Ms Tahmina Zobair v Sydney International Container Terminals Pty Limited T/A Hutchison Ports - [2023] FWC 2570

1 

 

Fair Work Act 2009  

s.394—Unfair dismissal 

Tahmina Zobair 

v 

Sydney International Container Terminals Pty Limited T/A Hutchison 

Ports 
(U2023/4406) 

DEPUTY PRESIDENT ROBERTS SYDNEY, 5 OCTOBER 2023 

Application for relief from unfair dismissal 

 

[1] On 19 May 2023 Ms. Tahmina Zobair (Applicant) applied to the Fair Work Commission 

(Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, having 

alleged that she had been unfairly dismissed from her employment with Sydney International 

Container Terminals Pty Ltd (Respondent or SICTL). The Applicant sought reinstatement to 

her former position, orders to maintain continuity of employment and continuous service1 and 

orders for remuneration lost2 because of the dismissal. In the alternative, the Applicant sought 

orders for compensation pursuant to s.392 of the FW Act. 

 

When can the Commission order a remedy for unfair dismissal? 

 

[2] Section 390 of the FW Act provides, inter alia, that the Commission may order a remedy 

for unfair dismissal if: 

 

(a) the Commission is satisfied that the person was protected from unfair dismissal at 

the time of being dismissed; and 

 

(b) the person has been unfairly dismissed. 

 

[3] It was not in issue that at the time of being dismissed the Applicant was protected from 

unfair dismissal within the meaning of s.390(a) and I am satisfied that the Applicant was so 

protected. 

 

[4] Section 385 of the FW Act provides that a person has been unfairly dismissed if the 

Commission is satisfied that: 

 

(a) the person has been dismissed; and 

 

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

 

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

[2023] FWC 2570 

DECISION 


AUSTRALIA FairWork Commission




 

https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc2570.pdf


[2023] FWC 2570 

 

2 

 

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

 

[5] The Applicant was dismissed on 17 May 2023 and lodged her application for relief 

within the requisite time period.3 The matters referred to at points (a), (c) and (d) above were 

not in issue. No jurisdictional issues arise with the application. That being the case, the question 

of whether the Applicant has been unfairly dismissed will depend on whether the Commission 

is satisfied that the dismissal was harsh, unjust or unreasonable within the meaning of s.385. 

Before dealing with that question, I set out below some of the factual background relevant to 

the proceedings. 

 

Background 

 

[6] The Applicant commenced employment with the Respondent as a stevedore on a casual 

basis in October 2016. In May 2017, she was offered, and accepted, a permanent full-time 

position in that role. She worked at the Respondent’s site at the Port Botany Container Terminal 

in Sydney. At all material times the Applicant and Respondent were bound by the terms of the 

Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise 

Agreement 2021 (the 2021 Agreement). 

 

[7] In addition to her position with the Respondent, the Applicant works as a 

singer/performer. She undertakes paid and unpaid performances at various venues, including 

as in this case, venues in other countries. The Applicant is a member of the Construction, 

Forestry, Maritime, Mining and Energy Union (Maritime Union of Australia Division) (MUA). 

 

[8] In January and February 2023, the Applicant applied to the Respondent to take two 

separate periods of paid annual leave. The periods of leave were from 20 February 2023 to 5 

March 2023 and then from 13 March 2023 to 26 March 2023.  

 

[9] The Applicant applied for leave to attend separate performances in Tashkent, 

Uzbekistan and Istanbul, Türkiye respectively. The first of those performances was scheduled 

to take place in late February 2023, the second in the later part of March 2023. In between the 

two performances and the two separate periods of annual leave, the Applicant was scheduled 

to work for the Respondent on her rostered shifts at Port Botany on 9 and 10 March 2023. The 

leave was approved by the Respondent. 

 

[10] The Applicant did not return to perform her rostered shifts on 9 and 10 March 2023. 

According to the Applicant, she fell ill in Tashkent and was unable to fly back to Australia to 

perform those shifts. The Applicant obtained a medical certificate from a doctor in Tashkent 

stating that she was unfit for travel. The Applicant sent this certificate to the Respondent on 7 

March 2023 with a covering note. 

 

[11] When the Applicant returned to Australia, the Respondent asked her to attend a meeting 

on 6 April 2023 to discuss her correspondence of 7 March and to provide further information, 

including documentation relating to her flights, changes or cancellation of flights and 

supporting receipts or bank statements. In that correspondence the Respondent alleged that the 

Applicant had used her personal leave entitlements inappropriately and “had no intention of 

returning to Australia on 6 March as stated in (her) correspondence.” 








[2023] FWC 2570 

 

3 

 

[12] The Applicant attended the meeting on 6 April with the Respondent accompanied by a 

delegate from the MUA. She provided a copy of the medical certificate she had provided earlier 

to the Respondent and a document relating to travel arrangements in her name for a journey 

from Tashkent to Sydney on 6 March 2023.4  

 

[13] Further meetings and correspondence between the Respondent and the MUA on behalf 

of the Applicant followed the meeting on 6 April. At various points the Respondent pressed the 

Applicant to provide further documentation. Ultimately, on 17 May 2023, the Respondent 

terminated the Applicant’s employment.  

 

[14] The Applicant maintained that at all times she had intended to return to Australia to 

perform her rostered shifts on 9 and 10 March 2023. She said that illness intervened and 

prevented her from doing so. The Respondent submitted that the Applicant had no intention of 

returning to work the relevant shifts at the time she applied for and was granted annual leave. 

They submitted that if the Applicant had such intention, she would have been able to provide 

documentation relating to her travel arrangements that supported her narrative and that her 

failure to do so confirmed the Respondent’s view that the Applicant had been dishonest at the 

point at which she had applied for annual leave. This dishonesty, according to the Respondent, 

was misconduct which the Respondent said provided them with a sufficient reason to terminate 

the Applicant’s employment.      

 

Was the dismissal harsh, unjust or unreasonable? 

 

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

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

 

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

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

 

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

 

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

capacity or conduct of the person; and 

 

(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 








[2023] FWC 2570 

 

4 

 

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

 

[16] I am required to consider each of these matters, to the extent they are relevant to the 

circumstances before me.5 I set out my consideration of each below. 

 

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct? 

 

The Evidence in Detail 

  

The Leave Application Process 

 

[17] The Respondent gave evidence, through Mr. Hughes (Manager of Terminal Operations) 

and Mr. Barron (Manager HR Operations), as to the process of applying for annual leave. They 

said that the usual practice was for employees to email or send text message requests to “leave 

allocators” who were employees of the Respondent with authority from the Respondent to 

approve leave requests for single weeks of annual leave. They said an employee seeking four 

or more consecutive weeks of annual leave had to apply for the approval of such leave by the 

Respondent’s HR department, usually Mr. Barron. In the Applicant’s case, four separate 

applications for leave were made to the leave allocators in the period 7 January 2023 to 19 

February 2023 for the two periods of leave referred to in paragraph [8] above.   

 

The Applicant’s Annual Leave 

     

[18] The Applicant’s evidence was that following the approval of her paid annual leave, she 

flew to Tashkent on 20 February 2023 with her sister Sadaf Zobair, to undertake a performance 

that she was contracted to complete. She said that her sister acts as her manager in relation to 

the work she does as a performer. The Applicant said that her original itinerary6 had her 

returning from Tashkent to Sydney departing 1 March and arriving 2 March 2023.  

 

[19] The Applicant said that on 27 February 2023 she was offered a further performance 

opportunity by a different production company to perform at a second event in Tashkent. The 

Applicant agreed to the second Tashkent performance and the production company that had 

organised the second event booked hotel rooms for the Applicant and her sister. The Applicant 

said this company also booked an amended return ticket to Sydney which was to depart 

Tashkent on 6 March and arrive in Sydney on 7 March 2023.7  

 

[20] The Applicant said that prior to her revised return flight on 6 March she fell ill. She said 

she saw a local doctor, Dr. Dilorom, who provided her with a medical certificate.8 The medical 

certificate was dated 5 March 2023 and provided (passport details omitted) as follows: 

 
To Whom It May Concern; 

 

I am writing to inform you that Ms. Tahmina Zobair, holding passport number 

xxxxx, an Australian citizen is under my treatment from 6 March to 10 March 

2023. 

 

She is unwell and unfit for travel. I highly recommend that Ms. Tahmina Zobair, must 








[2023] FWC 2570 

 

5 

complete her medical treatment before travelling. 

 

Thank you for your attention in this matter. 

 

Sincerely, 

Dr. Fattahova Dilorom 

ENT Specialist 

 

[21] The medical certificate was not signed but bore a stamp and included a telephone 

number. The letterhead included the words “Fertility IVF” in English and other details in a 

language other than English, presumably Uzbek. The Applicant sent this certificate to Mr. 

Hughes from the Respondent on 7 March with a covering note that said:  

 

"Hi Geoff, 

 

Hope you're well. 

I'm currently in Tashkent Uzbekistan and was meant to fly back on the 6th however 

due to my poor health I have not been able to. 

I've seen a doctor and have been advised not to travel for the time being. 

Please find below attached the medical certificate provided. 

 

Regards 

Tahmina" 

 

[22] In cross-examination, the Applicant said that she did not fly back to Sydney from 

Tashkent but instead flew directly from Tashkent to Istanbul after she recovered from her illness 

at some time in the period from 6 to 12 March 2023.9 She returned to Sydney after completing 

her second performance in Istanbul in the latter part of March 2023.  

 

 

Events Post-Annual Leave  

 

[23] The Applicant said that after she returned from annual leave, she was contacted by the 

Respondent’s HR Manager, Mr. Barron, who requested further documentation regarding her 

travel and suggested that she could face disciplinary action for failing to produce what was 

requested. The Applicant then contacted the MUA. The Respondent cancelled the Applicant’s 

next rostered shift, 4 April 2023, and directed her to attend a meeting with Mr. Barron on 6 

April 2023. The letter, dated 4 April 2023, from Mr. Hughes to the Applicant requiring 

attendance at that meeting provided in part: 

 

Re: Notice To Attend a Meeting 

 

You are required to attend a formal meeting on Tuesday 6 April 2023 at 14:30 with 

Luke Barron (Manager – HR Operations) and myself to provide further information in 

regard to the correspondence sent by you on Tuesday 7 March, stating that you were 

overseas and unable to return to Australia due to 'poor health'. 

 








[2023] FWC 2570 

 

6 

Your work schedule around this period, as shown below, has created some uncertainty. 

We would like to meet with you to obtain further information. 

 
• Monday 20 February – Sunday 5 March; Annual Leave. 

• Monday 6 March – Sunday 12 March; Back On Roster (2 x Personal Leave 

Days Taken). 

• Monday 13 March -Sunday 26 March; Annual Leave. 

 

At this meeting you will be required to address the following allegations. 

 
• It is alleged that you have used your personal leave entitlements inappropriately. 

• We allege that you had no intention of returning to Australia on 6 March, as stated in 

your correspondence. 

 

Please bring along with you any supporting evidence relating to your correspondence. 

 
• Original Flight Itinerary. 

• Any correspondence relating to any change or cancellation of flight or flights. 

• Any supporting receipts or bank statements.  

 

[24] On 6 April the Applicant attended a meeting with her MUA delegate Mr. Cakrun, Mr 

Barron and another manager from the Respondent, Mr. Vlahadamis. At the meeting the 

Applicant supplied the Respondent with two documents; first, a copy of the medical certificate 

from Dr. Diloram that had already been provided on 7 March and second, a document that the 

Applicant said reflected her revised travel arrangements to fly from Tashkent to Sydney on 6-

7 March 2023 (TZ3).10  The Applicant said that further supporting evidence of her travel 

itinerary was requested by Mr. Barron at the meeting and that a letter reiterating that request 

was sent to her on 11 April 2023. That letter provided in part: 

 

Re: Request for Supporting Evidence 

 

Further to our letter dated 4 April 2023 and our meeting on Tuesday 6 April 2023 at 

14:30 with Tony Cakarun (MUA Delegate), John Vlahadamis (Manager – Landside 

Operations) and myself we write to confirm that we requested the following supporting 

evidence: 

 

• Original Flight Itinerary. 

• Any correspondence relating to any change or cancellation of flight or flights. 

• Any supporting receipts or bank statements. 

 

We acknowledge we have been provided with the following: 

 

• Partial reservation issued Skylink Travels. 

• Unsigned letter from Dr Fattahova Diloram (ENT Specialist). 

 

Whilst we confirm the above documents have been provided, they are non-responsive to 

our request and we are not able to establish your original travel plans or verify your 

documents. Accordingly, we request: 








[2023] FWC 2570 

 

7 

 

• Original Flight Itinerary confirming departure and return flights from 

airline/Eticket. 

• Any correspondence relating to change or cancellation of flight or flights. 

• Signed medical certificate. 

• Any other supportive evidence you believe may be useful. 

 

Please email the above no later than 5:00pm, 13 April 2023. The supporting information 

provided by you, will be considered together with your responses at our meeting. Please 

note these are serious concerns and disciplinary action including termination of your 

employment is a possible outcome of this process, depending on your responses to the 

above allegations and management's consideration of same. 

 

[25] It appears that sometime shortly after the letter was sent by Mr Barron it came to the 

attention of Mr. Paul Keating, the Divisional Branch Secretary of the MUA’s Sydney Branch. 

Mr. Keating gave evidence that the letter gave him cause for concern. Mr. Keating said that 

because the Applicant did not have any sick leave left to cover her absence on 9 and 10 March, 

she took unpaid leave for the two shifts in question. He said that because the Applicant had not 

sought payment for the period of leave, she was not required by the 2021 Agreement, by the 

National Employment Standards (NES), or by SICTL’s own policy to provide the company 

with a medical certificate, let alone further documentation to establish that she was unfit to work 

those two shifts.11 Mr. Keating said he was concerned at the request for a signed medical 

certificate even though no certificate was required and considered the request unreasonable. He 

said that he regarded the requests from the Respondent for flight information as intrusive. He 

instructed the MUAs’ National Legal Officer, Mr. Bond, to respond to the letter.  

 

[26] On 13 April 2023 Mr. Bond, wrote to Mr Hughes in the following terms: 

 

I am in receipt of a letter dated 11 April 2023 in which you request further supporting 

evidence from Tahmina Zobair in relation to two days that she missed work due to 

illness. For the reasons set forth below, your request for further information is 

unreasonable and unfair and the MUA will not tolerate you going on a bullying fishing 

expedition to try to obtain evidence in support of your unfounded suggestion that 

Tahmina was dishonest when legitimately taking sick leave. Accordingly, please 

consider this message a formal grievance on Ms Zobair's behalf pursuant to Clause 22 

of the Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) 

Enterprise Agreement 2021. Because this grievance is brought against you, SICTL's 

Human Resources Manager, it would be inappropriate and futile for Tahmina to raise 

it in the first instance with her manager. Therefore, pursuant to Clause 22.6 I am raising 

the grievance at step 2 of the Issue Resolution clause. In doing so, I am invoking the 

status quo provisions contained in the EA at Clause 14.8. 

 

The basis for this grievance is as follows. Tahmina fell ill whilst she was overseas and 

missed two rostered shifts. In line with a Memorandum dated 13 December 2022 from 

Harriet Mihalopoulos to all employees, Tahmina provided you with a medical 

certificate from Dr Fattahova Dilorom certifying that she was unfit to travel back to 

Australia from 6 March to 10 March 2023. Under Hutchison's sick leave policy, that is 

all that Tahmina was required to provide to you. For you to threaten her with 








[2023] FWC 2570 

 

8 

'disciplinary action including termination of [her] employment' if she doesn't provide 

you with a plethora of further information to establish that she didn't fabricate an illness 

to extend hr holiday is nothing short of intimidation and harassment. 

 

The MUA demands that you immediately withdraw your letter to Tahmina dated 11 

April 2023 by the close of business today. Should you refuse to do so, I will 

immediately lodge a dispute in the Fair Work Commission. Along with a withdrawal 

of the dispute, it would be appropriate for you to apologise to Tahmina for the 

emotional distress that your actions have caused her. 

 

[27] On 17 April Ms. Mihalopoulos, the Respondent’s Head of Corporate Services & 

Industrial Relations, wrote to Mr. Bond in the following terms: 

 

I am in receipt of your email to Mr Barron dated 13 April 2023. I confirm you can 

regard my response consistent with Clause 14, Issue Resolution – Step 2 – National 

Level discussion. 

 

I have today reviewed the matters raised by you and the information currently 

available. My primary position is: 

 

• We reject the proposition that the request for further information is unreasonable and 

unfair or constitutes a bullying fishing expedition. 

 
• The Company is entitled to require confirmation for the reason for an Employee's 

absence where an Employee is claiming personal/carer's leave. Furthermore, the 

Company may exercise this right where absence issues are of concern to the Company 

(Clause 28.19). 

 
• We reject your characterisation that the Company is trying to obtain evidence in 

support of an unfounded suggestion that Ms Zobair was dishonest when legitimately 

taking sick leave. The Company has simply exercised their rights as recognised by the 

Parties at Clause 28.19. 

 
• The Company at this time is not satisfied with correspondence from Dr Fattahova 

Dilorom on the basis that the document would not convince a reasonable person that 

the employee was genuinely entitled to the sick or carer's leave because the document 

is both unsigned and we have been unable to verify whether Dr Fattahova Dilorom is a 

registered medical practitioner. 

 
• The Company maintains that Ms Zobair has failed to follow a reasonable directive to 

provide supporting evidence that is her (sic) possession to support her application for 

paid leave. 

 
• The Company rejects that by exercising rights under the Enterprise Agreement, this 

would somehow constitute intimidation and harassment. 

 

As such, I confirm that the absence remains of concern and we press our rights under 

Clause 28.19 to require confirmation for the reason for the absence. On that basis, letter 








[2023] FWC 2570 

 

9 

dated 11 April 2023 is not withdrawn. I am prepared to extend a final opportunity to 

provide further supporting evince (sic) no later than, 5:00pm on Tuesday, 18 April 2023. 

Accordingly, we require: 

 
• Original Flight Itinerary confirming departure and return flights from 

airline/E-ticket. 

• Any correspondence relating to change or cancellation of flight or flights. 

• Signed medical certificate. 

• Any other supportive evidence you believe may be useful. 

 

We consider this directive reasonable under the circumstances. The supporting 

information provided by Ms Zobair, will be considered together with her previous 

responses. Our concerns remain serious and disciplinary action including termination 

of employment is a possible outcome of this process. 

 

The Dispute Application  

 

[28] Mr. Keating’s evidence was that this response from the Respondent prompted him to 

instruct Mr. Bond to file a dispute with the Commission pursuant to the dispute resolution clause 

of 2021 Enterprise Agreement. He said the purpose of filing a dispute was to invoke the ‘status 

quo’ provisions of the clause to stop the Respondent from disciplining the Applicant or perhaps 

terminating her employment. A dispute was filed on 20 April 2023. 

 

[29] Mr. Bond also wrote to Ms. Mihalopoulos on 20 April in the following terms: 

 

Dear Harriett, 

 

I refer to your email in response to the grievance that I filed on behalf of MUA member, 

Tahmina Zobair. For the reasons set form below, your response is unacceptable. As 

such, the matte [sic] remains in dispute, and I have referred the matter to the Fair Work 

Commission for conciliation and, if the matter remains unresolved, arbitration. 

 

In response to the matters raised in your email, you invoke Clause 28.19 as giving the 

company the right to seek evidence in additional to a medical certificate to establish 

that an employee is genuinely entitled to take sick or carer's leave. Your reliance on 

Clause 28.19 is misplaced. That clause provides as follows: 

 

An Employee may be required to provide evidence supporting a claim for 

payment of personal/carer's leave as provided by the NES. The Parties 

recognise that the Company has rights under the NES to require confirmation 

of the reason for an Employee's absence where the Employee is claiming 

personal/carer's leave and that the Company may exercise this right where 

absence issues are of concern to it. 

 

Likewise, the NES provides that, if required by an employer, an employee must provide 

evidence of an illness only when the employee seeks to take 'paid personal/carer's leave' 

(see Fair Work Act s. 107). As explained by the Fair Work Ombudsman, 'an employee 








[2023] FWC 2570 

 

10 

who doesn't give their employer evidence when asked may not be entitled to be paid for 

their sick or carer's leave'. 

 

As you are aware, Tahmina has no available sick leave and, thus, did not seek to get 

paid for the two rostered days that she was unable to attend work due to an illness. 

Accordingly, she was required by neither the EA nor the NES to provide Hutchison with 

a medical certificate, let alone flight information, correspondence relating to cancelled 

flights, or any other evidence to confirm that she missed work due to illness. 

 

Because your HR Manager, Luke Barron, merely requested in his letter dated 11 April 

2023 that Tahmina provide further information, or the reasons set forth above, Tahmina 

respectfully refuses that request. Where and when she flies when she is on holidays is 

none of the company's concern and she is unwilling to open her personal life to 

unwarranted scrutiny. 

 

Because both your email and Mr Barron's letter suggest that the company will take 

disciplinary action, up to and including the termination of Tahmina's employment 

should she refuse to permit Hutchison management to scrutinise her private life, I have 

lodged an F-10 in the Fair Work Commission and have involved the status quo provision 

of the Issue Resolution clause. Should the company attempt to discipline Tahmina while 

this matter remains in dispute, the MUA will seek injunctive relief on her behalf. 

(original emphasis) 

 

[30] On 21 April the Respondent, through Ms Mihalopoulos, replied as follows: 

 

Dear Mr Bond 

 

Your member Ms Tahmina Zobair (also known as Tahmina Arsalan) has been asked by 

her employer to answer questions that arise directly out of matters that she has 

represented to Hutchison Ports. 

 

So that your member (and your union) is aware of our concerns please be advised: 

 

1. our policies require our employees to adopt the highest standards of honesty 

and integrity in their dealings with us; 

 

2. all forms of paid and unpaid leave are discretionary and in the case of 

personal leave, these discretions are informed by the NES and/or the EBA; and 

 

3.all forms of unpaid leave are discretionary;  

 

It would appear that Tahmina made arrangements to depart Australia to further her 

artistic career. 

 

In order to pursue this opportunity Tahmina understood that she would need a period 

of approved leave. 

 








[2023] FWC 2570 

 

11 

We relied upon Tahmina to be truthful as to the intended duration of the leave and 

initially approved the period 20 February 2023 to the 5 March 2023 on the basis that 

she would return to Australia and work her allocated shifts commencing on 9 March 

2023. 

 

Tahmina knowingly represented that she would work allocated shifts commencing 

14:00 9 March 2023 and 14:00 10 March 2023. 

 

As you will now be aware Tahmina did not return to Australia and did not work the 

allocated shifts. We now have reason to believe that Tahmina misled us in that she had 

no intention to return to Australia to work the allocated shifts. When pressed by 

Hutchison Ports on her attendance Tahmina further misled Hutchison Ports in that she 

asserted that she had made the necessary arrangements to return to Australia. 

 

Again in response to her representation we sought to verify this information. It is now 

apparent to Hutchison Ports that Tahmina is either unwilling or unable to produce any 

record or document which supports her representation to us. 

 

We appreciate that any allegation of potential dishonesty is a matter that requires 

procedural fairness in terms of an opportunity to be advised and respond. The purpose 

of this email is to provide both Tahmina and your union with the opportunity to respond 

to this serious allegation in circumstances where termination of employment is a 

potential outcome. 

 

Dispute Application 

 

Contrary to your email of 20 April 2023 this is not about attempts by management to 

'scrutinise her private life '. To the contrary, your member made representations as to 

her 'private life ' to obtain leave that was discretionary. 

 

As we have relied upon these representations as true, we equally have an interest in 

testing the truthfulness of these representations. 

 

Your union has chosen to file in the FWC a Form F10. We will instruct our solicitors to 

file a notice of appearance and await any listing. We do not however understand how 

the 'status quo ' provisions can apply in circumstances where we are asking an employee 

to respond to what may be regarded as misconduct. 

 

The EBA permits termination of employment for misconduct. We would therefore urge 

your member and your union to address the concerns of and respond in a meaningful 

way which can be verified. Our concerns can be addressed in part by the production of 

any record, booking (or re booking), email, airline communication that supports 

Tahmina's representation that she had made the necessary arrangements to return to 

Australia prior to her allocated shift commencing 14:00 9 March 2023. 

 

If there are no such documents Hutchison Ports is entitled to infer that Tahmina has 

not been truthful. 

 








[2023] FWC 2570 

 

12 

[31] Mr. Bond replied on the same day as follows: 

 

 Harriet, 

 

Your treatment of Tahmina in this matter is appalling. Let's recap: 

 

• Tahmina provided the company with a medical certificate certifying that she 

was unwell and unable to attend her rostered shifts on 9 and 10 March. 

• Hutchison accepted the medical certificate and granted her unpaid leave for 

those shifts. 

• Upon her return from leave, Luke Barron requested that she provide 

documentation related to her travel during her holiday and suggested that she 

could face disciplinary action, including termination, if she failed to comply with 

his request. 

• Acting through me, she filed a grievance on the basis that her travel 

arrangements are unrelated to her employment, and she provided you with a 

medical certificate that established she was unwell and unable to attend work 

on 9 and 10 March. 

• You responded to the grievance and suggested (quite wrongly) that the EA and 

the NES permit you to require documentation related to unpaid leave. 

• I disagreed, lodged a dispute in the Commission, and invoked the status quo 

provision that is contained in the Issue Resolution Clause. 

• You wrote back and, for the first time, now accuse Tahmina of dishonesty and 

threaten to terminate her employment. 

 

While you purport to be providing Tahmina with procedural fairness, your email does 

not identify what it is that you believe she did that was dishonest. She can't respond to 

an allegation that was not put to her. You say: 

 

We now have reason to believe that Tahmina misled us in that she had no intention to 

return to Australia to work the allocated shifts. 

 

I can assure you that Tahmina did not mislead you and that she had every intention to 

return to Australia to work the allocated shifts. Unless you put to her the 'reason to 

believe that Tahmina misled' you, she can't provide a meaningful response. Therefore, 

please provide Tahmina, through me, the evidence that you have that leads you to 

believe that she has been anything but truthful with SICTL. Once you provide such 

evidence (that I'm fairly certain consists of nothing more than baseless assumptions), 

Tahmina will gladly respond and, if required, provide evidence to the contrary. 

 

Finally, your assertion that the status quo provision does not apply to this situation is 

absurd. The dispute involves a determination of whether Hutchison is within its rights 

to require an employee who was granted unpaid leave to, in addition to a medical 

certificate, provide after the fact flight information, receipts and other information. 

 

You are clearly attempting to undermine the Issue Resolution process by now alleging 

dishonesty, thereby attempting to force Tahmina to provide the documentation you seek 

to defend herself against your baseless allegations. As soon as the matter is allocated 








[2023] FWC 2570 

 

13 

to a Member (presumably DP Easton) I will ask him to set the matter down for an urgent 

conference to deal with the status quo issue. 

 

In the meantime, I look forward to you providing Tahmina with procedural fairness by 

providing her with the evidence that leads you to believe that she has been untruthful. 

 

[32] On 24 April the Respondent wrote to the MUA in the following terms: 

 

Dear Kirk 

 

There are obvious limits as to what the 'issue resolution' and 'grievance procedure' 

clauses in the EBA can be used for. You simply stating your intention to place any matter 

'into dispute' does not automatically invoke what you describe as the 'status quo'. 

 

From our perspective, the status quo is and remains that in the event of alleged 

misconduct, it is open for SICTL to terminate the employment of an employee without 

notice of termination. 

 

In terms of procedural fairness we would, as a matter of practice, allow the employee 

to respond to any allegation of misconduct. This is an opportunity, not a requirement. 

 

It would appear from your correspondence that your member is unwilling (perhaps on 

advice) to produce records which would support her narrative that she both intended to 

return to Australia and work the shifts that were allocated for 9 March 2023 and 10 

March 2023. 

 

We feel that, in the circumstances, you are not responding to the opportunity to provide 

relevant information as to the possible termination of the employment deliberately and 

perhaps on the basis that we can infer that no such records exist. 

 

Grievance Procedure 

 

You refer in your correspondence of 21 April 2023 to the 'Grievance Procedure'. Clause 

22.1 of this clause states: 

  

'Where an Employee is concerned that the Company has in some way acted 

unfairly towards them, the Employee may initiate a Grievance.' 

 

We assume that the 'unfair actions' of SICTL must be the requirement to produce 

records to support the narrative of Ms Zobair as put to SICTL. 

 

In your email of 21 April 2023, you state: 

 

'The dispute involves a determination of whether Hutchison is within its rights 

to require an employee who was granted unpaid leave to, in addition to a 

medical certificate, provide after the fact flight information, receipts and other 

information.' 

 








[2023] FWC 2570 

 

14 

If the above reflets the position of the union, then perhaps you should in the 

circumstances amend your Form F10 to confirm that this is the question that needs to 

be determined by the Fair Work Commission. 

 

We, however, take a different view as to the characterisation of the current 

circumstances. Our position is as set out in our email of Friday, 21 April 2023. Your 

member has been made aware of our concerns that she may have engaged in 

misconduct. Your member has an opportunity to respond to this allegation. 

 

Whilst it is not for SICTL to determine how your member is to respond, it is apparent to 

SICTL that if her narrative as put to SICTL was truthful, there would be documents in 

existence such as flight bookings and/or documents supporting changes to flight 

bookings which would assist SICTL in determining whether or not misconduct has 

occurred. This is now the third occasion that we have requested that this documentation 

be produced. This is not a question of privacy. If there are any legitimate privacy issues, 

they can be dealt with by way of undertaking. 

 

If it is the position of the union that the Fair Work Commission determines the above 

question, then it will be our position at the Fair Work Commission on Wednesday that 

an order be issued by the Commission for your member to produce the documents to the 

Commission. 

 

A copy of this correspondence will be sent to the Fair Work Commission as part of our 

response. It would be our preference to avoid seeking an order from the Commission as 

to the production of documents and we would encourage your union to seek instructions 

from your member and produce the documents as a matter of urgency.  

 

[33] On 26 April, the Respondent, through its lawyers, made an application to the 

Commission for an order for production of documents in the MUA dispute application matter. 

The documents sought were set out in the schedule to a draft order sent with the application. 

The documents were as follows: 

 

Any document in the possession of Tahmina Zobair, including any email, text message, 

proof of payment, bank record, which evidences any booking, change of booking, 

cancellation fee and/or invoice with respect to any proposed or actual airline travel by 

Tahmina Zobair departing from Australia and/or returning to Australia in the period 

18 February 2023 to 27 March 2023.12 

 

[34] On 27 April 2023 the MUA discontinued the dispute application in the Commission. No 

order for production was made. 

 

[35] On 28 April 2023 Ms. Mihalopoulos wrote to the MUA noting the discontinuance of the 

dispute application but pressing for the production of the documents set out in the draft order 

by 1 May 2023. That correspondence included the following: 

 

I will leave it to you to discuss with Kirk, but at the Fair Work Commission earlier this 

week, SICTL was accepting of the fact that it cannot require or demand that the 








[2023] FWC 2570 

 

15 

documents be produced. We can, however, draw an inference from the non-production 

of the documents. 

 

[36] On 1 May 2023 the Applicant was stood down on full pay until 5pm on 2 May to allow 

her to “focus on the collection of documents and any submission” that she might want to make 

about her ongoing employment.13   

 

Meeting of 2 May 2023 – MUA and Respondent 

 

[37] On 2 May 2023 a meeting occurred between Mr. Keating and Mr. Smith, Deputy 

National Secretary of the MUA, Ms. Mihalopoulos, Mr. Hughes and Mr. Barron at the 

Respondent’s premises at Port Botany.  

 

[38] According to Mr. Keating, who was not cross-examined, Mr. Smith showed Ms. 

Mihalopoulos two documents. The first was a document purporting to be the original itinerary 

for the Applicant’s trip to Tashkent which had the Applicant returning to Sydney on 2 March 

2023. This document was annexed to both Mr. Keating’s statement (as PK11) and the 

Applicant’s statement (as TZ2). The second document was the revised itinerary which had the 

Applicant returning to Sydney on 7 March 2023 (TZ3). The Respondent had already been 

provided with the second document at the meeting with the Applicant on 6 April. It was not in 

issue that the Respondent was not provided with copies of either of these documents on 2 May 

2023. 

 

[39] According to Mr. Hughes, Mr. Smith showed the Respondent’s representatives a 

document that now appears as TZ2 on the screen of his laptop computer. Mr. Hughes’ evidence 

in chief about the conversation was as follows: 

 

Mr Smith: 

"We understand your concerns. Tahmina intended to return to work for her shifts. 

There is no doubt about that. " 

 

Ms Mihalopoulos: 

 

"Well that's fantastic because for us there is doubt about what she represented to us 

and what she intended versus what happened. " 

 

Mr Smith [starts referring to a document on his screen and turns his laptop around so 

Ms. Mihalopoulos, Mr Barron and I could see it]: 

 

"Here is a booking confirmation that Tahmina and her sister were flying out of 

Sydney on 20 February. They were departing Uzbekistan on 28 February, arriving in 

Sydney on 2 March. " 

 

Mr Barron:  

 

"Hang on, that makes no sense. So was she arriving back in Sydney on 2nd March or 

6th of March? The documents that she has provided us show that she was booked on a 

flight that was departing on 6 March arriving 7 March. " 








[2023] FWC 2570 

 

16 

 

Me: "This doesn't explain anything, in fact it makes everything more confusing. " 

 

Ms Mihalopoulos: 

 

"I feel the same, and again these are not e tickets, they are simply documents 

produced by travel agents. " 

 

Mr Smith: 

 

"The reason she is having trouble providing documents is because she is a performer, 

her travel is booked by the entertainment company. She picked up an extra gig and 

that's why it's all over the place. " 

 

Ms Mihalopoulos: 

 

"That doesn't really explain anything. When I travel for Hutchison, my travel is 

booked through a corporate travel agent, but the e ticket is issued to me in my name. 

Where is that? " 

 

Mr Barron: 

 

"I can see there are airline links to this booking confirmation, do you mind if we click 

there? " 

 

Mr Smith: 

 

"You can't, this is a PDF I have created from what Tahmina provided me. " 

 

Mr Barron: 

 

"Can we have a copy of this, or see the original? " 

 

Mr Keating: 

 

"No, you can't! She doesn't trust you it is all you're getting. And it's more than she 

needs to provide to you! " 

 

Ms Mihalopoulos: 

 

"We are well aware of that. We have said repeatedly that we cannot compel Tahmina 

to provide us anything, however we can provide her with an opportunity to give us any 

supporting evidence that will contradict our concerns. " 

 

Mr Smith: 

 

"But you have it. What I have shown you clearly shows she was returning to Sydney 

well ahead of her shifts. She got sick she can't help that. You have a certificate. " 








[2023] FWC 2570 

 

17 

 

Ms Mihalopoulos: 

 

"The certificate is problematic in that it's predominantly in a language we cannot read 

nor understand, it also states it's from an ENT but the letterhead is from an IVF clinic. 

" 

 

Mr Keating:  

 

"She does not need to provide a medical certificate, she has no paid sick leave left. " 

 

Ms Mihalopoulos: 

 

"Essentially this is not the issue. The issue is that she made certain representations 

about going on leave and we need to be satisfied that she was being honest and candid 

when she applied for the leave.  

 

[40] Mr Hughes made a number of points about the document TZ2 shown to him and others 

by Mr. Smith. He said he accepted it was the same document as the Annexure TZ2 to the 

Applicant’s statement which he had seen by the time he made his statement. He said despite a 

request that a copy be provided, no copy was provided on 2 May. He said he could only view 

the document briefly and did not see the entirety of its contents. He said it “raised more 

questions than it answered” because it referred to a return date of 2 March as opposed to the 6 

March return date that the Applicant had advised of in her email of 7 March. 

 

[41] Having been provided with a copy of TZ2 by the time Mr. Hughes prepared his 

statement of evidence in chief, Mr. Hughes continued to take issue with the document as not 

supporting the “Applicant’s narrative regarding the date she originally intended to return to 

Australia in light of the surrounding circumstances, other documents provided and other 

representations made by the Applicant.”14 In particular, Mr. Hughes said:  

 

(i) Mr Smith’s Document appeared to be a booking confirmation from a company 

"TravelPerk" whereas the Partial Reservation provided by the Applicant on 6 April 

2023 (see paragraph 20 above and Annexure GH10) was provided by a company 

"Skylink Travels"; and 

 

(ii) Mr Smith’s Document appears to confirm a flight from Islam Karimov Tashkent 

International Airport on 28 February 2023 arriving at Seoul Incheon International 

Airport on 1 March 2023 flying Uzbekistan Airways whereas the Partial Reservation 

appears to confirm a flight from Islam Karimov Tashkent International Airport on 6 

March 2023 arriving at Seoul Incheon International Airport on 6 March 2023 flying 

FLYDUBAI; and 

 

(iii) Mr Smith’s Document appears to confirm a flight from Seoul Incheon International 

Airport on 1 March 2023 arriving in Sydney on 2 March 2023 flying Asiana Airlines 

whereas the Partial Reservation appears to confirm a flight from Seoul Incheon 

International Airport on 6 March 2023 arriving in Sydney on 7 March 2023 flying 

Emirates.15 








[2023] FWC 2570 

 

18 

 

[42] On 3 May the Respondent wrote to the Applicant in the following terms: 

 

As you are aware, we have now had a number of meetings and discussions with 

representatives of your union. We have also had the benefit of the assistance of the Fair 

Work Commission with the dispute that has been discontinued. We continue to press for 

the production of documents which may support your narrative which has been 

questioned by SICTL. You will also be aware that the allegation made against you is 

serious and may result in the termination of your employment. 

 

In the context of a meeting with Mr Smith yesterday, he showed me documents on his 

laptop. Whilst Mr Smith did not provide me with copies of documents shown on the 

screen, I was not convinced that the documents shown to me were supportive of your 

narrative. The documents did not address our concerns. 

 

It is noted that you did not attend the meeting yesterday. We are obviously now 

considering your ongoing employment. We wanted to provide you with a final 

opportunity to meet or discuss your situation. I have set a meeting for Friday, 5 May 

2023 at 10am. As you have been stood down on full pay, this meeting will not be 

extended beyond this date. Please confirm whether you and/or your support person will 

attend. If you would prefer to have the meeting by telephone, I will facilitate a telephone 

meeting. Finally, if there are any other documents that you believe may assist you, this 

is your final opportunity to produce those documents. At the conclusion of Friday's 

meeting, a decision will be made with respect to your ongoing employment. 

 

Please confirm your attendance by return email." 

 

[43] Mr. Bond responded on 4 May as follows: 

 

I refer to the message that you sent to Tahmina on 3 May 2023. Tahmina will attend the 

meeting that you have scheduled for tomorrow at 10:00 am along with her chosen MUA 

Official. 

 

The fact that you are threating to terminate Tahmina' s employment over your gut 

feeling that she did not intend to return to Australia to work her two scheduled shift 

would be laughable if not for the immense consequences that Tahmina will suffer if you 

carry through with your threat. You can only lawfully summarily dismiss an employee 

if they have engaged in serious misconduct. In cases of serious misconduct, the principle 

established in Briginshaw v Briginshaw [1938] HCA 34 is applicable: 

 

The standard of proof remains the balance of probabilities but 'the nature of 

the issue necessarily affects the process by which reasonable satisfaction I 

attained' and such satisfaction 'should not be produced by inexact proofs, 

indefinite testimony, or indirect inferences' or 'by slender and exiguous proofs 

or circumstances pointing with a wavering finger to an affirmative conclusion. 

 

In my email to you dated 21 April 2023 I wrote the following: 

 








[2023] FWC 2570 

 

19 

I can assure you that Tahmina did not mislead you and that she had every 

intention to return to Australia to work the allocated shifts. Unless you put to 

her the "reason to believe that Tahmina misled" you, she can't provide a 

meaningful response. Therefore, please provide Tahmina, through me, the 

evidence that you have that leads you to believe that she has been anything but 

truthful with SICTL. Once you provide such evidence 1(that I'm fairly certain 

consists of nothing more than baseless assumptions), Tahmina will gladly 

respond and, if required, provide evidence to the contrary. 

 

To date, you have not provided one scintilla of evidence that would support your 

assertion that Tahmina did not intend to return to Australia to work her two rostered 

shifts in March. What I gather from what your lawyer told DP Easton at a conciliation 

conference, you merely infer that Tahmina did not intend to return because you can't 

fathom that someone would return to Australia from overseas, work a couple of shifts, 

then fly overseas again. If, in fact, that's all you've got, then good luck convincing the 

Fair Work Commission that you have grounds to terminate Tahmina' s employment. 

 

Moreover, accusing Tahmina of dishonesty without proof is inexcusable. You have 

caused her an extraordinary amount of stress and anxiety by threatening to sack her 

when you have no evidence that she has done anything wrong. And, you have no 

evidence that she has done anything wrong because she hasn't done anything wrong. 

 

You now say that you have no reason to question the legitimacy of her medical 

certificate. That should be the end of the inquiry. Speculating whether, before she got 

sick, she intended to return is irrelevant. Even if she didn't intend to return when she 

was first booked to fly overseas, so what? It's not misconduct for an employee to have 

no intention to show up at a rostered shift. I could decide on a Friday that, rather than 

attending work on Super Bowl Monday, I am going to chuck a sickie. But if I change my 

mind and decide to attend work on Monday, I haven't engaged in misconduct. Likewise, 

if I catch Covid on the weekend and am unable to attend work on the Monday, I haven't 

engaged in misconduct because my reason for missing work is illness, not my original 

intention to engage in Super Bowl celebrations. 

 

While I maintain that Tahmina is not required to provide you with proof that she has 

not been dishonest when you have no proof that she has been, to save her the distress 

of getting unfairly sacked and having to fight to get her job back, I asked Warren to 

show you documents that conclusively establish that Tahmina had every intention of 

returning to Australia. He showed you the following: 

 

• Her original booking showing that a company that booked her to do a show 

overseas paid for a return plane ticket (as well as hotel accommodations) for 

Tahmina and her sister with them booked to return to Australia on 1 March 

(returning on 2 March) 

. 

• Tahmina was contracted to perform another gig by a different company, so she 

extended her stay and performed on 1 March. That company purchased tickets 

for her sister and her to return to Sydney on 6 March (arriving 7 March). You 

were provided with that booking as well. 








[2023] FWC 2570 

 

20 

 

Even though you have sighted two different return flights to Australia that were booked 

for Tahmina and her sister, you stubbornly maintain that the documents shown to you 

do not support an intention to return to Australia. What else could she possibly provide 

to you, Harriett, to show that she intended to return to Australia? The fact that you're 

continuing to harass Tahmina about this matter demonstrates that you have an agenda 

beyond what you've informed us. 

 

In short, you have no grounds to discipline Tahmina in any way, let alone sack her. 

Should you carry through with your threat, once again we'll meet in the Commission or 

in Federal Court. Rest assured that, in any such proceedings, whether in an Adverse 

Action claim or an Unfair Dismissal Application, we will also raise instances of 

disparate treatment involving cases in which Luke Barron was well aware of sickies 

taken by employees in circumstances where he knew full well that they were not, if fact, 

sick. The fact that he condoned the misuse of sickies for certain employees while 

accusing Tahmina of engaging in serious misconduct for allegedly doing the same is 

alarming and, perhaps, illegal. 

 

In sum, I urge you to do the right thing and drop this matter entirely. 

 

[44] The Respondent replied to that email the following day, taking issue with the MUA’s 

perception of the conciliation conference before the Commission, noting that documents were 

shown by Mr. Smith to the Respondent’s representatives but that the documents did not meet 

the Respondent’s concerns and offering a final opportunity for the Applicant to respond to those 

concerns. The Applicant was copied into the correspondence. Mr. Bond replied on the same 

day arguing that no specific concerns had been put to the Applicant to which she could respond, 

that the process lacked procedural and substantive fairness and that the Respondent had 

presumed the Applicant guilty of an undisclosed transgression and indicated an intention to 

terminate her employment if she could not prove her innocence.   

 

Meeting on 5 May 2023 – Applicant, MUA and Respondent  

 

[45] The Applicant and Mr Keating met with Ms. Mihalopoulos and Messrs Hughes and 

Barron on 5 May. The meeting was brief. Mr Keating did most of the talking. According to Mr. 

Keating, he said that the Applicant had proven to the company that she fully intended to return 

to work her rostered shifts, that the Applicant had provided all the documentation she had to 

demonstrate her intention to return and that the Applicant was a model employee.  

 

[46] Mr. Hughes and Mr. Barron gave similar accounts of the meeting as each other.16 They 

said Mr. Keating referred to the medical certificate that had been provided and confirmed the 

Applicant’s intention to return for work on 9 and 10 March. They said Mr. Keating said that the 

information requested had been provided or shown. They said the Applicant and the MUA were 

asked to comment on the impact of termination of employment and Mr. Keating strongly 

opposed this outcome. Mr. Hughes disputed that Mr. Keating made comments about the 

Applicant’s record as an employee. The Applicant was asked to offer any additional comments 

but agreed that Mr. Keating had said what she had wanted to be said. None of the Respondent’s 

representatives said anything in response to Mr. Keatings representations on the Applicant’s 

behalf. No further documents were produced or provided at the meeting.  








[2023] FWC 2570 

 

21 

 

[47] Further correspondence followed this meeting. On 17 May the Applicant’s employment 

was terminated. The letter of termination is set out below. 

 

Re: Termination of Employment 

 

I have had regard to the matters raised on your behalf with respect to our concerns 

relating to your conduct. 

 

I believe that you have had an adequate opportunity to respond to these concerns and 

the possibility of the termination of your employment. 

 

It is noted that there was a conciliation conference before the Fair Work Commission. 

We were prepared to work within the FWC processes, however, your union discontinued 

these proceedings. 

 

We have, for some time now, pressed for the provision by you or your union of 

documents that that would have supported your narrative. These attempts were resisted 

before the Fair Work Commission by your union. 

 

In our subsequent meeting with Mr Smith and with Mr Keating, we do not believe that 

any verifiable documents have been produced that support your claims. 

 

In the circumstances, we remain of the view that you have not been honest. In 

circumstances where we grant leave based upon the representations of our employees, 

it is important that employees are open and honest in their dealings with us. This has 

not occurred and, in the circumstances, we remain of the view that you have engaged 

in misconduct. 

 

We have elected to terminate your employment, effective today. Notwithstanding our 

finding of misconduct, I will, without any prejudice to the legal position of SICTL, 

arrange for a payment to be made in lieu of notice in accordance with the EBA. Please 

ensure that you have returned to SICTL any company property. Any personal effects 

that remain on company premises will be couriered to your home address. 

 

Orders for Production of Documents 

 

[48] Shortly before the hearing of this matter, the Respondent applied to the Commission for 

an order for the production of documents by the Applicant. The documents sought included the 

following: 

 

1. Any document in the possession of Tahmina Zobair, including any email, text message, 

proof of payment, bank record, e-ticket, which evidences any booking, change of 

booking, cancellation, cancellation fee and/or invoice with respect to any proposed or 

actual airline travel by Tahmina  Zobair  departing  from  Australia  and/or  returning  

to  Australia  in  the  period  18 February 2023 to 27 March 2023. 

   








[2023] FWC 2570 

 

22 

2. Any communications (including emails / text) in the period 18 February 2023 to 27 

March 2023 to or from any travel agent, travel booking, travel consultant, visa 

procurement organisation, embassy with respect to any actual or intended cancelled or 

airline travel by Tahmina Zobair. 

 

[49] The application was not opposed and an Order17 was made for the production of the 

above material. Nothing was produced in response to the Order.  

 

Company Policies 

 

[50] The Respondent gave evidence about a Code of Conduct that applied to employees at 

the Port Botany site including the Applicant. That Code required all employees to observe the 

highest standards of ethical and professional conduct.18 

 

[51] There was also in evidence a memorandum from Ms. Mihalopoulos to all employees 

dated 13 September 2022 setting out the Respondent’s policy in relation to supporting evidence 

required for personal and carer’s leave absences. The memorandum provided: 

 

“Further to directives in September 2020, this Memorandum serves as a reminder to 

employees are to provide supporting evidence for all absences to take Personal (Sick) or 

Carers Leave.  

 

When is Supporting Evidence be required? 

 

The Company shall require an Employee to provide supporting documentation for all 

Personal (Sick) or Carers leave absences from work which are adjacent to public holidays, 

annual leave and ROW. 

 

Supporting Evidence can be as follows: 

 

• An Employee can provide up to 2 statutory declarations in any 12-month period for 

any absences from work due to personal or carers leave. The statutory declarations 

must be signed and duly authorised/approved by a justice of the peace; or 

• A medical certificate from a medical practitioner; or 

• A certificate from an ancillary medical provider such as a dentist, Nurse 

Practitioner, clinical psychologist.  

 

Please note that the Company does not accept evidence obtained from online platforms 

or certificates from a pharmacist to support any Personal (Sick) or Carers leave 

application. 

 

Employees are also reminded that when absent they must contact the Absence Hotline 

prior to the shift start otherwise the absence may be treated as an FTR (Failure to 

Report) and provide the following details: 

 

• Full name; 

• Allocated shift you are unfit to attend; and 

• Reason for not attending eg. sick, carers leave ect.  








[2023] FWC 2570 

 

23 

 

Note that should an Employee not provide a reason for their absence then the Employee 

will not be paid for that absence. As such providing a reason such as “not available”, 

“won’t be in” or “not coming in” will be unpaid.  

 

The above is consistent with the Company’s Leave Policy and the EBA and may not 

apply to Employees on an Absence Management Plan. 

 

If you have any questions, please contact your manager”. 

 

Submissions – “Valid Reason” 

 

[52] The Applicant submitted that there was no valid reason for the termination of her 

employment. The Applicant said this was so because the decision to terminate was capricious, 

fanciful and spiteful, because the company produced no evidence of misconduct and that even 

if the misconduct were proven, it did not justify termination. The Applicant said under the terms 

of the 2021 Agreement and the Respondent’s own policy she was not required to provide 

evidence for her personal leave absences because the leave was unpaid. She said that under the 

Respondent’s policy the consequence for not providing such evidence was non-payment for the 

period of leave. The Applicant said that in any event she had provided a medical certificate for 

the absence and ultimately the Respondent did not challenge the certificate as evidence of an 

inability to attend work due to illness. 

 

[53] The Applicant said the provision of the medical certificate should have been the end of 

the matter but instead the Respondent took the extraordinary step of putting the burden of proof 

on her to satisfy the company that, before she became ill, she intended to return to perform the 

two rostered shifts. The Applicant submitted that ultimately it was simply assumptions and 

conjecture on the part of the Respondent - namely that no-one would fly back from Uzbekistan 

to work two shifts before flying to Türkiye for a second period of leave - that lead to her 

dismissal and that under the Briginshaw standard, such assumptions could not properly found 

a summary dismissal. 

 

[54] The Applicant pointed to the fact that the Respondent accepted it had no right to demand 

the documentation it sought but relied solely on the negative inference that it drew from the 

failure to provide those documents. The Applicant said that notwithstanding the fact that the 

Respondent had no right to the documents, flight information was provided in an attempt to 

resolve the matter and that information showed that two separate bookings had been made for 

return flights before the rostered shifts. The Applicant said the Respondent did not ever explain 

why the documents provided were considered to be insufficient. The Applicant submitted that 

even if it were accepted that the Applicant did not intend to return for the shifts, this would 

warrant no more than a written warning, not termination. 

 

[55] The Respondent submitted that the Applicant did not intend to present for work on 9 

and 10 March 2023 and lied to the Respondent as to her intentions. They said that the 

Applicant’s narrative about being unexpectedly prevented from returning to Sydney was false. 

In support of this contention, they invited the Commission to draw adverse inferences against 

the Respondent from the available evidence, including the lack of documents produced by the 

Applicant. Reliance was placed on the decision of the Full Bench in DesignInc (Sydney) Pty 








[2023] FWC 2570 

 

24 

Ltd v. M Xu19 where the principles relating to the drawing of inferences was discussed. The 

Respondent submitted that the failure to produce documents permitted the Respondent to 

assume no such documents existed and that the Applicant had not been honest in her dealings 

with the Respondent. The Respondent said applying ordinary human experience to the 

Applicant’s evidence as to her travel plans and their amendment, the claim as to the non-

existence and non-production of documents appeared to be inherently unlikely. 

 

Consideration 

 

[56] In its consideration of predecessor provisions to s.387(a), the former Industrial Relations 

Court of Australia confirmed that the expression “valid reason” means a reason that is sound, 

defensible or well founded.20 It was there said that a reason that it capricious, fanciful, spiteful 

or prejudiced could never be a valid reason for the purposes of s.170DE of the former 

Workplace Relations Act 1996.21 Although the wording of the present provisions differ, the 

approach continues to apply to the issue of “valid reason” under s.387(a).22  

 

[57] When considering whether there is a valid reason relating to the conduct of an employee, 

the Commission must decide whether, on the balance of probabilities, the conduct said to have 

been engaged in by the employee actually occurred.23 The test is not whether the employer 

believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the 

conduct.24  

 

[58] As to the question of onus or burden of proof in matters of this kind, a Full Bench of the 

Commission observed in the matter of Newton v Toll Transport Pty Ltd:25  

 

[81] Contrary to the Appellant’s contention, the extent to which the legal concept of 

onus or burden of proof applies to matters before an administrative tribunal such as the 

Commission is somewhat vexed. As observed by the Full Bench in Advanced Health 

Invest Pty Ltd T/A Mastery Dental Clinic v Mei Chan:26 

 

‘As to the issue of onus agitated by the Respondent, it must be said that the extent 

to which the legal concept of onus or burden of proof arises in relation to 

matters considered by an administrative tribunal such as the Commission is a 

difficult one. However, in the context of the question whether a dismissal is 

unfair, to the extent that there is a legal onus or something analogous to it, the 

onus rests on the applicant in the sense that it is the applicant who bears the risk 

of failure if the satisfaction required by s.385 including s.385(c) is not 

reached.  As to evidentiary onus, plainly a party seeking to establish a fact bears 

onus of adducing evidence necessary to establish that fact. In a practical sense, 

in most cases the question of where an evidentiary onus resides will be 

answered by asking: in relation to each matter about which the Commission 

must be satisfied, which party will fail if no evidence or no further evidence 

about the matter were given? 

 

[59] In order to be satisfied that there was a valid reason for the dismissal here I must 

conclude that the Applicant had no intention of returning to work her allocated shifts when she 

applied for annual leave and that in that event, she was dishonest and mislead her employer into 

believing that she did intend to return to work. The Applicant asserted that at all times it was 








[2023] FWC 2570 

 

25 

her intention to return to Australia to work on her allocated shifts. The conclusion for which the 

Respondent contended was based largely on adverse inferences that they maintained should be 

drawn from the Applicant’s failure to produce documents. Mr. Hughes accepted in cross-

examination that the Respondent did not provide the Applicant with any evidence that she had 

mislead the Respondent but that the Respondent simply stated to the Applicant that they 

believed that she did not intend to return.27 The Respondent’s case was that the Commission 

could nonetheless be satisfied that the conduct occurred because the surrounding agreed or 

proven facts were of a kind that that allowed the Commission to draw an inference, as the 

Respondent had done, as to the Applicant’s real intention at the time the leave was requested. 

 

[60] In DesignInc (Sydney) Pty Ltd v. Xu28 a Full Bench of the Commission restated the 

relevant principles relating to the drawing of inferences as follows: 

 

(i) an inference is assent to the existence of a fact which the drawer of the inference bases 

on the existence of some other fact or facts; 

(ii) the drawing of an inference is part of the process of fact finding; 

(iii) an inference can be drawn if it is reasonably open on the basis of agreed or proved 

facts; 

(iv) the question whether a particular inference can be drawn from the facts found or 

agreed is a question of law; 

(v) where direct proof is not available, it is enough if the circumstances appearing in the 

evidence give rise to a reasonable and definite inference; 

(vi) the circumstances must do more than give rise to conflicting inferences of equal 

degrees of probability so that the choice between them is a mere matter of conjecture; 

(vii) matters to be taken into account in drawing an inference include circumstances whose 

relation to the fact in issue consists in the probability or increased probability, judged 

rationally upon common experience, that they would not be found unless the fact to be 

proved also existed; 

(viii) generally it is not lawful to take into account moral tendencies of persons, 

their proneness to acts or omissions of a particular description, their reputations and 

their associations; 

(ix) the degree of probability required to found the necessary inference will depend on the 

nature of the proceeding: 

(x) in a criminal case the facts must be such as to exclude reasonable hypotheses 

consistent with innocence; 

(xi) in a civil case you need only circumstances raising a more probable inference in 

favour of what is alleged; 

(xii) a party’s failure to give evidence on some issue in cases where it is within that party’s 

power to provide or give evidence, may result in more ready acceptance of the 

evidence for the other party or the more ready drawing of an inference that is open on 

that evidence. 

 

[61] It is apparent from the submissions that the Respondent relied upon, primarily, the 

failure of the Applicant to produce travel and related documentation to support the drawing of 

the necessary inference against the Applicant. There was also some evidence from the 

Respondent relating to the way in which the Applicant applied for annual leave. Although it 

was not stressed in submissions, that evidence was that the Applicant made a series of 

applications for leave for two discrete periods and that had she made an application for a single 








[2023] FWC 2570 

 

26 

period of leave of four weeks or more, this would have required more senior levels of 

managerial approval. Mr Hughes also gave evidence that the Applicant went to some lengths 

to avoid being rostered on for work on 8 March 2023.29 To the extent that this evidence is relied 

upon to support the view that the Applicant always intended to be absent for the entire period 

and applied in the way she did to avoid an approval process, a point not put to the Applicant in 

cross-examination, I reject that contention. The Applicant gave evidence that she had two (and 

later three) different performances booked for different dates in two different countries for 

different production companies. There was no evidence about the sequence in which these 

engagements became available to and were accepted by the Applicant. However, I can just as 

readily infer that the leave was requested and booked as and when it was necessary to meet 

those separate commitments. I draw no adverse inference against the Applicant from this 

evidence. 

 

Documents Provided 

 

[62] The Applicant did provide documents to the Respondent about her travel arrangements. 

On 7 March, in advance of her absence from work, she provided notice of her pending absence 

on 9 and 10 March and a medical certificate to the Respondent that covered the period of that 

absence. At various points, the Respondent questioned the validity of the certificate. On 11 

April they requested a signed copy of the certificate. On 17 April they asserted a right to require 

confirmation of the reason for the Applicant’s absence and relied on clause 28.19 of the 2021 

Agreement to do so. The Respondent said that the certificate would not satisfy a reasonable 

person because it was unsigned and they were unable to verify the person who had provided it 

was a registered medical practitioner.30 They also asserted that the Applicant had failed to 

follow a reasonable directive to provide supporting evidence to support an application for paid 

leave.31  

 

[63] On 28 April, after the Commission proceedings before Deputy President Easton, the 

Respondent no longer asserted any right to demand documents. Ms. Mihalopoulos wrote “..at 

the Fair Work Commission earlier this week, SICTL was accepting of the fact that it cannot 

require or demand that the documents be produced. We can, however, draw an inference from 

the non-production of documents.”32 From this point until the termination of the Applicant’s 

employment, the Respondent did not reassert a right to receive any of the documents it was 

asking for, including a signed medical certificate. Nor did they take issue with the validity of 

the certificate itself or assert that the Applicant had failed to follow a reasonable direction to 

provide evidence as to her taking of leave. However, Mr. Hughes’ evidence at the hearing was 

that employees were obliged to provide supporting evidence for any absences adjacent to public 

holidays, annual leave and rostered off weeks according to the company policy dated 13 

September 2022.33 He said the fact that the Applicant had exhausted her paid personal leave did 

not relieve her of the obligation to provide supporting evidence for her absences.34 He accepted 

in cross-examination that the company was not entitled to obtain travel and banking 

documents.35 

 

[64] It is unclear what accounted for these changing positions by the Respondent. In any 

event, as to the medical certificate, given that the Applicant had never sought paid personal 

leave, the MUA was, in my view, correct to assert as it did36, that clause 28.19 of the 2021 

Agreement, including any rights the clause confers on the Respondent pursuant to the NES,37 

did not oblige the Applicant to provide a medical certificate or any other documentation relating 








[2023] FWC 2570 

 

27 

to her absence on 9 and 10 March. Clauses 28.18 and 28.19 both refer to medical certificates or 

other evidence to support a “claim for payment”. The second sentence of clause 28.19 simply 

references the rights the company has under the NES. Section 107 of the FW Act requires an 

employer to give their employer notice of the taking of personal leave and, where that notice is 

given and if the employer requires it, to provide evidence as to the reason for the leave where 

the leave is paid personal leave.38  

 

[65] I also do not accept that the company’s policy set out in the memorandum of 13 

September 2022 obliged the Applicant to do any more than she did. Even accepting for a 

moment that the terms of the memorandum required something beyond what the 2021 

Agreement provided for, and that employees were obliged to provide a reason and supporting 

material in cases of unpaid personal leave absences, the Applicant met this obligation by 

providing the medical certificate. The reason for the absence was illness, evidenced by the 

certificate.  

 

[66] In any event, it was not the failure to produce documents or comply with company policy 

that the Respondent claimed grounded the termination, but dishonesty at the point of applying 

for annual leave. It seems to me that on this argument, there are two possibilities insofar as the 

provision of a medical certificate is concerned. Either the Respondent contends that the 

Applicant did not intend to return to work but was nonetheless ultimately prevented from doing 

so because of genuine illness, or that the Applicant did not intend to return and the dishonest 

intention later manifested itself in a feigned claim of illness and the provision of a bogus 

medical certificate or a medical certificate obtained in bad faith.  

 

[67] I do not accept that there is any issue with the medical certificate itself. The medical 

certificate is valid on its face and there is no basis to go behind that certificate. Contrary to one 

of the original allegations by the Respondent that the Applicant had used personal leave 

entitlements inappropriately,39 the Applicant was entitled to rely on that certificate to access 

unpaid personal leave. I note that Mr. Hughes’ evidence was that the medical certificate did not 

have anything to do with the reasons for termination.40 Nevertheless, the Respondent said in 

final submissions that the unsigned medical certificate and the Applicant’s attendance history 

gave the Respondent good reason to question the Applicant’s narrative. The certificate is cogent 

evidence of the Applicant’s state of health at the time. To the extent that I am invited by the 

Respondent to draw an adverse inference from the surrounding circumstances that there was 

some feigned illness on the Applicant’s part I decline to do so. Ultimately, I conclude that the 

Applicant did not return to Australia to work her allocated shifts because illness prevented her 

from doing so. I do not accept that the Applicant’s medical certificate was a manifestation of a 

dishonest intention and draw no adverse inference against the Applicant because she obtained 

and provided the certificate. It follows that there should be no adverse inference drawn against 

the Applicant because of the absence from work on 9 and 10 March because of her illness. 

 

[68] On 6 April 2023, the Applicant also provided to the Respondent a copy of a document 

setting out the details of a return flight for the Applicant and her sister from Tashkent to Sydney 

on 6 March 2023 (TZ3). The Respondent’s witnesses described this as a “partial reservation”. 

They disputed that the document was evidence of purchased tickets. Despite being provided 

with the document early in the “investigation” process, the Respondent continued to assert that 

this was insufficient to support the Applicant’s narrative. The document includes two e-ticket 

receipt numbers. I accept the document as evidence of at least a reservation having been made 








[2023] FWC 2570 

 

28 

for a return flight to Sydney for the Applicant on 6 March, prior to that date. Such a reservation 

is consistent with the Applicant’s narrative as to both obtaining a second performance in 

Tashkent after her arrival there and an intention to return to Sydney prior to her rostered shifts. 

 

[69] The Applicant also relied on document TZ2, which was said to evidence her original 

itinerary for the trip from Sydney to Tashkent, including accommodation in Tashkent from 21 

to 28 February and a return flight arriving in Sydney on 2 March 2023. The document appears 

to be an email dated 13 February 2023. It includes a booking confirmation number in the subject 

line. At least some part of the document was shown to the Respondent’s representatives by Mr 

Smith at the meeting on 2 May. It was not provided to the Respondent until the Applicant’s 

witness statement was filed in these proceedings. The origin of the document is unclear. The 

Applicant appeared to accept it came from her but was unsure when she provided it to the 

MUA.41 Mr. Hughes said that Mr. Smith described the document as “a PDF that I have created 

from what Tahmina provided me.”42 

 

[70] In cross-examination Mr. Hughes’ evidence was that he saw the first page only of the 

document on Mr. Smith’s computer.43 However, it was also his evidence44 in chief that the 

following exchange occurred at the meeting on 2 May: 

 

Mr Smith [starts referring to a document on his screen and turns his laptop around so 

Ms. Mihalopoulos, Mr Barron and I could see it]: 

 

"Here is a booking confirmation that Tahmina and her sister were flying out of Sydney 

on 20 February. They were departing Uzbekistan on 28 February, arriving in Sydney 

on 2 March. " 

 

Mr Barron: 

 

"Hang on, that makes no sense. So was she arriving back in Sydney on 2nd March or 

6th of March? The documents that she has provided us show that she was booked on a 

flight that was departing on 6 March arriving 7 March. " 

 

Hughes: 

 

"This doesn't explain anything, in fact it makes everything more confusing. " 

 

Ms Mihalopoulos: 

 

"I feel the same, and again these are not e tickets, they are simply documents 

produced by travel agents. " 

 

[71] The discrepancy described in the statement of Mr. Barron above can be explained by 

the Applicant’s evidence45 about the second Tashkent performance of which the Respondent 

was, at that stage, apparently unaware. Nonetheless, the Respondent continued to attack the 

document as not credible and not satisfactory evidence of a purchased return ticket. The 

Respondent said the failure to provide it demonstrated evasiveness on the part of the Applicant. 

Having been supplied with the document by the time of the proceedings, Mr. Hughes 








[2023] FWC 2570 

 

29 

maintained that it did not support the Applicant’s narrative regarding the date she intended to 

return.46  

 

[72] In my view the document does provide some support for the Applicant’s narrative. The 

dates of the document are consistent with the Applicant’s version of events and the fact that 

some form of travel arrangement was made prior to the Applicant’s departure which included 

a return date of 2 March 2023. It is consistent with an intention to return to Sydney before 9 

March. The fact that it refers to a different travel company, different flights and different return 

dates to TZ3 is understandable given the Applicant’s evidence, which I accept, that the bookings 

were made by the different production companies for the two separate events. 

  

[73] It was accepted by the Applicant that a copy of TZ2 was not provided to the Respondent 

prior to her termination. The Respondent was shown some part of the document at the meeting 

on 2 May but was not given the document until the filing of the Applicant’s witness statement 

in these proceedings. However, the Respondent was made aware prior to the termination that 

the Applicant had engaged in two different performances in Tashkent which necessitated a 

change of flight arrangements. Mr. Bond’s correspondence47 to the Respondent of 4 May 

referred to this and Mr. Hughes accepted the point in cross-examination: 

 

…..So, before you terminated Tahmina, Mr Hughes, you knew that two separate flights 

had been booked for Tahmina, and to return to Sydney well in advance of her next 

rostered day off work, and you knew the reason that two separate flights had been 

booked, right?---We were given reasons, yes.   

 

So the reasons were, she booked the original flight; I informed Harriet that there is a 

second booking, because she got a second gig; therefore a change of flights; that's why 

we have the two separate bookings, right?---Right.   

 

And you were aware of that fact prior to the time that you terminated her employment; 

correct?---Yes.48  

 

[74] Aside from documents TZ2 and TZ3 no other travel documentation was produced to the 

Respondent before the termination, or to the Commission pursuant to the order for production. 

The Applicant said that her sister was her manager and managed her travel, invoicing, bookings 

and financial arrangements. She lived with her sister and accepted she had a good relationship 

with her and that if any travel documents existed, they would likely be held by her sister.49 The 

Applicant said at various points in cross-examination that she did not recall discussing the 

Respondent’s request for travel documents with her sister.50 

 

[75] The Applicant said that she did not pay for her flights. She said that flight bookings are 

made by a booking agent and that the costs are met by the producer who retains her services.51 

She said she did not incur any expenditure for purchasing or changing tickets52 and that the 

company that she is performing for pays for those items, as well as “extra hotel stays”.53 Mr. 

Barron gave evidence that the Applicant told him as early as 6 April that all of her travel 

arrangements were made by a third party and that was the reason she had no proof of purchase 

or correspondence from any airline.54 I accept that the Respondent was told this by the 

Applicant. Those are matters that clearly have implications for any documents that the 

Applicant might be expected to have in her possession relating to travel arrangements. For 








[2023] FWC 2570 

 

30 

example, given flights were not paid for by the Applicant, it would be unsurprising in the 

circumstances if the Applicant had nothing to produce in response to Mr. Barron’s request for 

bank records, albeit a request qualified by reference to records relating only to proof of purchase 

of flights.55  

 

[76] The involvement of booking agents and production companies also reduces the 

likelihood that the Applicant would have at least some of the travel documentation sought by 

the Respondent. Mr. Hughes accepted in cross-examination that the Respondent was aware that 

third parties were involved in the travel arrangements before the decision was made to terminate 

the Applicant’s employment: 

 

The companies who booked her to perform are the companies that provided her with 

those reservations, they purchased the flights, correct?---Yes. 

 

And you were aware of that at the time that you terminated her employment, weren't 

you?---Yes. 

  

Because Warren Smith told you that, at that meeting, didn't he?---He did, yes. 

 

Yet she couldn't provide those documents because she is not the one who did the 

booking, yet you assume that she should have had them and because she didn't you 

terminated her employment, how fair is that?---As I said, if Ms Zobair did not have that 

correspondence in her possession I believe the company making the bookings should 

have had that correspondence in their possession.56  

 

[77] Mr. Hughes accepted in cross-examination that the Respondent had no evidence of 

misleading conduct other than the assumptions made by the Respondent as to the Applicant’s 

conduct.57 As to the evidence provided to the Applicant that she had engaged in misleading 

conduct he said: 

 

To this very day you never provided her with any evidence that she mislead you, right?-

--We did not provide evidence, no, we simply stated that we believed she was misleading 

us in telling us that her intention was to return to Australia for those two shifts.58 

 

[78] There are parts of the Applicant’s “narrative” that remain at least partially unexplained. 

For example, there was very little evidence as to the flight that the Applicant said she had 

originally intended to take from Sydney to Istanbul after she had returned from Tashkent. There 

were no travel documents relating to this flight and the Applicant could not recall what date it 

was that she was scheduled to fly, or the airline. The evidence as to the return flight from 

Istanbul to Sydney was unsatisfactory. Again, there was no documentation and the Applicant 

said the flight may have been on 23 or 24 March but could not recall whether the flight that she 

ultimately returned on was the same as the one that had been originally booked.59 The absence 

of documentary evidence on these issues does not assist the Applicant. 

 

[79] The adverse inferences that the Respondent submits should be drawn go not to, for 

example, the occurrence or non-occurrence of a particular event, but to the existence of a 

dishonest intention on the part of the Applicant at a particular point in time. Given the all the 

evidence here, including the documents that were provided and the evidence of the Applicant 








[2023] FWC 2570 

 

31 

as to her intention, and having regard to the principles enunciated in DesignInc, I am not 

satisfied that the absence of some evidence of this kind in combination with other evidence 

supporting the Respondent’s case, allows me to draw adverse inferences to the point where I 

can be satisfied that the Applicant held a dishonest intention and thereby engaged in 

misconduct.  

 

[80] Having regard to all the evidence in this case I am unable to conclude that the conduct 

said by the Respondent to have been engaged in by the Applicant, occurred. I therefore conclude 

that there was no valid reason for the dismissal relating to the Applicant’s capacity or conduct. 

This weighs in favour of a conclusion that the termination was unfair. 

 

Section 387(b) and (c) - notice of reason for dismissal and opportunity to respond   

 

[81] The Applicant was given notice of the reason for her dismissal and an opportunity to 

respond. The matter that is required to be taken into account under s.387(b) of the Act is whether 

the Appellant “was notified of that reason”. Contextually the reference to “that reason” is the 

valid reason found to exist under s.387(a).60 Since I have found that there was no valid reason 

in this case, there is nothing to weigh under this heading. The same view has been adopted in 

relation to s.387(c)61 and the same approach applies.  

 

Section 387(d) - any unreasonable refusal to allow a support person to assist in discussions 

relating to the dismissal 

 

[82] There is no evidence of any refusal to allow a support person to participate in discussions 

relating to the dismissal. This is a neutral consideration in this case. 

 

Section 387(e) – unsatisfactory performance - warnings 

 

[83] The dismissal did not relate to unsatisfactory performance, but rather alleged 

misconduct on the part of the Applicant. This factor is not relevant to the present circumstances. 

 

Section 387(f) and (g) - size of the employer’s business and absence of dedicated human 

resources management specialists or expertise 

 

[84] The nature of the Respondent’s operations, the 2021 Agreement, which covers its 

Sydney and Brisbane operations and the evidence that there was in the order of 250 

employees62, indicates that it is an employer of significant size. The Respondent was plainly 

aware of the need to afford an opportunity to the Applicant to obtain advice, representation and 

time to provide a response to the allegations that were put to her. I do not regard the size of the 

Respondent’s enterprise as having a material impact on the procedures followed in effecting 

the dismissal in this case. The Respondent had dedicated human resource management 

specialists, Mr. Barron and Ms. Mihalopoulos, directly involved in the termination process. 

There was no absence of such specialists and this is a neutral consideration here. 

 

Section 387(h) - other relevant matters 

 

[85] The Applicant has approximately eight years’ service with the Respondent. There was 

some evidence as to her employment history. There was one instance in 2020 where the 








[2023] FWC 2570 

 

32 

Applicant was sent a letter63 about a failure to report for a shift. According to the letter, the 

Applicant provided an explanation, expressed regret and indicated the situation would not recur. 

The letter was in the nature of a warning and no further disciplinary action followed. 

 

[86] There was also evidence that the Respondent had sent a letter dated 3 December 2021 

addressed “Dear Employee” and titled "Absence Management Plan” which referred to the fact 

that more than 13 days of personal leave had been taken over the last twelve months. The 

Applicant accepted that she had received the letter but said it had been sent to most if not all 

employees and was withdrawn following a complaint by the MUA. She said it did not result in 

her being placed on an absence management plan.64 The Applicant submitted that a level of 

absenteeism during the pandemic was not remarkable. The Respondent said that the Applicant 

and approximately 75 other employees had been sent the letter, that it was not withdrawn and 

that it placed the Applicant on an absence management plan for a period of time which had 

expired by the time the events involving the Applicant arose65. 

 

[87] Even accepting the Respondent’s evidence as to the absence management plan in 2021, 

I still consider that the Applicant has a satisfactory work history over an extended period. 

Dismissal in circumstances where she had notified her employer in advance of her absence and 

provided a medical certificate to explain the absence worked harshly against the Applicant. 

These are factors that weigh in favour of a conclusion that the dismissal was unfair.  

 

[88] Having considered each of the matters specified in section 387 of the FW Act, I am 

satisfied that the dismissal of the Applicant was harsh, unjust and unreasonable. I am therefore 

satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW 

Act. 

 

Remedy 

 

[89] In considering an appropriate remedy in a case of unfair dismissal, regard must also be 

had to the legislative object set out in s.381 of the FW Act. This includes an emphasis on the 

remedy of reinstatement66 and on ensuring that a “fair go all round” is accorded to both the 

employer and employee concerned.67 

 

Is reinstatement of the Applicant inappropriate? 

 

[90] The Applicant seeks reinstatement to her previous position and the recovery of lost 

wages. The Respondent opposed reinstatement. Mr. Hughes gave evidence about the deliberate 

misconduct of the Applicant and his resultant loss of trust and confidence in her. He said 

reinstatement would “send the wrong message” to employees. Having regard to my conclusions 

in relation to “valid reason”, this evidence is not persuasive on the issue of reinstatement. I am 

satisfied that the employment relationship can and should be restored. 

 

[91] I consider that reinstatement is the appropriate remedy. I am satisfied that I should make 

an order reappointing the Applicant to the position in which she was employed immediately 

before the dismissal within fourteen days of the date of this decision pursuant to s.391(1)(a). 

An order to that effect will accompany this decision. 

 








[2023] FWC 2570 

 

33 

[92] I also propose to make an order to maintain the continuity of the employment and the 

period of continuous service of the Applicant with the employer pursuant to s.391(2).  

 

Reinstatement - is it appropriate to make an order to restore lost pay? 

 

[93] Section 391(3) of the FW Act provides that, if the Commission makes an order for 

reinstatement and considers it appropriate to do so, the Commission may also make any order 

that the Commission considers appropriate to cause the employer to pay to the Applicant an 

amount for the remuneration lost, or likely to have been lost, by the Applicant because of the 

dismissal. 

 

[94] Section 391(4) of the FW Act provides that, in determining an amount for the purposes 

of such an order, the Commission must take into account: 

 

(a) the amount of any remuneration earned by the Applicant from employment or other 

work during the period between the dismissal and the making of the order for 

reinstatement; and 

 

(b) the amount of any remuneration reasonably likely to be so earned by the Applicant 

during the period between the making of the order for reinstatement and the actual 

reinstatement. 

 

[95] An order to restore lost pay does not necessarily follow an order for reinstatement. The 

Commission may only make an order if it considers it appropriate to do so and only make an 

order that the Commission considers appropriate.68  

 

[96] I consider it to be appropriate in the circumstances to make an order to restore lost pay. 

Such amount should take account of each of the matters referred to in s.391(4). I note that it 

was put in the Applicant’s final written submissions that since the hearing, the Applicant had 

taken steps to mitigate any loss.   

 

[97] The parties are directed to confer and provide agreed orders as to the amount of lost pay 

for the Applicant within seven days from the date of this decision. In the absence of agreement, 

brief written submissions should be provided by that date to enable me to determine the 

appropriate amount to be included in any order. 

 

 

 

 

 

 

 

 

 

 

 

 

 


THE FAIR WORKS LUSTRAL AMISSION THE SE




 



[2023] FWC 2570 

 

34 

 

 

 

 

DEPUTY PRESIDENT 

 
Appearances: 
 

Mr Kirk Bond for the Applicant. 

Mr Paul Brown for the Respondent. 

 
Hearing details: 
 

In-person on Thursday, 10 August 2023. 

 
Final written submissions: 
 

Applicant Final Submissions – 4 September 2023. 

Respondent Final Submissions – 13 September 2023. 

Applicant Final Submissions in Reply – 25 September 2023. 

 

Printed by authority of the Commonwealth Government Printer 

 

PR766888 

 

 

 

 
1 Section 391(2). 

2 Section 391(3). 

3 s 394(2). 

4 Statement of Tahmina Zobair Annexure TZ3, Court Book page 44. 

5 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]. 

6 Statement of Tahmina Zobair paragraph 5 and Annexure TZ2, Court Book page 37. 

7 Ibid, paragraph 6 and Annexure TZ3, Court Book page 44. 

8 Ibid, Annexure TZ4 Court Book page 45. 

9 Transcript PN345. 

10 Exhibit A1 Statement of Tahmina Zobair Annexure TZ3. Exhibit R2 Statement of Luke Barron paragraph 17. 

11 Exhibit A3 Statement of Paul Keating paragraph 10. 

12 Exhibit R1, Annexure GH17. 

13 Ibid, Annexure GH21. 

14 Exhibit R1 paragraph 42(e). 

15 Ibid. 

16 Exhibit R2 Barron Statement says the meeting concluded at 10.50am. Mr Hughes said the meeting concluded at 10.30am.  

17 PR764958. 

18 Statement of Geoff Hughes Annexure GH3, Court Book page 266. 

 






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/awardsandorders/pdf/pr764958.pdf


[2023] FWC 2570 

 

35 

 
19 [2012] FWAFB 2740 (‘DesignInc’). 

20 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at p. 373. 

21 Ibid. 

22 BlueScope Steel (AIS) Pty Ltd v Agas [2014] FWCFB 5993at [63]. 

23 Edwards v Giudice [1999] FCA 1836 (23 December 1999) at paras 6–7. 

24 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) at para. 24. 

See also Yew v. ACI Glass Packaging Pty Ltd [1996] 71 IR 201 at 205-206 per Wilcox J. 
25 [2021] FWCFB 3457. More recently see NSW Trains t/as NSW Trainlink v. Wael Al-Buseri [2023] FWCFB 165 (21 

September 2023). 
26 [2019] FWCFB 5104. 

27 Transcript PN 1096. 

28 DesignInc (n 19). 

29 Transcript PN1208. 

30 See also Barron Statement at para 36(d). 

31 Statement of Paul Keating Annexure PK4. 

32 Statement of Paul Keating Annexure PK10. 

33 Statement of Geoff Hughes, para 67(a). 

34 Ibid 

35 Transcript PN1079 and PN 1100. 

36 See MUA correspondence 20 April 2023 Exhibit R1 Statement of Hughes paragraph 27. 

37 See s.107(3)(a) FW Act. 

38 Section 107(3)(a). 

39 Exhibit R1 Statement of Hughes paragraph 16.  

40 Transcript PN842-843. 

41 Transcript PN244. 

42 Hughes Statement paragraph 40. 

43 PN 1014-1015. 

44 Statement paragraph 40. 

45 Exhibit A1 Statement Zobair paragraph 6. 

46 Statement para 42(e). 

47 Exhibit A3 Keating Statement Annexure PK14. 

48 Transcript PN1170- 1172. 

49 Transcript PN233 and PN374. 

50 For example, transcript PN270 and 375. 

51 Statement para 8 and transcript PN371. 

52 Transcript PN717. 

53 Transcript PN716. 

54 Exhibit R2 Barron, paragraph 18. 

55 Transcript PN461 and following. 

56 Transcript PN1112-1115. 

57 Transcript PN919. 

58 Transcript PN1096 

59 Transcript PN363-364. 

60 See Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 

2000), [41]; Reseigh v. Stegbar Pty Ltd [2020] FWCFB 533 at [55]. 

 






https://www.fwc.gov.au/documents/decisionssigned/html/2012fwafb2740.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb5993.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb3457.htm
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb165.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb5104.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb533.htm


[2023] FWC 2570 

 

36 

 
61 Read v Gordon Square Child Care Centre [2013] FWCFB 762, [46]-[49]. 

62 Transcript PN865. 

63 Exhibit R1 Hughes Statement Annexure GH30. 

64 Exhibit A2 Zobair Statement paragraph 6. 

65 Transcript PN961. 

66 s 381(1)(c). 
67 BlueScope Steel Limited v Sirijovski [2014] FWCFB 2593 at [73]. 

68 Aurora Energy Pty Ltd v Davison PR902108 (AIRCFB, Watson SDP, Williams SDP, Holmes C, 8 March 2001), [25]. 






https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb762.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb2593.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr902108.htm

Cases cited by this decision: