followed the policies and procedures of the Respondent. 

 

… 

 

Allegation 1 

See attached recollection of events from Ms Sharma. 

 

“I discussed the same thing with Carlita on the very second day, when she called on 

Mary street about a new staff buddy shift. I didn’t use any rude language to any of the 

house lead. I was talking in a normal way. The ‘buddy shift’ was only the concern and 

I requested for buddy shifts for more staff after the house lead requested me to do swap 

the shift for more times as she couldn’t put any other staff as they were not been provided 

the buddy shifts in other houses. It was my suggestion after she told me all this. Told me 

the concern and I gave the suggestion and before we got the email from the office that 

if staff had any concerns they should follow the chain contact -first to house lead-

supervisor-office-Annette. I did the same contacted house lead first and had a chat with 

Carlita on the second day.” 

 

While I appreciate the credibly provided by the original complainant, I presume the 

same credibility afforded to Ms Savita Sharma. Taking into consideration her track 

record for performance reviews, professional conduct in the workplace and anecdotes 

from her colleagues. 

 

Allegation 2 

It is alleged that: 

a) On 23 July 2022, an NDIS Participant forced their medication through the 

flooring of a balcony; 

b) You were aware of the conduct within a. above; 

c) You did not contact anyone or take any steps in respect of a. above; 

 

Attached are two separate Incident reports (Appendix 1+2) Ms Sharma had submitted 

on 23/07/2022 pertaining to the incident mentioned and the behaviour of the client while 








[2023] FWC 1927 

 

14 

Ms Sharma was writing the first report. These reports were also supplied to her 

Supervisor and [office email address]. Savita also attempted to contact 13Health twice 

as all staff are instructed to when subject to situations where clients do not take their 

medication. 

 

It should be noted that during this situation Ms Sharma had assessed one of the clients 

to be presenting COVID-like symptoms and managed to isolate them until a test could 

be taken. This Client went on to test positive to COVID. Ms Sharma should be 

commended for the way she conducted herself during this circumstance, remaining 

professional and providing exceptional care in a highly 

stressful situation. 

 

The Australian Workers Union, upon consideration of all evidence provided, believes 

that neither allegation can be substantiated on the balance of probabilities. The 

Australian Workers Union views the punishment provided by Actscare as unjust. 

 

Moving Forward 

 

On behalf of Ms Savita Sharma, I request that: 

 

1. Evidence of requirement for a Certificate IV in Disability Care be provided by 

Actscare. The AWU reminds Actscare that someone employed under the “Social, 

Community, Home Care and Disability Services Industry (SCHCADS) Award 

2010” and performing the duties paid at pay point 2.1 (Social and Community 

Services Employees) only requires a certificate III in Disability Care. 

ActsCare’s other employees completing the same duties as Ms Sharma have not 

been requested to provide a Certificate IV nor does the job posting on Indeed 

(updated 19 days ago) require a Certificate IV to apply or presumably be 

successful in the application process. 

2. IF a Certificate IV in Disability Care is proven to be necessary for Ms Sharma’s 

employment, her pay be increased in accordance with the SCHADS award 2010. 

Is Ms Sharma’s Diploma in Disability Care adequate in lieu of her being able 

to provide a Certificate I, given that her Diploma is of equal or greater 

certification? 

 

In order for ActsCare to provide a suitable response the AWU proposes a response be 

made within 14 days (no later than the 25th of August 2022). The AWU proposes the 

due date for Ms Savita Sharma to provide her Certificate IV be postponed until Actscare 

have responded with the requested information. 

 

Should you have any questions about this letter or the attached request, please do not 

hesitate to contact Nelson Reed-Banyard on…18” 

 

[28] On 19 August 2022, the Applicant received further allegations from the Respondent due 

to her inclusion of the photographs of the Applicant’s 23 July 2022 incident reports: 

 

“Dear Savita 

 








[2023] FWC 1927 

 

15 

RE: Allegations of misconduct 

 

We act for your employer, ActsCare (Client). 

 

On 10 August 2022, you were provided with an outcome letter concerning two (2) 

allegations (Outcome Letter) which were put to you for a response. We do not propose 

to provide a comprehensive background of these matters. The Outcome Letter imposed 

a Formal Warning against you as a consequence of your failure to treat your colleagues 

with respect and a failure to comply with our Client’s policies and procedures.  

 

However, the Outcome Letter further advises the purpose of the correspondence was not 

to address your alleged failure to attend a workplace meeting which you were lawfully 

and reasonably directed to attend. Instead, it informed you its purpose was to address 

the two (2) allegations which had been put to you. 

 

Given the finalisation of the previous discipline process, our Client now wishes to address 

your alleged poor conduct during the previous discipline process. In this regard, while 

progressing through a disciplinary process, you are still obliged to adhere to lawful and 

reasonable directions. To be clear, inappropriate or insubordinate behaviour is not 

excused because you may be progressing through a disciplinary process. Our Client is 

entitled to expect complete compliance with its lawful and reasonable directions. 

 

Given the above, our Client has concerns you may have demonstrated further behaviour 

which is inconsistent with your employment obligations and have surreptitiously 

obtained information in contravention of your ongoing confidentiality obligations. We 

provide the following regarding our Client’s concerns: 

 

Allegations 

 

Allegation 1: 

1. It is alleged that: 

a. On 4 August 2022, our Client directed you to confirm your attendance at 

a workplace meeting (Meeting) for the purposes of discussing concerns 

regarding performance and conduct in the workplace; 

b. On 5 August 2022, you confirmed your attendance at the Meeting; 

c. You wilfully and deliberately failed to attend the Meeting and have not 

provided a reason for same; and  

d. The direction to attend the Meeting was lawful and reasonable, and 

necessary management action. 

2. Our Client considers the alleged conduct amounts to a failure to comply with a 

lawful and reasonable direction. 

3. We understand the Meeting was to provide you with an opportunity to respond to 

two (2) allegations that had been put to you in correspondence. Your alleged non-

attendance is not excused by the finalisation of the disciplinary process through 

which you were progressing. Instead, if substantiated, our Client considers the 

alleged conduct will amount to a further instance of failing to adhere to lawful 

and reasonable direction given to you in the workplace. 

 








[2023] FWC 1927 

 

16 

Allegation 2:  

4. It is alleged that: 

a. During your employment, you are provided access to our Client’s internal 

computer systems and the confidential information within; 

b. On 21 August 2019, you signed our Client’s Privacy and Confidentiality 

Memorandum which confirms you acknowledge: 

i. Employees are not permitted to take photos and/or videos of 

Client’s suppliers, employees, contractor or any associated parties 

without consent; and 

ii. Any photo or videos must only be taken for work purposes and be 

approved before being taken. 

 

(Confidentiality Memo) 

 

c. On 19 March 2021, you agreed to our Client’s Privacy and Confidentiality 

Agreement which stipulates you agrees [sic]: 

i. To maintain the confidence of confidential information and prevent 

unauthorised disclosure [sic] or use by any other person; 

ii. To only use confidential information for the purpose of carrying out 

your duties; 

iii. To not remove any part of the confidential information from our 

Client’s business premises; and 

iv. To not copy or in any manner reproduce the confidential 

information 

 

(Confidentiality Agreement) 

 

d. On 12 August 2022, Mr Nelson Reed-Banyard (Mr Reed-Banyard) 

responded (as your appointed representative) to the Outcome Letter and 

sought to “appeal” the finding under the Social, Community, Home Care 

and Disability Services Industry Award 2010 (Award), section 9 (Appeal 

Request); 

e. Within the Appeal Request, Mr Reed-Banyard disclosed four (4) images 

which relate specifically to an NDIS participant’s [sic] treatment and are 

our Client’s confidential information; 

f. Given the above, it is alleged you have taken four (4) photos of confidential 

information within your employment, in contravention of the Confidentiality 

Memo, the Confidentiality Agreement and your Employment Contract’s 

requirements; and 

g. Have inappropriately disclosed the confidential information for an improper 

purpose without our Client’s consent to Mr Reed-Banyard 

 

5. Our Client considers it reasonable to suggest it was not required for you to take 

photos of its confidential information. Instead, it was appropriate to merely 

reference the documents. In this regard, we note you have not sought 

authorisation to take photos of our Client’s confidential information. To be clear, 

it appears you have acted in a manner which is expressly prohibited by the 

Confidentiality Agreement and Confidentiality Memo. 








[2023] FWC 1927 

 

17 

6. The alleged conduct is particularly concerning to our Client given you were not 

present in the workplace when the Appeal Request was sent to our office. Given 

this, it appears you may have sought a colleague to take the photos on your behalf. 

Should this be the case, we consider it would be highly inappropriate to request 

another employee be complicit in your alleged contraventions of our Client’s 

policies and procedures. 

 

Opportunity to Respond 

7. Given the above, we direct you to respond to the above allegations in writing by 

no later than 5:00 pm, Friday 26 August 2022. Should you require further 

information, and this information is reasonably necessary for you to understand 

the nature of our Client’s concerns, this will be provided. 

8. The above allegations are serious, and if substantiated, our Client will consider 

what, if any, disciplinary action is necessary. 

 

Moving Forward 

In the interests of clarity, we note the Award, section 9 does not provide you with rights 

of appeal as this provision is intended to deal with disputes which arise out of the Award, 

or which relate to the National Employment Standards (NES). A workplace discipline 

process is neither of these. 

 

Should you have any further questions or queries please do not hesitate to contact 

Cameron Niven, Senior Lawyer, on ...”19 

 

[29] The correspondence from the Respondent’s representative did not set out that the 

termination would be undertaken ‘on the papers’ only, without a meeting of the parties. On 26 

August 2022, the AWU briefly responded to the allegations on behalf of the Applicant as set 

out below: 

 

“Re: Allegations of misconduct, AWU Member Ms Savita Sharma 

 

We act on behalf of our member, Ms Savita Sharma in responding to your 

correspondence of 19 August 2022. 

 

Allegation 1: 

It is alleged that our member wilfully or deliberately failed to attend a workplace 

meeting for the purposes of discussing concerns regarding her performance and 

conduct in the workplace; have not provided a reason for this non-attendance and that 

this alleged conduct amounts to a failure to comply with a lawful and reasonable 

direction. 

 

The reason for Ms Sharma’s non-attendance at this meeting was due to a 

miscommunication between the parties as to the status of this meeting and the concerns 

to be discussed at same. 

 

As such, it is not open to your client to determine that our member wilfully and 

deliberately failed to attend the meeting as directed. 

 








[2023] FWC 1927 

 

18 

Allegation 2: 

It is alleged that our member took four (4) photos of confidential information in 

contravention of your Client’s Confidentiality Memo and Agreement; and that she 

inappropriately disclosed the information for an improper purpose to the AWU’s Mr 

Reed-Banyard. 

 

We understand that Ms Sharma took the photographs in question (of two incident 

reports) at the time of completing these reports. We further understand that the only 

reason our member did so was for her own protection in the event that the NDIS 

Participant raised concerns about her carrying out her duties. 

 

Evidence of qualification: 

Please find attached evidence of Ms Sharma’s qualification, a Diploma in Community 

Services. 

…20” 

 

[30] The Respondent, having considered these responses and the range of breaches of policy 

and conduct, forwarded the letter notifying of the termination of her employment due to the 

further substantiation of the 19 August 2022 allegations: 

 

“Dear Craig and Savita 

 

RE: Termination of your employment 

 

We act for your employer, ActsCare (Client). 

 

Background 

1. We provide the relevant background as follows: 

 

a. On 4 August 2022, our Client put two (2) allegations (Allegations) to you 

regarding your performance of your position’s duties and your workplace 

conduct (Allegations Letter); 

b. On 5 August 2022, the Allegations were clarified and further 

particularised to ensure you were able to understand the nature of our 

Client’s concerns; 

c. On same day, you confirmed your attendance at a workplace meeting to 

be held on 8 August 2022 (Meeting); 

d. On 10 August 2022, you were provided with an outcome regarding the 

Allegations within the Allegations Letter (Outcome Letter); 

e. The Outcome Letter substantiated the Allegations against you were 

substantiated, and you were issued with a formal warning in respect of 

each of the Allegations (Formal Warning(s)); 

f. On 12 August 2022, following the conclusion of the matter, Mr Nelson 

Reed-Banyard (Mr Reed-Banyard) of the Australian Workers’ Union 

(AWU) requested further information regarding the Allegations and 

concomitantly provided your responses to same. Additionally, Mr Reed-

Banyard sought to rely upon dispute resolution provision within the 








[2023] FWC 1927 

 

19 

Social, Community, Home Care and Disability Services Industry Award 

2010 (Award), which does not apply to your employment; 

g. On 19 August 2022, our Client put two (2) further allegations to you 

regarding your compliance with lawful and reasonable directions and 

adherence to our Client’s policies and procedures (Further Allegations 

Letter); and On 26 August 2022, Mr Craig Downie (Mr Downie) of the 

AWU responded (Response) to the Further Allegations Letter. 

 

2. The purpose of this correspondence is to address your Response to the Further 

Allegations Letter. We provide the following. 

 

Allegations 

 

Allegation 1 

3. On 4 August 2022, you were directed to confirm your attendance at the Meeting. 

On the same day, you confirmed your attendance. The purpose of the Meeting was 

to have conversations regarding your performance and conduct in the workplace. 

4. Within the Response, the AWU stipulates the reason for your non-attendance was 

a miscommunication. However, Mr Downie does not state the cause or reason of 

the miscommunication and asserts it is not open for our Client to determine you 

have wilfully and deliberately failed to attend the Meeting as directed. 

5. Our Client disagrees. In the circumstances, our Client is entitled to expect 

complete compliance from you in completing lawful and reasonable directions 

within the workplace. We consider, and no information is provided by the AWU 

to this point, that you have agreed to attend the Meeting and have sought advice 

from the AWU. 

6. Thereafter, we presume the AWU has likely advised you not to attend the Meeting 

until further information was provided by our Client. However, in the course of 

the AWU representing you, it appears they may have failed to advise our Client 

you would not be attending the Meeting. The AWU’s failure does not excuse your 

attendance or provide you with a reasonable excuse not to attend the Meeting. In 

the circumstances, a more appropriate course of action would have been for a 

representative of the AWU to attend the Meeting with you and to request further 

information or otherwise act as a support person. 

7. Instead, we understand you have not attended the Meeting or provided any reason 

for your non-attendance to our Client at this time. 

8. Our Client has no issue in the AWU’s involvement in these matters and has no 

regard to any advice you have received from them. To this point, we note the 

allegation against you is that you have failed to attend the Meeting. This is the 

basis of our Client’s concerns. It is not that you have contacted the AWU, which 

of course, you are entitled to do and our Client has no concern with. 

9. Within the Response, there is nothing which demonstrates a reason for non-

attendance a the Meeting, for example, a family emergency or pressing necessity 

which could not be avoided. Should this have been brought to our Client’s 

attention, we consider the Meeting would have been rescheduled. Instead, our 

Client has been ‘left in the dark’. 








[2023] FWC 1927 

 

20 

10. Given the information within the Response, we consider it is open to confirm you 

have failed to comply with a lawful and reasonable direction, and on this basis, 

the allegation is capable of being substantiated. 

 

Allegation 2 

11. Allegation 2 centres around the capture and collection of our Client’s confidential 

information and information regarding NDIS Participants. 

12. The Response stipulates the reason you have taken four (4) photographs was for 

your “own protection” in the event an NDIS Participant raised concerns about 

the nature in which you complete your duties. 

13. Our Client does not see the utility in this argument and considers in circumstances 

where an NDIS Participant took issue with the manner of your treatment, the 

incident reports which you have taken photographs of would be available within 

our Client’s database. In practical terms, we do not consider the Response 

provides substantial reasons which would allow you to contravene our Client’s 

policies and procedures. 

14. In addition to the above, the Response does not outline in what way you have not 

contravened the policies and procedures which it is alleged you have contravened. 

Instead, it appears the AWU, as your representatives, has admitted to the conduct 

and provided an excuse for same. 

15. It was highlighted within the Further Allegations Letter that our Client takes these 

matters seriously and on this basis, we considered you would direct the AWU to 

provide substantial reasons for your alleged conduct. Instead, it appears the AWU 

has dealt with these matters as if they were trivial. This is unfortunate. 

16. Given the information within the Response, which we consider includes an 

admission of the alleged conduct, we consider the allegation is capable of being 

substantiated. 

 

Discipline 

17. Our Client has had regard to the nature of the substantiated conduct and the result 

an adverse finding will have on your ongoing employment. Our Client has also 

considered the seriousness of the conduct. Our Client has weighed the likelihood 

of the conduct not occurring against the likelihood of it occurring and reached 

the view it is appropriate to terminate your employment for the above 

substantiated allegations and substantiated allegations within the Outcome 

Letter. 

18. Within the Further Allegations Letter, you were advised these matters were 

serious. Given this, and considering the admissions within the Response in respect 

of Allegation 2 above, we considered it necessary for the Response to outline 

matters which weigh in favour of no discipline action being taken against you. 

19. However, the Response does not outline items which would ordinarily weigh in 

your favour. In the circumstances, our Client considers your age, qualifications, 

ability to obtain further employment, and availability of work. Our Client does 

not consider these items weigh in favour of a decision to maintain your ongoing 

employment, and for this reason, and those set out above, your employment will 

be terminated effective the date of this correspondence. 

 

Next Steps 








[2023] FWC 1927 

 

21 

20. Following the termination of your employment, you will be paid: 

a. The applicable notice period; 

b. Your accrued but untaken statutory annual leave entitlements; and 

c. Unpaid wages at the date of this letter. 

21. These amounts will be subject to taxation at preferential rates, and the final 

amount will be paid into your bank account in due course together with applicable 

superannuation. 

 

Post-Employment Obligations 

22. As you are aware, you are required to comply with your ongoing obligations to 

our Client regarding privacy and confidentiality under the relevant law, and your 

employment contract. In these circumstances, our Client directs you to destroy or 

otherwise delete any further photographs of confidential information within your 

possession. 

 

Property 

23. It is requested that you return all our Client’s property currently in your 

possession, including: 

a. Any documents; 

b. Any keys and access cards; and 

c. Any other property that remains in your possession. 

 

A Way Forward 

Should you have any further questions or queries please do not hesitate to contact 

Cameron Niven, Senior Lawyer, on …21” 

 

[31] The Union and the Applicant were taken by surprise when the Respondent’s 

representative moved to terminate the Applicant’s employment without notification of this 

process, on the basis of the Union’s short response. 

 

Witnesses 

 

[32] The Applicant provided her evidence and Ms Annette Rose, Director and Ms Carlita 

Rose, Operations Manager provided evidence on behalf of the Respondent. All witnesses were 

cross examined at the hearing. 

 

Submissions 

 

[33] Prior to the hearing, directions had been set for the filing of evidence and submissions. 

Accordingly, the parties filed their material. By consent, directions were set for written final 

submissions after the hearing, and a further extension was sought and granted by consent, to 

accommodate a change of personnel in the Respondent’s representative. 

 

SUMMARY OF THE EVIDENCE AND SUBMISSIONS 

 

[34] Further to the matters set out in the background above, parties made the following 

submissions. 

 








[2023] FWC 1927 

 

22 

Threshold issue – Allegations leading to termination 

 

[35] The Applicant submitted firstly that the allegations the Respondent should be allowed 

to rely on for her termination were only twofold, outlined in the show cause letter of 19 August 

2022 and the termination letter of 31 August 2022 as: 

 

a.  ‘wilfully or deliberately failed to attend the Meeting and have not provided a 

reason for same’ (‘non-attendance at meeting’) 

 

b. ‘having inappropriately disclosed the confidential information for an improper 

purpose without our Client’s consent to Mr Reed-Banyard’ (‘disclosing 

confidential information’) 

 

[36] The Respondent confirmed that the termination of employment was based on the prior 

allegations and warning issued on 10 August 2022, in addition to the allegations set out in the 

Show Cause and termination letters. The prior warning was issued for:  

 

a. [being] disrespectful to another staff member, used a rude tone and were 

insubordinate in your conduct (‘inappropriate interaction’). 

 

b. fail[ing] to report a NDIS Participants’ conduct in accordance with the 

Respondent’s policies (‘medication incident’) 

 

[37] The Respondent submitted that they had determined to issue a warning in response to 

the Applicant’s serious misconduct, as the most appropriate outcome instead of termination of 

the Applicant’s employment. The Respondent resiled from the termination due to the 

circumstances of the Applicant’s pregnancy.22 The Respondent further set out that disclosing 

confidential information was a significantly serious breach of company policy. The policy was 

in place to protect the clients and the business and compliance with which was mandatory. The 

Respondent also set out that non-attendance at the meeting on its own was not sufficient to 

justify termination, however, when viewed collectively with the issue of the breach of 

confidentiality, and in consideration of the matters relevant to the prior warning, the situation 

justified the termination of the Applicant’s employment.23 

 

[38] The Applicant argued that the inappropriate interaction with the manager, and the 

medication incident leading to the warning, had not been referred to as further allegations in 

the Show Cause process leading to the termination in the Respondent’s correspondence of 19 

August 2022 or 31 August 2022, merely as ‘background’ leading to the termination. It was 

submitted that they could not be relied on in the valid reasons for termination. The Applicant 

submitted that these allegations could not be re-enlivened to provide more reasons for 

termination, when the matter had already been determined, and a warning issued.24 However it 

was clear that all of the disciplinary matters were relevant, as referred to in the further Show 

Cause correspondence, and all of the allegations had been addressed in both parties’ materials 

for the unfair dismissal hearing. 

 

[39] At the hearing, parties made oral submissions on this issue of the reliance on prior 

warnings, to ensure clarity in how the proceedings progressed. Reference was made to the case 








[2023] FWC 1927 

 

23 

of Newton v Toll Transport25 and parties were provided a short adjournment to consider the 

case and applicability to these facts.  

 

[40] Upon further submissions of both parties, it was confirmed that the aggregate of the 

allegations including the prior conduct was relevant to the termination and would be dealt with 

accordingly. Further, it was determined that this clarification did not provide any prejudice as 

the parties had addressed all of these disciplinary matters in terms of the fairness of the 

termination.  

 

SUMMARY OF APPLICANT’S SUBMISSIONS AND EVIDENCE 

 

[41] In addition to the matters set out above, in relation to her application for an unfair 

dismissal remedy, the Applicant with her representative, provided evidence and written 

submissions, which outlined the chronology of events leading to termination. The Applicant 

alleged her dismissal was unfair because it was not for a valid reason and was disproportionate 

to the conduct alleged. Further, it was argued that the dismissal was harsh because of her 

economic and personal circumstances being 6 months pregnant at the time of dismissal. The 

Applicant submitted that very little, if any consideration was given to the mitigating 

circumstances that she informed the Respondent of, and that her personal circumstances, of her 

pregnancy, made the dismissal harsh. 

 

[42] With regard to the allegation that she had failed to follow a lawful and reasonable 

direction in not attending the meeting on 8 August 2022, the Applicant submitted her conduct 

was not ‘wilful or deliberate’ as alleged, but the result of a miscommunication and lack of 

clarity in the correspondence between her AWU representative and Ms Carlita Rose of the 

Respondent on the morning in question.26 The Applicant argued it could not therefore be 

considered serious misconduct without the requisite intent.27 The Applicant stated that the 

reason for her non-attendance was formally provided to the Respondent in correspondence on 

her behalf (from the AWU) on 26 August 2022. However, the Respondent ought also to have 

been aware of the mitigating circumstances through the email correspondence prior to and on 

the morning of 8 August 2022, up to and proceeding past the scheduled meeting time.28 

 

[43] The Applicant submitted as further mitigating circumstances, that when the 

Respondent’s alleged lack of procedural fairness was raised with the Respondent during the 

disciplinary process it was not responded to or considered, in determining her dismissal.29 The 

Respondent stated all of the circumstances were considered when determining the matter. 

 

[44] With regard to the allegation of sharing confidential client information, the Applicant 

submitted that the entire factual matrix of the matter must be considered,30 so that her actions 

are contextualised. The Applicant submitted she took the photographs of the incident report, as 

she was concerned the NDIS client might make a complaint, and she wanted her own copy of 

the record made contemporaneously. When the Respondent alleged that she had not followed 

their policies and procedures leading to the incident report and the submission of such, she 

provided the photographs to the AWU, for their assistance to provide a response.31 

 

[45] The Applicant referred to the case of Ariana Goss v Health Generation Pty Ltd32 

(‘Goss’) and drew points of comparison to her case. Specifically, in that case it was found that 

during a disciplinary process, a small circle of individuals including close family and those 








[2023] FWC 1927 

 

24 

whom advice was sought from (including legal representatives), may be aware of the subject 

matter and process.33 Deputy President Clancy in that case went on to suggest that to expect 

otherwise is not reasonable. Whilst this case is acknowledged, it does not justify a breach of 

policy in copying documents without permission. 

 

[46] The Applicant submitted the photographs were in her possession only. However, she 

does set out that they were then provided to her union representative directly, then supplied 

back to the Respondent in her response. The Applicant stated that no other parties had access 

to the photographs at any time prior to her dismissal and it is therefore not a valid reason for 

dismissal.34 The Respondent stated that this argument overlooked that the copying and sharing 

the documents in the Respondent’s operation, significantly exposes their operations.   

 

[47] The Applicant also made reference to the case of Samuel O’Leary v Huntsman Pty Ltd 

T/A the Archer Hotel35 where the Applicant had disclosed information, but it was found to have 

had no impact on the confidentiality of the information. The Applicant submitted the 

circumstances are analogous as information was provided to a representative and there has been 

no severe impact to the Respondent. 

 

[48] The Applicant also addressed a range of issues with the disciplinary process including:36 

• the Applicant had been employed by the Respondent for over 3 years and had only had 

one prior warning during that time; 

• the Applicant was not offered EAP services during the disciplinary or Show Cause 

processes and submitted she felt unsupported; 

• the proposed disciplinary action was not particularised in the Show Cause 

correspondence of 19 August 2022, so the Applicant was not aware or informed that 

termination was a possible outcome. 

 

[49] The Applicant refuted the Respondent’s reliance on the case of Grant v BHP Coal Pty 

Ltd37 as the facts were argued to be distinguishable. The Applicant’s representative argued that 

in Grant, the Applicant ceased to communicate with the Respondent regarding the disciplinary 

process, which the Union argued was not the case here, stating that there was ‘consistent and 

clear contact between the parties’ in this case.38 In this matter, it was the Applicant’s non-

compliance with a lawful and reasonable direction to attend the meeting. 

 

SUMMARY OF RESPONDENT’S SUBMISSIONS AND EVIDENCE 

 

[50] In addition to the material set out in the background, the Respondent submitted that the 

termination was for a valid reason and was not harsh, unjust or unreasonable. In summary, the 

Respondent submitted that all of the facts of the case must be considered including the nature 

of the Respondent’s operations. They submitted that each allegation in the disciplinary process 

should not be viewed in isolation, as the conduct as a whole is what led the Respondent to make 

the decision to terminate.39 

 

[51] With regard to the direction to the Applicant to attend the meeting on 8 August 2022, it 

was argued that this was a lawful and reasonable direction, and failing to comply with such can 

form a valid reason for dismissal.40 Specific reference and similarities were drawn to the case 

of Grant v BHP Coal Ltd41 where the Applicant refused the employer’s direction to be involved 

in an independent medical assessment and workplace disciplinary meeting. The Respondent 








[2023] FWC 1927 

 

25 

submitted that the conduct of the Applicant in that case, was the conduct that the Respondent 

‘took issue with’ here. 42  

 

[52] Further, the Respondent went on to note, that if the non-attendance at the meeting was 

not considered to be wilful and deliberate, with reference to Purves v Queensland Rail43 that 

they characterised the Applicant’s failure to attend the meeting as “accidental, inadvertent or 

careless.” Therefore, they submitted that on the current facts in line with that case, this also 

represented a valid reason for dismissal. 

 

[53] With regard to the incident of copying the Respondent’s confidential information, the 

Respondent submitted that the case of Goss can be distinguished from the present case for 

several reasons; the most relevant being that in this case the Applicant, rather than her support 

person disclosed the confidential information and that the confidential information was not 

requested from the Respondent, nor was it disclosed as part of the investigation. The 

Respondent submitted this breach of confidentiality was a clear and serious breach of their 

internal policies (the Confidentiality Agreement and Confidentiality Memo) in addition to their 

legislative obligation to maintain the privacy of information to NDIS clients under the National 

Disability Insurance Scheme Act 2013 (Cth).44  

 

[54] The Respondent submitted that had the documentation been requested, rather than 

removed, the provision of the ‘reasonably necessary’ information would have been considered 

to ensure procedural fairness. The Respondent outlined that had they considered the material 

necessary to disclose for the investigation, a summary of such, or a redacted version, rather than 

the document itself with client information, would have been sufficient.45 They submitted that 

the Applicant’s collection and possession of the information was not for a reason approved or 

consented to by the Respondent and referred to the Applicant’s conduct as “surreptitious”46 

Further, they submitted that the conduct breached their trust and confidence in the Applicant. 

 

[55] The Respondent argued that the Applicant’s act of sharing the images of the Incident 

Reports was conduct that amounts to an intention not to be bound by the employment contract 

and the obligations to the Respondent and was incompatible with the faithful performance of 

her duties.47 

 

[56] The Respondent submitted that none of the identified mitigating factors relied on by the 

Applicant altered the decision to terminate the Applicant’s employment and that it was 

proportionate to the aggregate of the Applicant’s conduct.48 Further, they submitted that the 

decision to only issue a warning for the prior conduct of allegedly failing to report and properly 

document the medication incident (though they considered it serious misconduct), was due to 

the Respondent taking the Applicant’s pregnancy into account. Noting this, they submitted that 

the other incidents of serious misconduct meant that further concessions could not be made due 

to the Applicant’s pregnancy a second time.49 

 

[57] As to remedy, the Respondent submitted that reinstatement was not practical or 

appropriate due to the lack of trust and confidence the Respondent had, in the Applicant to 

perform her duties to a reliable and adequate standard. The Respondent did not consider the 

dismissal was harsh, unjust or unreasonable; therefore, they argued no corresponding remedy 

was warranted. 

 








[2023] FWC 1927 

 

26 

CONSIDERATION 

 

Was the dismissal harsh, unjust or unreasonable?  

 

387(a) whether there was a valid reason for the dismissal related to the person’s capacity or 

conduct (including its effect on the safety and welfare of other employees); 

 

[58] In order to be a valid reason, the reason for the dismissal should be “sound, defensible 

or well founded”50 and should not be “capricious, fanciful, spiteful or prejudiced.”51  

 

[59] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied 

that the conduct occurred and justified termination.52 I am satisfied that each piece of the 

conduct complained of, occurred. The Applicant's non-attendance at the meeting, the 

inappropriate interaction with a staff member, the copying and sharing of confidential 

information and the breach of the medication policy. These matters form a valid reason for the 

termination. However, it recognised that the reliance on the non-attendance at the meeting is 

affected by the final exchange of emails. In relation to that meeting, the exchange of emails 

between the Applicant's representative and the employer extended past the meeting start time. 

This reduced the enforceability of the Applicant's non-compliance with the Respondent's 

direction to attend the meeting. Whilst the Respondent did not resile from the direction to the 

Applicant to attend, and the Applicant did not confirm her non-attendance, her representative 

was exchanging emails regarding the meeting, as set out, beyond the commencement time of 

the meeting. In any of the emails on the morning of the meeting, the employer did not retract 

the direction to the employee attend. However, it is recognised that in terms of procedure, the 

emails on that morning, mitigate against the clarity of the lawful and reasonable direction to 

attend. Taking that into account, the combined events still form a valid reason for the dismissal. 

 

[60] The Respondent alleged that the Applicant had engaged in serious misconduct twice in 

the course of her employment. Once in failing to follow the correct policies and procedures 

during the medication incident, and the second time in sharing confidential information with a 

third party. I agree that in the nature of the employer’ s operations, the breaches of policy 

represented serious misconduct. Compliance with these procedures for an employee with the 

Applicant's experience and training was straightforward, and the importance of which was 

clearly understood. Serious misconduct is defined in the Fair Work Regulations 2009 (Cth) 

(‘The Regulations’): 

 

1.07 Meaning of serious misconduct 

 

(1) For the definition of serious misconduct in section 12 of the Act, serious 

misconduct has its ordinary meaning. 

(2) For subregulation (1), conduct that is serious misconduct includes both of the 

following: 

(a) wilful or deliberate behaviour by an employee that is inconsistent with the 

continuation of the contract of employment; 

(b) conduct that causes serious and imminent risk to: 

(i) the health or safety of a person; or 

(ii) the reputation, viability or profitability of the employer’s business. 








[2023] FWC 1927 

 

27 

(3) For subregulation (1), conduct that is serious misconduct includes each of the 

following: 

(a) the employee, in the course of the employee’s employment, engaging in: 

(i) theft; or 

(ii) fraud; or 

(iii)assault; 

(b) the employee being intoxicated at work; 

(c) the employee refusing to carry out a lawful and reasonable instruction 

that is consistent with the employee’s contract of employment. 

(Emphasis added) 

 

[61] As set out previously, it was confirmed that the Respondent was able to have regard to 

the totality of the Applicant’s relevant prior conduct and warnings in determining if the 

dismissal of her employment was reasonable. In Newton v Toll Transport53 it was established 

that “the Commission is required to conduct an objective analysis of all relevant facts in 

determining – on the basis of the evidence in the proceedings before it – whether there was a 

valid reason to dismiss.” Further, in Virgin Australia Airlines Pty Ltd v Blackburn54 it was 

summarised that prior warnings form part of the factual matrix that existed at the time of the 

dismissal and the Commission must consider them when determining whether a valid reason 

existed for the termination. This is so even if those facts do not appear explicitly in the Show 

Cause notice. However, in this matter, the Applicant was aware that the Respondent was 

proceeding based on all of the conduct. This was confirmed again by both representatives 

during the proceedings. In addition, all of these disciplinary matters were addressed by both 

parties in their materials for the hearing.  

 

[62] With regard to the medication incident and breach of policy, for which a warning was 

issued, the Respondent stated this was serious misconduct under 1.07(2)(b)(i) and (ii) due to 

the risk to the health and safety to the client involved. A finding of non-compliance with the 

correct policies and procedures jeopardised the business license to operate in this industry and 

put the patient’s health at risk in not contacting 13HEALTH. It also potentially affected the 

staff caring for the client without him having received the correct medication. 

 

[63]  With regard to the deliberate copying of the Respondent’s documents containing client 

information, the Respondent submitted this was serious misconduct under 1.07(2)(b)(ii) due to 

the effect of a breach of confidentiality and/or the breach of privacy of their client’s information 

to a third party. The conduct breached the Respondent’s obligations to their NDIS clients, in 

relation to maintaining the custody of the documents, and the Applicant’s employment 

obligations as set out in their confidentiality policies. 

 

Failure to follow a lawful and reasonable direction 

 

[64] In the case of Grant v BHP Coal Ltd55 (‘Grant’) it was found,56 and upheld on appeal57 

that failure to follow a lawful and reasonable direction can amount to a valid reason for 

dismissal. The Respondent placed reliance on this case in arguing that the direction to attend 

the meeting to discuss reasonable concerns was lawful and reasonable. I adopt this view of the 

circumstances against this case. The Respondent had a right to direct her attendance and to 

expect such. The Grant case involved the direction to attend an Independent Medical 








[2023] FWC 1927 

 

28 

Examination, however the case authority is applicable to the issuing of a lawful and reasonable 

direction to attend a meeting as per the current circumstances.  

 

[65] It is recognised that there was consistent contact from the Respondent in relation to the 

forthcoming meeting. The Applicant confirmed attendance at the meeting and received the 

additional information as requested but failed to attend. The case of Grant emphasised the right 

of the employer to expect adherence to a lawful and reasonable direction to attend a meeting. 

 

[66] The Applicant did not refute that the direction given to attend the meeting was lawful 

and reasonable, instead her representative submitted that mitigating factors should be taken into 

account that led to the Applicant’s non-attendance at the meeting. While the exchange of emails 

on the morning of the meeting, as instigated by the union, did not remove the Respondent’s 

expectation of the Applicant’s attendance, they provided evidence of the fact that the 

arrangements for the meeting in the Union’s view had not been fully settled by the morning of 

8 August 2022. 

 

[67] The email exchanges however must be considered in the context of the Applicant, 

originally accepting the meeting invitation, her union representative seeking further information 

for the meeting, and the Employer providing this and then the Union at the last opportunity 

agitating against the Monday meeting time with the employer and then both the Applicant and 

the Union not attending the meeting without formal notification to the employer except for the 

email exchanges on the morning of and at the time of the meeting. 

 

[68] The Applicant's union representative had contacted the Respondent on the morning of 

Sunday 7 August 2022 to alter the Monday 8 August 2022 meeting time, and to request further 

particulars and to extend the timeline for responses. The Respondent had already altered the 

meeting time twice for the Union and provided two emails with relevant details of the reasons. 

The Respondent did not amend the Monday 8 August 2022 meeting time. However, the 

Respondent’s email on the prior Friday 5 August 2022 regarding the Monday morning meeting 

concludes with the opportunity for the Applicant and/or the Union to propose another meeting 

time.  

 

[69] The Applicant had originally confirmed attendance at the meeting on 4 August 2022. 

On 5 August 2022 further information was sent for the meeting. That email asked the Applicant 

to confirm attendance by 5:00pm that same day, again for that Monday 8 August 2022 meeting. 

The Applicant set out that she did not see this email on the Friday until after 6:00pm on Friday 

5 August and therefore did not provide further confirmation of her attendance at the Monday 

meeting, nor did she recant the earlier confirmation. 

 

[70] However, the fact that the meeting status was unclear such that the Respondent 

considered it necessary to seek further confirmation on Friday 5 August 2022, and for the Union 

to raise the meeting on the day prior and in the early hours of 8 August 2022, only a few hours 

before it was due to commence, provides context to the Applicant’s non-attendance. It is clear 

that the Applicant considered that in the time leading up to the meeting, for reasons of 

procedural fairness, the meeting may have been postponed. The non-attendance of the 

Applicant cannot be completely excused given there was no confirmation of such. The meeting 

was affected by uncertainty in terms of being the subject to the email exchanges on the Monday 

morning. 








[2023] FWC 1927 

 

29 

 

[71] What is understandable is the Respondent’s frustration with the arrangements for the 

meeting and it subsequently not going ahead, and that the exchanges regarding the Applicant, 

were increasingly time-consuming without the finalisation of discussions of any of the matters 

relevant to the Applicant. Given the manager was one of only two managers undertaking all of 

these duties, subsequent to this, the Respondent contracted this matter to their legal advisor. 

 

[72] In this sense, the facts of this case are distinguishable from those in Grant, insofar as 

they relate to a refusal to follow a lawful and reasonable direction. Grant involved a willful 

election not to follow the relevant direction.58 However, the facts of the present case do not 

demonstrate similar conduct. While it is correct to say that the Applicant ultimately failed to 

carry out the Respondent’s lawful and reasonable direction, this failure was not the product of 

an Applicant who “willfully elected” to disregard the direction. As established earlier, there 

was continued uncertainty surrounding the meeting’s scheduling that interfered with the 

direction to attend. The Applicant however did not also make her non-attendance clear. 

 

[73] The important concerns to be discussed at the meeting were the earlier allegations 

outlined above which included a failure to follow policies and procedures during a medication 

incident, and issues of inappropriate communication with management. The allegations were 

clearly provided, and the Respondent considered the substantiation of the medication incident 

alone to be serious misconduct, but in recognition of the Applicant’s pregnancy, downgraded 

the discipline and issued a warning instead.59 

 

[74] The Applicant’s union representative sought that the warning issued regarding the 

failure to follow policies and procedures for the medication incident, be reconsidered, and 

provided further information in response to the allegation, which the Union stated, if it was 

properly considered, ‘that neither allegation can be substantiated.’60 It is noted that the 

information provided on the Applicant’s behalf at this juncture was all known to the Applicant 

at the time of the scheduled meeting, and therefore could and should have been provided at the 

scheduled meeting. Accordingly, the clarification even when provided did not remedy the 

disciplinary matters. Attached to the Union’s response was also the confidential information of 

concern, which was shared with the Union, which is further dealt with below. 

 

[75] Whilst the further disciplinary matters are considered below, the entire factual matrix of 

the conduct was sufficient to justify the decision to dismiss the Applicant.61 The Applicant’s 

length of service, her pregnancy and the effect of the termination were taken into account. The 

Respondent submitted that the Applicant’s conduct was willful and deliberate, however in the 

alternative, that a valid reason could still be made out on ‘accidental, inadvertent or careless 

conduct.’62 

 

[76] An assessment of the seriousness of the conduct is required in order to determine if the 

dismissal was fair.63 The Applicant submitted the conduct in not attending the meeting without 

notice was not serious but formed part of the reasons. However, it was taken into account that 

she had provided after the fact, her response explaining this, deeming it a ‘miscommunication.’ 

The Applicant had agreed to the meeting. The Union then on Sunday sought a delay and 

continued to pursue this right up until the meeting time without it at any time being granted by 

the Respondent. Nevertheless, this meant that, up to the meeting’s commencement, there were 

questions over the meeting’s status. The Respondent was clear that the Applicant’s failure to 








[2023] FWC 1927 

 

30 

follow the lawful and reasonable direction to attend the meeting, forms part of the consideration 

of the full facts of the Applicant’s conduct when considering the fairness of the dismissal. 

However, I consider the Applicant’s failure to follow the direction, while not fully excused, 

was the product of, at least in some part, a procedural flaw. This matter could have been 

remedied by holding the meeting at a later time. 

 

Disclosure of confidential information 

 

[77] As set out, in the course of the disciplinary process for the medication incident, the 

Applicant provided screenshots of the medication incident reports to her union representative 

and returned them as attachments to the Show Cause response provided back to the Respondent 

on 12 August 2022. The provision of these documents in this way by the Applicant, 

demonstrated a disregard for the Respondent’s required compliance with the policies as set out 

and elevated the serious issues and breaches around handling confidential information.  

 

[78] The Respondent submitted that the disclosure was in breach of several items, including 

the Respondent’s internal policies and procedures (‘Privacy and Confidentiality Memorandum’ 

and the ‘Privacy and Confidentiality Agreement’) in addition to the Respondent’s legislative 

obligations under the National Disability Insurance Scheme Act 2013 (Cth), with specific 

reference to section 4(10), which states “People with disability should have their privacy and 

dignity respected.” 

 

[79] Ms Annette Rose, CEO of the Respondent was questioned about the alleged breaches at 

the hearing and reinforced the Respondent’s obligation of confidentiality to clients in their care, 

and its importance in the viability of the business: 

 

“…and the impact of that, getting in the hands of anybody else, you know, is 

detrimental.  We could lose our licencing to trade over…something that could be 

considered a breach of privacy, particularly…around these vulnerable people.”64 

 

“…we can't allow one little bit when it comes to confidentiality, particularly around our 

participants.  You know, we're bound by safeguard measures.  It doesn't matter who or 

how many people.  An email could accidentally go to one other person, but the impact 

could be great… this is a big issue when it comes to confidentiality.  It shouldn't have 

gone anywhere.  It shouldn't even be something that the employee had taken for their 

own purposes.”65 

 

“…at the end of the day I have to make a big stand; confidentiality and privacy is one 

of our biggest [pillars].  We can lose our registration, and it has a big impact on our 

business if anything private and confidential - especially when it comes to NDIS 

participants and vulnerable people.  It is an absolute no-no, no matter what.”66 

 

“So our policies and procedures do state that employees are not to take any 

documentation that doesn't relate to them or belong to them, particularly in around any 

participants that we have.  This is all around the safeguard measures that we come 

from.  We have to have consent from participants for many things that we do and 

conduct, including who we provide information to, who the participant or their 

decision-makers agree to us sharing information with.  Now, that's at a company 








[2023] FWC 1927 

 

31 

level.  Our support workers, they know that they're not to disclose.  They cannot take 

any personal information or client information at all without express permission from 

management.”67 

 

[80] At no time did the Applicant register her acknowledgement of the seriousness of her 

conduct, in terms of the ramifications for the business , or for their clients. The Respondent 

submitted that despite the fact that the Applicant only had one prior warning, this prior warning 

was for serious misconduct and had been downgraded to a warning from a more serious 

disciplinary censure available to the employer. However, due to the Respondent taking into 

account her pregnancy, the severity of the discipline was reduced.68 When the issue of the 

breach of confidentiality arose in addition to the prior warning, Ms Rose stated: 

 

“…The confidentiality thing really was the one that I felt that I needed to honour.  It's a 

big deal in our industry, and it's something that – you know, it's almost we've got to take 

a stand for people that are vulnerable, and we've got to protect them.  It's, you know – 

that's really where my stance is.  Our participants come first.  And it's the same ability 

that our business means that, you know, we have to be strong in what's important.”69 

 

“…I had to make a stand for the organisation, for the participants.  That's really where 

my main decision came from.  It came from a safeguard measure.  No matter who and 

what, we have to protect the vulnerable people, and that is really what was the tipping 

edge for me.”70 

 

[81] Further to this, the Employer emphasised the implications for the Respondent’s 

continued recognition to operate the core service, is put at risk, against the conduct. 

 

[82] The Applicant’s union representative referred to several cases in support of their 

position that the disclosure of the information to the Union was not sufficient to constitute a 

valid reason for dismissal. The Respondent in this matter relied on more than this one matter 

for the termination. In the case of Goss v Health Generation,71 it was stated: 

 

“I am satisfied the Direction that Ms Goss treat the investigation as confidential was 

lawful but I am not persuaded it was reasonable having regard to the circumstances of 

this case. It was apparent from the outset that both parties had engaged lawyers and 

wanted the benefit of legal advice. I consider it neither reasonable nor realistic to have 

required Ms Goss to elect to confide in either one support person or her legal advisers 

acting in the capacity of support person(s), but not both. Assume Ms Goss had, for 

example, attended the investigation interview with a support person other than one of 

her lawyers. It would have been unreasonable for the Respondent to then insist that she 

not disclose what transpired at the interview to her lawyers in the event she felt the need 

to subsequently obtain their advice with regard to matters that may have arisen or in 

relation to her ongoing employment. Similarly, I consider it is manifestly unreasonable 

and unrealistic to seek to insist that a person only consult with their lawyers but not a 

spouse, de facto partner or other individual upon whom they rely for advice and 

emotional support. Litigious and potentially litigious matters are emotionally draining 

and require consideration of complex issues. Decisions of significance need to be made. 

To have expected an individual to operate within the type of solitary vacuum the 

Respondent appears to have insisted upon was unreasonable. The reality is that with a 








[2023] FWC 1927 

 

32 

disciplinary process or an investigation carried out by an external adviser, a circle of 

individuals may be party to the subject matter and matters arising.”72 

 

“This is the key. An individual brought into a circle of confidentiality must respect that 

privilege and behave appropriately…but I am not persuaded her disclosure of confidential 

information to [her support person] in all the circumstances of this case…constituted a valid 

reason for the termination of her employment.”73 

(Emphasis added) 

 

[83] This case is noted in terms of its circumstances, however, it is distinguishable from the 

present facts, given that the Applicant was not being denied the ability to discuss the details of 

the incident with her representative. The copies of the records were not necessary to allow for 

appropriate discussions to occur. I also accept the Respondent’s submission that the Applicant 

had other legitimate means to access relevant information on this incident report if required, as 

part of the disciplinary process. The Applicant could have received an appropriate version of 

the relevant document openly, through proper channels with appropriate private information 

redacted. The case of Goss can be separated from this case, as in the present case, the Applicant 

was not merely sharing general details of an incident with her representative or a summary of 

discussions that took place at a meeting, but in fact shared an unredacted copy of an incident 

report containing protected confidential information; the client’s name, the address of the 

residential care facility and the client’s medication, and the details of the incident, breaching 

the medication policy. By sharing the original document, the Applicant still could not justify 

on these records that she had complied with the required organisation protocol in terms of 

contacting 13HEALTH. 

 

[84] There is no assertion on the facts known to the Respondent, that the document was 

shared wider than the Applicant and her union representative, however as outlined by Ms Rose, 

even this disclosure is an operational breach and has the potential to impact the reputation and 

viability of the business, in terms of NDIS obligations and because clients and their families 

may lose the required trust and confidence in the operations. The provision of the copies of the 

document back to the Employer provided evidence of the Applicant’s lack of awareness of her 

required conduct and obligations. 

 

[85] The Applicant’s union representative also referred to the case of O’Leary v Huntsman 

Pty Ltd T/A the Archer Hotel74where it was found that: 

 

“I find that Mr O’Leary had a conversation with Mr Austin about his dispute with the 

board as a Director whilst Mr Austin was an employee of the Respondent. This is a 

breach of confidentiality for the period in which Mr Austin was also an employee, and 

is not explained by the location of the discussion being “off the premises.” However Mr 

Austin had a duty of confidentiality as a lawyer and there is no suggestion that this 

obligation was breached or had an adverse impact on Mr Austin’s employment with the 

Hotel. I find that the breach occurred in a single event and was minor.”75 

 

“Whilst I have found Mr O‘Leary breached his obligation of confidentiality, the 

circumstances suggest that it is a technical breach, with no impact on the confidentiality 

of  the information or the employment relationship of Mr Austin. In these circumstances 

I do not find this conduct is a valid reason for the dismissal.”76 








[2023] FWC 1927 

 

33 

(Emphasis added) 

 

[86] The Applicant’s representative placed reliance on the single nature of the breach in the 

present case, to suggest that the breach was not sufficient enough to warrant termination of 

employment, (in conjunction with the Goss case); the information here being shared with a 

representative, not a lay person. While I accept this was a single event, I do not accept that it 

was a minor breach, in contrast to O’Leary. The difference being specifically the nature of the 

information shared in terms of the potential consequences for the Respondent, for such a data 

breach in their particular industry. The Applicant had a knowledge of this given her 

qualifications and experience in the Respondent’s operations. It is a fundamental obligation of 

her role and she had signed the ‘Privacy and Confidentiality Memorandum’ and the ‘Privacy 

and Confidentiality Agreement’ of the Respondent which set this out. Her conduct was directly 

in breach of this, and there was no acknowledgement of such. 

 

[87] The Union’s main response to this allegation, contained in the response letter dated 26 

August 2022 was: 

 

“We understand that Ms Sharma took the photographs in question (of two incident 

reports) at the time of completing these reports. We further understand that the only 

reason our member did so was for her own protection in the event that the NDIS 

Participant raised concerns about her carrying out her duties.”77 

 

[88] There is no doubt the Applicant took the photographs of the incident report. She states 

this was because she was suspicious of the Respondent and considered she may need to protect 

herself if there was a complaint made by an NDIS client. However, there was no justification 

for this position on the part of the Applicant provided in the evidence, or in the history of the 

employment relationship. The Applicant’s evidence did not demonstrate her stated position that 

she had contacted 13HEALTH. The provision of the reports showed complete disregard for the 

Employer’s obligations to maintain the custody of the information. Had a complaint been made 

about the Applicant, and the appropriate reports been completed by the Applicant, the Union 

could have sought those records as part of a discovery or investigation process. These 

documents need only then have been provided in a protective, redacted format. 

 

[89] Taking photos of records, which included the client’s name and medical information, 

was prohibited by the Respondent’s confidentiality policy. The Applicant via her certification 

was well aware of this. The Respondent had an operational and policy obligation to maintain 

confidentiality for their clients, and by the Applicant’s action, she was in breach of her 

employment contract and the Respondent’s operating obligations. The Applicant also showed 

no remorse for her conduct and there was no assurance or certainty conveyed (in her written 

response nor in her later evidence) that the Applicant would in future maintain compliance with 

the policies. 

 

[90] No additional reasonable explanation was provided in support of the Applicant’s 

assertion of her wariness of the Respondent, as a reason for the conduct. In the Applicant’s 

evidence and submissions, this was not expanded on any further to provide a basis for the 

Applicant to have formed a view that she would need to retain job information for her 

protection. The Applicant’s actions were indicative of an unsubstantiated lack of trust and 

confidence in the Respondent. There were no grounds to suggest that there was a need for the 








[2023] FWC 1927 

 

34 

Applicant’s conduct in copying the documents. There was no precursor event that has been 

referred to where the Respondent isolated the Applicant and sought that she defend a complaint 

on her own. Had there been a complaint, the Respondent as a business, would also have had to 

defend this, and therefore the parties’ interests may have been aligned. The Applicant’s position 

demonstrated the lack of trust and confidence, the Respondent could have in the Applicant. 

 

[91] The Applicant argued she was attempting to convey the relevant information to the 

Union to assist with her disciplinary matter. However, it was improper and an unnecessary 

breach of her duty to the Respondent and to the client to share the photographs of the documents 

with an external third party in complete breach of policy. Due to the Applicant’s conduct in the 

unnecessary breach of the confidentiality policy, the Respondent cannot be confident that no 

other breaches had or would occur. The operations of disability care require confidence in 

compliance by employees, as set out by the CEO in her evidence. The business, the client’s and 

their families require trust in care providers, and the breach is not acceptable for the 

Respondent. 

 

[92] The case of Selvachardran v Peteron Plastics Pty Ltd78 set out that the right to terminate: 

 

“in broad terms, the right is limited to cases where the employer is able to satisfy the 

court of a valid reason or valid reasons for terminating the employment connected with 

the employee’s capacity or performance based on the operational requirements of the 

employer” 

 

[93] This case emphasises the required capacity and conduct in the operational work 

requirements of the employer. It is necessary to refer to the services provided by the employer, 

which were within the heavily regulated environment of the NDIS, significant breaches of 

which makes the provision of the employer’s service vulnerable. The conduct of the 

unnecessary sharing of unredacted patient documents, taken in combination with the breach 

associated with the medication incident, the complaints of the Applicant's interaction with 

another staff member, and her non-attendance at the meeting, repudiated the Applicant’s 

capacity and conduct obligations. This was in an environment where the employer required 

employees to have appropriate exchanges with staff and trust and confidence to be able to be 

placed on the employee, to support the employer’s statutory obligations. There was a 

requirement on the employee to work independently, in an appropriate manner, observing the 

conduct and compliance requirements of the employer, in operating in the NDIS and providing 

the required care in this environment.  

 

[94] I therefore find that the Applicant’s sharing of confidential information with a third party 

not authorised by the Respondent, (and her continued justification of it despite the required 

compliance), is serious misconduct. This demonstrated the ongoing difficulty in managing the 

Applicant and placed the employer’s NDIS business and reputation in jeopardy.  

 

Prior conduct 

 

[95] The Respondent’s reliance on these matters as a valid reason (further addressed below) 

for the termination of employment, is sound defensible and well-founded, when considering 

the full circumstances of the conduct and the employment. 

 








[2023] FWC 1927 

 

35 

[96] The Applicant did not resile from the alleged interaction with management that formed 

a previous allegation. There was reference to a shift change issue leading into the material 

events. It is noted that the Applicant was flexible in her availability and met the requirements 

of the Respondent to complete her contracted hours.  However, the nature of the belligerent 

interaction was unacceptable. This type of behavior in the staff interaction was not warranted 

in the circumstances and is not consistent with the expectations of the disability care industry 

in which the parties were operating. The Respondent was within their rights to expect 

appropriate exchanges with staff and to require meeting attendance from the Applicant to 

discuss this conduct. There was no reasoning to justify the Applicant’s demeanor or 

engagement. 

 

[97] No weight is placed on the later provision of the certificates 3 and 4 as requested by the 

employer and set out in the initial allegations. This was resolved and the Union provided those 

certificates to the Respondent.  

 

[98] It was also as set out part of the valid reason that the Applicant had failed to follow the 

procedures of the Respondent in terms of documentation about medication on the incident 

report form, including the failure to report (and note such on the incident report form) to 

13HEALTH which led to the Respondent issuing a warning. Contrary to this, the Union stated 

the Applicant had attempted to call 13 HEALTH twice.79 Given the Respondent’s clarity of 

position on this matter, being that any attempt to contact 13HEALTH must be and was not 

recorded on the form. It is accepted that there was no evidence of such an attempt. It is again 

questionable why the Applicant and Union did not attend the meeting and provide this response 

and assurances of future compliance. This issue of staff compliance with the medication 

requirements and policies was a serious obligation for the Respondent. The relevant assurances 

of the employee to the employer were not provided. 

 

[99] It is noted however, that in relation to the Show Cause process the Respondent then went 

on to determine the overall disciplinary matter without a meeting with the Applicant, with no 

notice of such in terms of the procedure being observed. With all of the further opportunities 

(pursuant to the directions, and at hearing) to provide additional submissions, no further 

persuasive material was provided by the Applicant that undermined the initial warning applied, 

in relation to the allegations that were the subject of the meeting and the termination for a valid 

reason. However, matters of procedural fairness are set out further. 

 

[100] The CEO set out in her witness statement, the risks of failing to follow the Respondent’s 

internal procedures: 

 

“[12] Regarding the second allegation, Carlita provided me with the letter put to the 

Applicant, as well as incident report form and the relevant policies, which she had 

prepared in a bundle to provide the Applicant during the in-person meeting. It seemed 

clear to me the Applicant had not contacted 13HEALTH, which, in the circumstances, 

was essential. This process is in place to ensure the NDIS participants do not suffer any 

harm. A failure to observe this policy’s requirements is significant and puts the business 

at risk. 

 

[13] Relevantly, the risk is two-fold, being a risk of an NDIS participant suffering harm 

and the later issue which would arise, which would be a breach of duty of care issue 








[2023] FWC 1927 

 

36 

should something happen. These are not small matters, and I consider this oversight 

caused the business a significant risk.”80 

 

[101] In the further particulars provided by the Respondent on 5 August 2022, it was set out: 

 

“Your position requires you to meet a specific standard of care, specifically for, and 

when treating NDIS Participants. Crucial to this obligation is the management of drugs 

and other pharmaceuticals which are use within ActsCare as per health directions and 

NDIS Participant’s care plans. Your conduct, if substantiated, demonstrates an 

intention not to be legally bound by the terms of your employment contract, particularly 

in circumstances where you have failed to comply with a lawful and reasonable 

direction. This conduct can be categorised as serious misconduct under the Fair Work 

Regulations 2009 (Cth). 

 

Further, your conduct has the potential to expose ActsCare to a significant liability 

regarding the potential breach of duty of care of an NDIS Participant. This is serious 

matter to ActsCare given the nature of our business.”81 

(emphasis added) 

 

[102] The incident report form did not note any attempt by the Applicant to contact 

13HEALTH (as she had claimed), in breach of the Respondent’s policies. The Respondent’s 

determination to issue the level of a warning also took into account the Applicant’s pregnancy. 

The Applicant should have been well aware that her position was in jeopardy at this stage, and 

that there was a requirement on her part given her presumed focus on working up until the 

parental leave, to ensure adherence to the required policies. This did not occur, as per the further 

matters set out above that emerged. 

 

[103] The Applicant’s representative stated that the dismissal should be based on two 

allegations only, and that the dismissal was not proportionate to the two allegations set out in 

the Show Cause notice. The Union stated firstly, wilfully or deliberately failing to attend the 

meeting, and having not provided a reason for same and secondly, having inappropriately 

disclosed confidential information for an improper purpose without the Respondent's consent. 

The Applicant’s assessment of only these matters as being relevant to the dismissal is rejected. 

The termination of employment was reasonably based on the totality of the conduct; which 

included the consideration of the prior matters and relevant prior conduct (as per the Show 

Cause correspondence), and the allegations set out again in the termination letter. 82 However, 

procedural matters associated with these issues have been considered. 

 

[104] The gravity of the conduct and the proportionality of the dismissal decision to that 

conduct are important matters to be taken into account, and that it is well established that a 

dismissal may be harsh, unjust or unreasonable, notwithstanding that there is a valid reason for 

the dismissal.83 In all of the facts and circumstances, including the two instances of serious 

misconduct, the aggregate of all of the conduct provided a valid reason for the termination of 

the Applicant’s employment. However, all of the procedural flaws associated with the non-

attendance at the meeting of 8 August 2022 and the absence of a meeting in the second Show 

Cause process, without foreshadowing, this was the process make the termination unfair.  

 








[2023] FWC 1927 

 

37 

[105] In terms of the disciplinary outcome, the Applicant should have been aware of the 

seriousness of the issues arising in the employment relationship, based on the Respondent’s 

correspondence as follows: 

 

“The above allegations are serious, and if substantiated ActsCare will consider what, 

if any, disciplinary action is necessary.”84 

 

“Our Client appreciates Ms Sharma may be upset by the Allegation Letter and its 

contents and being provided with a formal warning for her conduct. Particularly as it 

was her colleague who took steps to identify her conduct to our Client. In these 

circumstances, any retaliatory or retributory conduct by Ms Sharma will not be 

entertained and will result in disciplinary action up to and potentially including 

termination of her employment.”85 

 

“The above allegations are serious, and if substantiated, our Client will consider what, 

if any, disciplinary action is necessary.”86 

(emphasis added) 

 

[106] However, the Applicant took no genuine steps on the evidence and responses she 

provided to the Respondent to allay the concerns of the Respondent, that she was committed to 

ensuring compliance with the policies moving forward. Further, no steps were taken in the 

response to the Show Cause notice to convey her understanding of the breach of policy and its 

consequences. No steps were taken to provide assurances to the Respondent to remedy the 

matters. Therefore, despite the absence of any explicit statement of the potential consequences 

of a disciplinary finding being that of dismissal the Applicant should have been clearly aware 

of the seriousness of the situation, based on the correspondence of the Respondent at all points 

of the matter. This was particularly so for the Applicant, given her preference for the continued 

employment prior to the parental leave.  

 

[107] Reference was made to three cases in support of the Applicant’s argument of harshness 

of the dismissal.87 The three cases are set out below. I have taken them into account against the 

current circumstances. 

 

[108] In the case of Bostik (Australia) Pty Ltd v Gorgevski (No 1)88 the Applicant referred to 

the following passage: 

 

“These are ordinary non-technical words which are intended to apply to an infinite 

variety of situations where employment is terminated. We do not think any redefinition 

or paraphrase of the expression is desirable. We agree with the learned trial judge’s 

view that a court must decide whether the decision of the employer to dismiss was, 

viewed objectively, harsh, unjust or unreasonable. Relevant to this are the 

circumstances which led to the decision to dismiss and also the effect of that decision 

on the employer. Any harsh effect on the individual employee is clearly relevant but of 

course not conclusive. Other matters have to be considered such as the gravity of the 

employee’s misconduct.” 

(emphasis added) 

 








[2023] FWC 1927 

 

38 

[109] The other cases referred to by the Union are set out below. In the case of Byrne v 

Australian Airlines Limited89 the Applicant drew attention to: 

 

“…It may be that the termination is harsh but not unjust or unreasonable, unjust but 

not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the 

concepts will overlap. Thus, the one termination of employment may be unjust because 

the employee was not guilty of the misconduct on which the employer acted, may be 

unreasonable because it was decided upon inferences which could not reasonable have 

been drawn from the material before the employer, and may be harsh in its 

consequences for the personal and economic situation of the employee or because it is 

disproportionate to the gravity of the misconduct in respect of which the employer 

acted.” 

 

[110] In Stark v P & O Resorts (Heron Island)90 (‘Stark’) the Applicant highlighted the 

following determination: 

 

“Where…an application...is advanced on the basis that a dismissal was harsh, 

unreasonable or unfair, the task of the Commission is to assess whether it should 

intervene to protect the applicant against a decision which is fundamentally one for the 

employer to make. Ordinarily intervention will be justified only where the employer has 

abused the right to dismiss. Ordinarily where an employer conducts a full and extensive 

investigation and gives the employee a reasonable opportunity to respond to allegations 

being made against him, an honest decision of the employer that misconduct warranting 

dismissal has occurred will, it formed on reasonable grounds, will be held immune from 

interference by the Commission…” 

(emphasis added) 

 

[111] What can be taken from the above cases is that the potential for harshness will not 

invalidate a dismissal or cause a conclusion that there is no valid reason. The lack of 

proportionality of response to the gravity of the conduct can lead to harshness, and particularly 

in Stark, that a dismissal determination will be immune where certain criteria are met. Those 

criteria being that there was a proper investigation, a reasonable opportunity to respond, and an 

honest and reasonable decision that the conduct warranted dismissal on reasonable grounds.  

 

[112] The Applicant’s overall conduct (in the context of her qualifications and experience with 

the operations) with regard to the medication incident, photographing confidential information 

and providing it to a third party, her interactions with staff, and non-attendance at the meeting 

caused the resultant diminished trust and confidence in the employment relationship that the 

Respondent relied on to terminate her employment. Despite two of the incidents referred to 

being categorised as serious misconduct, the Applicant was paid two weeks wages in lieu of 

notice. 

 

[113] Whilst it is reasonable in a disciplinary process, to take the particular circumstances of 

the Applicant into account, (for example her pregnancy) it is not for the employer or the 

employee to completely ignore the emerging issues in the employment. To do so in the nature 

of this workplace would have compromised client care. This was at the core of the Applicant’s 

duties. It cannot be accepted where the employee is not observing mandatory procedure or 

observing their standard obligations or interacting in a suitable manner. The employer has to 








[2023] FWC 1927 

 

39 

act on this in these operations. The employment contract requires both parties to meet their 

obligations, and whilst the employer provided recognition of the Applicant's circumstances, in 

not initially moving to dismiss, reciprocally there was an obligation for the Applicant to adhere 

to her employment obligations. The Applicant’s pregnancy did not in any way prevent the 

Applicant from complying with the normal procedures as set out, nor did the Applicant’s 

condition absolve the Applicant of her employment obligations. 

 

[114] The Respondent witness Ms Annette Rose, CEO, outlined the considerations that were 

made when determining to terminate the Applicant’s employment. Ms Rose stated that the prior 

medication incident was considered to be serious misconduct and in considering the appropriate 

disciplinary outcome, it was determined that due to the Applicant’s pregnancy, a warning was 

appropriate.91 Due to the further aggregate instances of misconduct, no further concessions 

could be made by the employer due to her pregnancy, and the termination of employment was 

necessary.92 

 

[115] It is recognised that the Respondent considered the repercussions of the dismissal. In 

addressing the circumstances of harshness, the Respondent’s representative sought financial 

information in relation to the husband's earnings. The Union did not object to the provision or 

consideration of this financial information and the Applicant had referred to his income in her 

submissions. The effects of the dismissal on the employee’s personal and economic position, 

have been examined. Whilst the relevant spousal earnings, as presented, lessened the argument 

as to resultant financial harshness, it is noted that the Applicant would have been placing 

reliance on her salary as well, in proceeding on parental leave. The Applicant, in her 

supplementary statement, set out her current monthly financial obligations. These expenses are 

accommodated within her husband’s earnings. However, in the absence of any real argument 

on the Applicant’s behalf as to harshness, any argument on this basis was alleviated when the 

earnings of the Applicant’s spouse, were admitted by consent of both parties, into the 

consideration. There was also a lack of clarity on whether there was duplication in some of the 

monthly expenses. As set out below this matter can be the subject of further submissions. 

 

[116] The Applicant’s pregnancy (being at 6 months) was recognised by the Respondent in 

the factors under consideration with the termination. However, the Respondent could not 

reasonably have maintained her employment until the Applicant went on parental leave, when 

there was no trust or confidence being demonstrated by the Applicant, by the totality of her 

conduct. The Respondent could not have had continuing confidence in the Applicant to perform 

her duties without further breaches of the employment contract and policies, based on her 

conduct. The circumstances of that conduct were of the Applicant’s own making. The Applicant 

should have been aware after the initial warning that her job was in jeopardy and responded 

accordingly to ensure her employment. The Applicant (in copying the patient information) for 

no apparent reason, set out that she was suspicious of the Respondent.  

 

[117] The employer could not be confident that these significant breaches of policy, would 

not re-occur. A demonstration of commitment to compliance was required. A combination of 

the Applicant’s attitude, non-attendance at the meeting and non-compliant conduct led to a 

determination by the Respondent that this commitment was not being demonstrated. This 

significantly affected the required trust and confidence that the employer could have in the 

Applicant. The Applicant did not demonstrate any remorse or contrition for the conduct or a 

significant willingness to ensure future adherence to the operating requirements and policies of 








[2023] FWC 1927 

 

40 

the employer. The environment of the Respondent’s operation is heavily regulated for good 

reason, to protect NDIS clients. The employer has to have confidence in an employee's 

compliance with those requirements. The Respondent could not be satisfied in terms of the 

Applicant maintaining the necessary trust and confidence, to ensure ongoing compliance with 

the Respondent’s statutory obligations, in operating a disability care service. 

 

[118] Alternatives to dismissal were reviewed by the Respondent, but were not considered 

appropriate, when taking into account the breaches and lack of acknowledgement by the 

Applicant to remedy and commit to the requirements of the operation.93 The concerns of the 

employer were justified, and at hearing the Applicant did not convey confidence in ensuring all 

of her interactions would be suitably compliant and professional.  

 

[119] In circumstances where the Respondent’s business is providing a care service for 

vulnerable people, the attitude and conduct of the Applicant was contributing to a problematic 

employment relationship, which was exacerbated when working in regulated NDIS client care 

operation. The Applicant’s conduct and approach did not support returning her to this work or 

to reforming the employment relationship. The Applicant, on her own evidence, in copying the 

forms was guarded about the employer, despite no basis for this position. 

 

[120] The Applicant did not demonstrate at any stage, a willingness to accept the necessary 

revision of her approach to her employment obligations and interactions. In the context of the 

seriousness of all of the Applicant’s conduct and the Respondent’s operations, the consideration 

of the incidents was substantiated and provided valid reasons for the dismissal. Taking all of 

the circumstances into account, there was a valid reason for the termination. However, there is 

also a finding of unfairness due to the procedural matters set out below. 

 

387(b) and (c) whether the person was notified of that reason and was given an opportunity 

to respond 

 

[121] Proper consideration of section 387(b) requires a finding to be made as to whether the 

Applicant “was notified of that reason”. Contextually, the reference to “that reason” is to the 

valid reason found to exist under section 387(a).94 The Applicant was notified of all of the 

reasons, the aggregate of which contributed to the valid reason. 

 

[122] With regard to the Applicant’s failure to follow a lawful and reasonable direction to 

attend the meeting, it was argued on behalf of the Applicant that the reason her union 

representative continued to agitate for particulars and response timeframes was due to a lack of 

procedural fairness. While this is accepted, in relation to the circumstances of whether the 

meeting was proceeding, (given the late email exchanges), the outlines of the allegations and 

the notification of the meeting provided to the Applicant, contained reasonable detail, 

completely sufficient to enable the discussion and response. The Applicant on the information 

provided was aware of the incidents being referred to and would have been able to discuss this 

at the meeting. This is evidenced by her early confirmation of attendance. However, after a 

request from the Union further particulars were provided by the employer. However, the issues 

of unfair procedure arose when it emerged that the meeting details had not been fully settled in 

the hours leading up to the meeting. 

 








[2023] FWC 1927 

 

41 

[123] The Respondent referred to the case of Siriwardana Dissanayake v Busways Blacktown 

Pty Ltd,95 in reference to the proposition that a failure to cooperate with a disciplinary process 

does not result in a failure to provide an opportunity to respond.96 With reference to the first 

instance decision, the Full Bench upheld the finding that there was no lack of procedural 

fairness: 

 

“The evidence, particularly that of Mr Yearsley, which I accept, overwhelmingly 

supports a conclusion that the applicant refused to co-operate with the respondent in 

the two disciplinary meetings held on 17 and 19 August 2010. The meetings were 

intended to allow him to give his version of events. His reason for not answering 

questions was because he wanted to see the actual complaints. Apart from the fact that 

it was Company policy not to provide the actual complaint to an employee, largely due 

to privacy reasons (see earlier par 35), it is only necessary, as a matter of procedural 

fairness, that the applicant was fully aware of the allegations being made against him. 

Given that Mr Mason read out the complaints and the applicant was shown CCTV 

footage of the incidents, I do not apprehend how it could possibly be argued that the 

applicant was denied procedural fairness by not being provided with the passenger’s 

complaint or the students’ statements. I have no doubt that the applicant knew precisely 

what was being alleged against him and his failure to co-operate, reflects very poorly 

on him. If it was a tactic designed to deflect attention from his own conduct and 

behaviour, it failed miserably.”97 

(emphasis added) 

 

[124] The case is analogous to the current circumstances, in that the Applicant had been 

provided with detail of the matters of discussion. That case confirmed that there is no lack of 

procedural fairness when the Applicant is adequately aware of the allegations and has been 

provided the opportunity to attend and respond and does not do so. However, in the current 

case, issues of procedure emerged. The questions as to the meeting time were pressed by the 

Applicant’s union representative with proximity to the meeting and had not been fully resolved 

at the commencement time of the meeting. 

 

[125] The Respondent still had an expectation that the Applicant would be attending the 

meeting as scheduled. However, the uncertainty, from the Applicant’s perspective, surrounding 

the meeting’s scheduling provides procedural deficiency in relation to the confirmation of the 

meeting, the attendance and the opportunity to respond. There was resulting procedural 

unfairness in this process, in the lack of clear final notification of the meeting, that undermined 

the Respondent’s consideration of the Applicant’s non-attendance at the meeting.  

 

[126] Taking all matters into consideration, the issue with the meeting still being the subject 

of correspondence, was procedurally unfair. In addition, the Respondent moved directly from 

the Show Cause response to termination without notification that this would be the process 

without a meeting. There was not an appropriate opportunity to respond but for the written 

response. Therefore, the opportunity was not afforded, and it was not communicated as being 

the process to be used. These factors provide unfairness in the process. 

 

387(d) any unreasonable refusal by the employer to allow the person to have a support 

person present to assist at any discussions relating to dismissal. 

 








[2023] FWC 1927 

 

42 

[127] The Respondent afforded the Applicant the opportunity to be represented by her Union. 

Failure for the meeting to proceed on 8 August 2022 and failure to have a Show Cause meeting 

obviated the Applicant’s union representative being a support person at these critical times. 

This factor weighs in favour of the Applicant. 

 

387(e) if the dismissal related to unsatisfactory performance by the person – whether the 

person had been warned about that unsatisfactory performance before the dismissal 

 

[128] As detailed, the Applicant had received a prior warning from the Respondent for serious 

misconduct for the medication incident and the unsatisfactory conduct of the Applicant’s 

inappropriate interaction with the staff member. The Respondent set out the basis for that in the 

correspondence on 10 August 2022. The Applicant was also provided with particulars of the 

concerns the Respondent held regarding unsatisfactory conduct of sharing confidential 

information and her failure to attend the meeting. The Respondent clearly set out what they 

considered to be their concerns in the matters complained of. The Applicant was appropriately 

warned of her initial unsatisfactory conduct prior to the further conduct occurring then the 

aggregate of the conduct justifying dismissal. The Respondent considered that the initial matters 

substantiated termination, however given the Applicant’s pregnancy, they set out their concerns 

and downgraded the response to a warning. The Applicant was then on notice regarding any 

future conduct. The occurrence of the further serious breaches justified termination. The 

assessment of this factor weighs against the Applicant. 

 

387(f) and (g) the degree to which the size of the employer’s enterprise and the degree to 

which the absence of dedicated human resource management specialists or expertise in the 

enterprise would be likely to impact on the procedures followed in effecting the dismissal 

 

[129] It is noted that the Respondent is a medium sized employer but had a very limited 

management structure and no dedicated in-house Human Resource personnel. The limited 

number of management personnel that performed those duties gave evidence and set out the 

steps taken in endeavouring to manage and respond to the Applicant and her Union, prior to 

engaging an external employment law advice when the management of the Applicant became 

onerous.98 The external employment lawyer assisted the Respondent to appropriately manage 

the disciplinary process which led to the termination process. The Union has been critical f the 

Respondent’s use of the legal representative in the proceedings. However, it is evident that 

dealing with the Applicant and the Union in this matter was demanding. The Applicant was 

also represented throughout the process by her Union. 

 

[130] There was however no persuasive evidence that the process afforded to the Applicant 

was improper or deficient or impacted due to the initial lack of specialist assistance. The 

Respondent’s lawyer when introduced, set out the Respondent’s position. The Union is 

understandably, was critical of the Respondent’s representative moving to consider the 

Applicant’s conduct when the Applicant failed to attend the meeting. The later responses 

provided by the Applicant did not alter the Respondent’s view of the process.  

 

[131] However, whilst this represents a procedural flaw, it did not alter the termination of 

employment based on the merits against all of the information known at the time of the 

dismissal or provided subsequently. The Respondent’s representative had not also set out that 

the show cause process would not include a meeting after receipt of the reasons. The 








[2023] FWC 1927 

 

43 

Respondent’s representative moved from considering the show cause response to termination. 

The absence of a meeting had not been set out to the Applicant or the Union. The Union only 

provided a brief response to the show cause letter. I am satisfied that there was a valid reason 

for the termination of employment, but the procedural flaws in the process contributed to the 

unfairness of the termination. 

 

387(h) any other matters that the FWC considers relevant 

 

[132] The Applicant’s union representative made reference to other matters for consideration. 

Firstly, that the Applicant had been employed for three years with only one prior warning being 

the warning issued on 10 August 2022, for the combined conduct that warning having been 

scaled down (on the basis of the Applicant’s pregnancy) from awarding a higher disciplinary 

outcome. The Applicant’s pregnancy was taken into account but this leads to matters relevant 

to parental leave and gaining employment after this. The Applicant had also not been offered 

EAP services during the disciplinary process, and thirdly, the Applicant had not been clearly 

made aware in the show cause process that there would not be a meeting, but also that 

termination was a possible outcome. 

 

[133] Whilst the Applicant’s disciplinary history is noted, the warning considered with the 

further events justifies the conduct relied on for dismissal. The gravity of the combined conduct, 

as set out earlier, is sufficient to provide a valid reason for the termination of employment. The 

Applicant’s argument that EAP services were not mentioned in the correspondence in no way 

invalidates the process or is sufficient to mitigate the Applicant’s conduct. Further, the 

Applicant had access to the support of her Union at all times in the process, and they were able 

to query with the Respondent the availability of those services if required and to notify the 

Applicant of how to access the EAP services.  

 

CONCLUSION 

 

[134] The full factual matrix of the matter has been taken into account. The decision to 

terminate the Applicant’s employment was based on valid serious reasons. The termination was 

a proportionate response to the Applicant’s instances of serious misconduct, being the failure 

to follow fundamental policies and procedures considering the medication incident and the 

breach of confidentiality. These two incidents caused a serious risk to the Respondent’s 

business and were of significant gravity to the employer’s operations. 

 

[135] In accordance with the Full Bench decision of B, C and D v Australia Postal 

Corporation T/A Australia Post99 a dismissal may be harsh, unjust or unreasonable, despite the 

existence of a valid reason for the dismissal: 

 

“Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the 

Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding 

the existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd 

v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button [2010] 

FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra 

Corporation Limited [2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print 

S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v 

Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd 






https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb4022.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb4022.htm
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[2023] FWC 1927 

 

44 

(1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; 

ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That 

principle reflects the approach of the High Court in Victoria v Commonwealth and is 

consequence of the reality that in any given case there may be “relevant matters” that 

do not bear upon whether there was a “valid reason” for the dismissal but do bear upon 

whether the dismissal was “harsh, unjust or unreasonable”.”100 

 

[136] In the circumstances, there were procedural flaws involved in the process employed by 

the Respondent with regard to the meeting on 8 August 2022 and the absence of the meeting in 

the show cause process without prior notification, and which affected the Applicant’s ability to 

respond to the reasons for dismissal. I am therefore satisfied that notwithstanding a valid reason 

for the dismissal, the Applicant’s dismissal was harsh due to the impact on her circumstances. 

In this regard, the Applicant was not provided an adequate opportunity to respond to the reasons 

for dismissal, in accordance with section 387(c) of the Act. 

 

[137] The emerging difficulties in the Applicant’s employment and the lack of any exhibited 

contrition or consideration on the part of the Applicant to redress the issues, did not provide 

any basis for an ongoing employment relationship. All of the circumstances of the Applicant 

being pregnant and the effects of the termination of the Applicant’s employment have been 

considered. 

 

[138] In these circumstances, as set out, where there was a valid reason for the dismissal, but 

the procedural flaws provided unfairness, I find that reinstatement is inappropriate. This is also 

so when considered with the Applicant’s distrust of the Respondent without reason (motivating 

her to make copies of the incident reports and also the Respondent’s loss of trust and confidence 

in the Applicant based on the significant breach of policy and procedure), together with the 

Applicant’s conduct with the other staff member and her non-attendance at the meeting. The 

employer had no further trust and confidence in the Applicant. 

 

[139] Having considered each of the matters specified in section 387 of the Act, I am satisfied, 

on the evidence provided, that the Respondent had valid reasons for terminating the Applicant’s 

employment, but that it did not do so in accordance with a procedurally fair process. I Order 

accordingly subject to the further consideration of remedy. 

 

[140] While both parties provided submissions in relation to the remedy, neither party 

accurately addressed the question of the Applicant’s ordinary hours of work, or ordinary 

earnings for the purpose of calculating the compensation payable to the Applicant. 

Compensation is under consideration for the procedural flaws, commensurate to a period to 

remedy those deficient steps, taking into account the wages in lieu of notice already paid. 

 

[141] The parties are therefore directed, in correspondence separately issued, to provide 

confirmation regarding the Applicant's weekly ordinary hours of work and the commensurate 

weekly remuneration amount at the time of her dismissal. 

 

[142] A separate Order addressing the appropriate remedy will be made on receipt of the 

further information from the parties. 






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[2023] FWC 1927 

 

45 

 
COMMISSIONER 

 

Printed by authority of the Commonwealth Government Printer 

 

PR764867 

 
1 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, 

Lacy SDP, Simmonds C, 21 March 2002), [69]. 

2 Witness Statement of Savita Sharma, SS-10. 

3 Witness Statement of Savita Sharma at [61]-[66]. 

4 Witness Statement of Savita Sharma at [71]-[72]. 

5 Witness Statement of Annette Rose at [12]; Witness Statement of Carlita Rose at [7] and [9]. 

6 Witness Statement of Annette Rose at [12]-[13]; Witness Statement of Carlita Rose at [10]. 

7 Witness Statement of Mrs Savita Sharma, SS-03. 

8 Witness Statement of Savita Sharma at [85]; Witness Statement of Carlita Rose at [12] and CR-02. 

9 Witness Statement of Savita Sharma, SS-04. 

10 Witness Statement of Savita Sharma at [86]. 

11 Witness Statement of Mrs Savita Sharma, SS-05. 

12 Witness Statement of Savita Sharma, SS-03; Witness Statement of Carlita Rose, CR-03. 

13 Witness Statement of Carlita Rose at [16]. 

14 Witness Statement of Savita Sharma; SS-07. 

15 Witness Statement of Carlita Rose at [19]. 

16 Witness Statement of Savita Sharma; SS-08; Witness Statement of Carlita Rose, CR-04. 

17 Witness Statement of Savita Sharma, SS-09; Witness Statement of Carlita Rose, CR-05. 

18 Witness Statement of Savita Sharma; SS-10; Witness Statement of Carlita Rose, CR-06. 

19 Witness Statement of Mrs Savita Sharma, SS-11; Witness Statement of Carlita Rose, CR-07. 

20 Witness Statement of Savita Sharma; SS-12; Witness Statement of Carlita Rose, CR-07. 

21 Witness Statement of Mrs Savita Sharma, SS-13; Witness Statement of Carlita Rose, CR-09. 

22 Witness Statement of Carlita Rose at [23]-[24]; Witness Statement of Annette Rose at [14]-[15], PN1238, PN1247. 

23 Respondent Outline of Submissions at [11] with reference to Kylie Smith v Bank of Queensland Ltd [2021] FWC 4 at 

[122]. 

24 PN273 and Applicant Submissions in Reply at [4]. 

25 [2021] FWCB 3457; reference was also made to DeVania Blackburn v Virgin Australia Airlines T/A Virgin Australia 

[2022] FWCFB 232. 

26 Applicant Outline of Submissions at [11]. 

27 Applicant Outline of Submissions at [12]. 

28 Applicant Outline of Submissions at [11], [12] and [14]. 

29 Applicant Outline of Submissions at [15]. 

30 Applicant Outline of Submissions at [18] referencing Allied Express Transport Pty Ltd [1999] FCA 799, cited in Brett v 

Transit Australia Pty Ltd [2022] FWA 2278 at [62]. 

 


HE FAIR KORK CO THE SEA NOISSINE




 

https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb7498.htm
https://www.fwc.gov.au/documents/alldocuments/pr915674.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr915674.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwcfb232.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwa2278.htm


[2023] FWC 1927 

 

46 

 
31 Applicant Outline of Submissions at [20]. 

32 [2021] FWC 1751. 

33 Ibid at [49]. 

34 Applicant Outline of Submissions at [23]. 

35 [2018] FWC 7281. 

36 Applicant Outline of Submissions at [32], [39] and [41]. 

37 [2014] FWCFB 3027. 

38 Applicant Submissions in Reply at [8]. 

39 Respondent Outline of Submissions at [26]. 

40 Respondent Outline of Submissions at [24] citing Lambeth v University of Western Sydney [2009] AIRC 47 at [70] and 

Grant v BHP Coal Pty Ltd [2014] FWCFB 3027. 

41 [2014] FWCFB 3027. 

42 Respondent Outline of Submissions at [24]. 

43 [2022] FWC 3343 at [90], citing Singh v Sydney Trains [2019] FWC 182. 

44 Respondent Outline of Submissions at [38]. 

45 Respondent Outline of Submissions at [39]-[40]. 

46 Respondent Outline of Submissions at [42]. 

47 Respondent Outline of Submissions at [45] citing Purves v Queensland Rail [2022] FWC 3343 at [78] making reference to 

Raj Bista v Group Pty Ltd t/a Glad Commercial Cleaning [2016] FWC.  

48 Respondent Outline of Submissions at [55]-[56]. 

49 Respondent Outline of Submissions at [59]-[60]. 

50 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373. 

51 Ibid. 

52 Edwards v Justice Giudice [1999] FCA 1836, [7]. 

53 [2021] FWCFB 3457 at [76]. 

54 [2022] FWCFB 232 at [78]. 

55 [2013] FWC 1712. 

56 Ibid at [113]-[115], [120]-[121], [125]. 

57 [2014] FWCFB 3027 at [129], [154]-[155] and Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374. 

58 Grant v BHP Coal Ltd [2014] FWCFB 3027 at [142]. 

59 Respondent Outline of Submissions at [21]-[22]. 

60 Witness Statement of Savita Sharma; SS-10; Witness Statement of Carlita Rose, CR-06. 

61 PN1112, Respondent Outline of Submissions at [26]. 

62 Respondent Outline of Submissions at [31] citing Purves v Queensland Rail [2022] FWC 3343 (Purves) at [90], citing 

Singh v Sydney Trains [2019] FWC 182. 

63 Applicant Outline of Submissions at [12] with reference to North v Television Corporation Ltd (1976) 11 ALR 599 at 608-

609; Serventi v John Holland Group Pty Ltd [2006] FCA 1049 at [6]; Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 

221 at [87]. 

64 PN1153. 

65 PN1125. 

66 PN1130. 

67 PN1152. 

68 PN1184, PN1192. 

69 PN1193. 

70 PN1194. 

 






https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc1751.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc7281.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb3027.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb3027.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb3027.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwc3343.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc182.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwc3343.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb3457.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwcfb232.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwc1712.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb3027.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb3027.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwc3343.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc182.htm


[2023] FWC 1927 

 

47 

 
71 [2021] FWC 1751. 

72 [2021] FWC 1751 at [49]. 

73 [2021] FWC 1751 at [50]. 

74 [2018] FWC 7281. 

75 [2018] FWC 7281 at [30]. 

76 [2018] FWC 7281 at [34]. 

77 Witness Statement of Savita Sharma; SS-12; Witness Statement of Carlita Rose, CR-07 

78 (1995) 62 IR 371. 

79 Witness Statement of Savita Sharma; SS-10; Witness Statement of Carlita Rose, CR-06. 

80 Witness Statement of Annette Rose at [12]-[13]. 

81 Witness Statement of Savita Sharma; SS-05. 

82 Newton v Toll Transport [2021] FWCFB 3457 at [76] and Virgin Australia Airlines Pty Ltd v Blackburn [2022] FWCFB 

232 at [78]. 

83Applicant Outline of Submissions at [30] referring to B, C, and D v Australian Post Corporation T/A Australia Post [2013] 

FWCFB 6191 at [41]. 

84 Witness Statement of Savita Sharma; SS-05. 

85 Witness Statement of Savita Sharma; SS-09. 

86 Witness Statement of Savita Sharma; SS-11.  

87 Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 26 FCR 20, 28; Byrne v Australian Airlines Limited (1995) 185 CLR 

410, 916 and Stark v P & O Resorts (Heron Island) (1993) 144 QGIG 914, 916. 

88 (1992) 26 FCR 20, 28. 

89 (1995) 185 CLR 410, 916. 

90 (1993) 144 QGIG 914, 916. 

91 Witness Statement of Carlita Rose at [23]-[24]; Witness Statement of Annette Rose at [14]-[15], PN1238, PN1247. 

92 Witness Statement of Carlita Rose at [31]; Witness Statement of Annette Rose at [25]-[26], PN1247. 

93 PN1238, PN1247. 

94 Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55]. 

95 [2011] FWAFB 648. 

96 Ibid at [22]. 

97 [2011] FWAFB 648 at [15] quoting [2011] FWA 3549 at [128]. 

98 PN921, PN926, Witness Statement of Carlita Rose at [12]-[20]. 

99 [2013] FWAFB 6191. 

100 [2013] FWAFB 6191 at [41] upheld by Australian Postal Corporation v D’Rozario [2014] FCAFC 89. See also Carter v 

Qantas Airways Limited [2011] FWA 8025. 






https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc1751.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc1751.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc1751.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc7281.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc7281.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc7281.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb3457.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwcfb232.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwcfb232.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb6191.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb6191.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb6429.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb533.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb648.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb648.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwa3549.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwafb6191.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwafb6191.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwa8025.htm

Cases cited by this decision: