1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Jennifer Roberts
v
Drewmaster Pty. Ltd.
(U2023/8199)
COMMISSIONER RIORDAN SYDNEY, 7 FEBRUARY 2024
Application for unfair dismissal remedy
[1] On 29 August 2023, Ms Jennifer Roberts (the Applicant) filed an application with the
Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal
pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant was dismissed
by Drewmaster Pty Ltd (the Respondent) on 8 August 2023.
[2] The Respondent dismissed 125 employees around the time of the Applicant’s dismissal.
Of those 125 employees, 47 employees made unfair dismissal applications which were
allocated to me. Four of those matters have proceeded to hearing.
[3] The Applicant was employed by the Respondent as Resort Accountant at the Palmer
Coolum Resort, from 13 July 2022 until the date of her dismissal.
[4] The Applicant was employed under a contract of employment.
[5] The Applicant has never received a termination letter from the Respondent.
[6] The matter was heard via video link between the Fair Work Commission offices in
Sydney and Brisbane on Thursday, 7 December 2023. Leave was granted pursuant to s.596 of
the FW Act for both parties to be represented at the Hearing. The Applicant was represented by
Mr T O’Brien of Counsel. The Respondent was represented by Dr R. W. Haddrick of Counsel.
[7] The Applicant gave evidence on her own behalf at the Hearing. Mr Benjamin Wood,
Acting General Manager for the Respondent, gave evidence for the Respondent at the Hearing.
Statutory Provisions
[8] The relevant sections of the FW Act relating to an unfair dismissal application are:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under
Division 4 before considering the merits of the application:
[2024] FWC 332
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 332
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(a) whether the application was made within the period required in
subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal
Code;
(d) whether the dismissal was a case of genuine redundancy.
381 Object of this Part
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on
reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner
of deciding on and working out such remedies, are intended to ensure that a “fair go all
round” is accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was used by Sheldon J in in re Loty and
Holloway v Australian Workers’ Union [1971] AR (NSW) 95.
382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his
or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the
employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts
(if any) worked out in relation to the person in accordance with the
regulations, is less than the high income threshold.
384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the
period of continuous service the employee has completed with the employer atthat time
as an employee.
(2) However:
(a) a period of service as a casual employee does not count towards the
employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic
basis; and
(ii) during the period of service as a casual employee, the employee had a
reasonable expectation of continuing employment by the employer on a
regular and systematic basis; and
(b) if:
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(i) the employee is a transferring employee in relation to a transfer of business
from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when
the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new
employment started that a period of service with the old employer would not
be recognised; the period of service with the old employer does not count
towards the employee’s period of employment with the new employer.
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code;
and
(d) the dismissal was not a case of genuine redundancy.
see section 388.
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable,
the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s
capacity or conduct (including its effect on the safety and welfare of other
employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related
to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person— whether
the person had been warned about that unsatisfactory performance before the
dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to
impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the
procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Applicant’s Submissions
[9] The Applicant submitted that throughout her employment with the Respondent, she had
never been the subject of a warning or disciplinary action, or any allegation of poor
performance.
[10] The Applicant submitted that between 14 July and 2 August 2023, the Applicant learned
of allegations made by Mr Clive Palmer, Company Secretary of the Respondent and Director
of its holding company, Mineralogy International Ltd (Mineralogy), and his son, Mr Michael
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Palmer. The Applicant understood the allegations to be of theft and embezzlement by the
construction workers at the Resort and the Applicant’s managers.
[11] The Applicant submitted that she was invited to two interviews with Mr Wood, wherein
he asked her about the processes she followed in the performance of her duties, and whether
she ‘liked’ her job.
[12] The Applicant submitted that she was not notified of any allegations of misconduct or
poor performance against her prior to her dismissal.
[13] The Applicant submitted that on 3 August 2023, shortly after she arrived at the Resort
for work, she “learned of a rumour that she had been dismissed and ‘walked off site’ by the
Respondent”. The Applicant submitted that she became distressed and commenced a period of
personal leave until 7 August 2023. She then notified the Respondent of her unfitness for work
and provided a medical certificate. A copy of the medical certificate was filed in these
proceedings.
[14] The Applicant submitted that while she was on personal leave, she was contacted by
colleagues who told her that Mr Palmer had accused the Applicant of ‘embezzling millions’
with her line manager and that he had inferred that the Applicant’s absence from work that day
was proof of her ‘guilt’. The Applicant’s colleagues recommended she return to work as soon
as possible.
[15] The Applicant submitted that when she arrived at work on 8 August 2023, she was
unable to log into ‘Tanda’, the application used by the Respondent for timesheets and to record
staff attendance at the Resort. The Applicant submitted that she contacted the colleague who
had recommended she return, who told her words to the effect of, “Oh my god, I’m so sorry. I
meant to tell you. Clive said anyone who wasn’t here yesterday was terminated”.1
[16] On 14 August 2023, the Applicant received a payslip for the period covering 27 July
2023 to 9 August 2023, which she submitted appeared to show that she had been paid her
unused annual leave entitlements.
[17] The Applicant submitted that on 21 August 2023, she sent an email to Mr Wood, seeking
clarification on the status of her employment and pay. The Applicant received a response from
Mr Wood on 22 August 2023, advising her that her ‘outstanding wages and entitlements’ would
be paid in full on 25 August 2023.2
[18] The Applicant submitted that she received a further email from Mr Wood on 24 August
2023, wherein he advised that her employment had been terminated “without notice on grounds
of serious misconduct”.3 The Applicant submitted that this was the first time she learned of the
allegations of misconduct against her. The Applicant submitted that she was not provided any
further information about the alleged misconduct, and has never received a letter of termination.
[19] The Applicant noted that the Form F3 – Employer’s Response filed by the Respondent
in this matter purports to set out the reasons for her dismissal.
Harsh, unjust or unreasonable
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Section 387(a) – Valid reason for dismissal
[20] The Applicant submitted that in respect of s.387(a) of the FW Act, the Full Bench has
summarised the ‘well-established’ principles as including:
“(1) A valid reason is one which is sound, defensible and well-founded, and not
capricious, fanciful, spiteful or prejudiced.
(2) When the reason for termination is based on the misconduct of the employee the
Commission must, if it is in issue in the proceedings, determine whether the conduct
occurred and what it involved.
(3) A reason would be valid because the conduct occurred and it justified termination.
There would not be a valid reason for termination because the conduct did not occur or
it did occur but did not justify termination (because, for example, it involved a trivial
misdemeanour).
(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct
sufficiently serious to justify summary dismissal on the part of the employee in order to
demonstrate that there was a valid reason for the employee’s dismissal (although
established misconduct of this nature would undoubtedly be sufficient to constitute a
valid reason).
(5) Whether an employee’s conduct amounted to misconduct serious enough to give rise
to the right to summary dismissal under the terms of the employee’s contract of
employment is not relevant to the determination of whether there was a valid reason
for dismissal pursuant to s 387(a).
(6) The existence of a valid reason to dismiss is not assessed by reference to a legal
right to terminate a contract of employment.
(7) The criterion for a valid reason is not whether serious misconduct as defined in reg
1.07 has occurred, since reg 1.07 has no application to s 387(a).
(8) An assessment of the degree of seriousness of misconduct which is found to constitute
a valid reason for dismissal for the purposes of s 387(a) will be a relevant matter under
s 387(h). In that context the issue is whether dismissal was a proportionate response to
the conduct in question.
(9) Matters raised in mitigation of misconduct which has been found to have occurred
are not to be brought into account in relation to the specific consideration of valid
reason under s 387(a) but rather under s 387(h) as part of the overall consideration of
whether the dismissal is harsh, unjust or unreasonable.”4
[21] The Applicant submitted that she was summarily dismissed and was not provided notice
nor paid in lieu of her notice period.
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[22] The Applicant submitted that since her dismissal, the Respondent has provided four
separate reasons for her termination:
“(a) on the date of termination, that the Applicant was not at work on 7 August 2023;
(b) in the Respondent’s Form F3:
(i) ‘The Timesheet Issue’; and,
(ii) the ‘Theft Issue’; and,
(c) in the Applicant’s separation certificate, “Unsatisfactory work performance”.”
Attendance at work on 7 August 2023
[23] The Applicant submitted that on the date of the termination of the Applicant’s
employment, being 8 August 2023, she was advised that the reason for her termination was that
she was not in attendance at work the day before. The Applicant submitted that she had been
on a period of personal leave which she commenced on 3 August 2023. The Applicant
submitted that she was unwell and entitled to utilise her accrued personal leave on 7 August
2023.
[24] The Applicant submitted that she had notified the Respondent of her intention to take
personal leave. She submitted that her non-attendance at work on 7 August 2023 was
authorised, and was not a valid reason for her dismissal.
The Timesheet Issue
[25] The Applicant submitted that in the Form F3, which is the Respondent’s only
articulation of this purported allegation against the Applicant, the Respondent claims:-
“(a) that the Respondent’s new management team directed all staff to adhere to the
TANDA timesheet procedure, which required each employee to enter a unique personal
identification number at entrances to the work site to “clock- in” and “clock-out””;
(b) that the day after that direction was issued, on 7 August 2023, a ‘substantial number
of employees’ were unable to log in because they did not know their unique code;
(c) a ‘safeguard’ against abuse of is that the employees must also have their photo taken
when they log in to TANDA;
(d) at an unknown time, the Respondent ‘discovered’ that the Applicant and another
employee were “frequently logged in without a photo”; and,
(e) in the premises of the above, the Applicant had not adhered to the TANDA timesheet
policy and was “paid despite there being no record of [her] attendance at work” on
109.5 days.”
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[26] The Applicant submitted that the Respondent’s conclusion that she did not work those
109.5 days, and that someone else must have logged in for her, is premised on two assertions:
“(a) that the Respondent had a ‘TANDA timesheet procedure’ which required the
Applicant to take a photo of herself every day that she worked; and,
(b) that the Applicant did not take a photo of herself every day she worked.”
[27] As to the first assertion, the Applicant stated that she was never directed to provide a
photo upon login.5 The Applicant submitted that she was never made aware of any requirement
that she do so, and has no knowledge of the ‘Tanda timesheet procedure’ which the Respondent
alleges she failed to adhere to. The Applicant submitted that if the Respondent has such a policy,
it was never provided to the Applicant, and, it was not implemented or enforced.
[28] As to the second assertion, the Applicant did not dispute that she did not take a photo of
herself each day that she worked. The Applicant submitted that she logged in using Tanda every
day that she performed work for the Respondent. She noted that there is no assertion that she
did not log in.
[29] The Applicant submitted the fact that she did not provide a photo each time she logged
in does not mean she did not work, or that some other person logged her in.
[30] The Applicant submitted that the Respondent ought to have access to incontrovertible
evidence that she attended and performed work on the days she was paid to do so, which she
does not have access to, such as:
“(a) the access records from the Resort’s front gate, which the Applicant was required to
seek access to enter every day she worked by calling a number;
(b) CCTV from the Resort, which will show the Applicant physically present and
working at the Resort; and,
(c) work-related communications from the Applicant to her colleagues, such as
emails, which she created in the performance of her work.”
(My emphasis)
[31] The Applicant submitted that the Commission cannot be satisfied that she did not work
on the days she did not take a photo of herself, or that the Applicant arranged for some other
person to log her in.
[32] The Applicant submitted that in the event the Commission is satisfied the Respondent
required the Applicant to take a photo of herself when she logged in, and that the Applicant
failed to comply with that requirement, the Commission cannot be satisfied that conduct
justified termination, including because:
“(a) the Applicant had no knowledge of that requirement;
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(b) the Applicant was never cautioned about her non-compliance with that requirement;
(c) the Respondent did not enforce that requirement; and,
(d) the conduct is not sufficiently serious to justify termination.”
The Theft Issue
[33] The Applicant submitted that also in the Form F3, which is again the only articulation
of this allegation that has been provided to the Applicant, which alleges that the Applicant:
“(a) was responsible for the ‘oversight’ of the $15,000 in petty cash kept at the Resort;
(b) failed to regularly reconcile the petty cash with the purchases made; and,
(c) ensured that all purchases were in accordance with the purposes for which the petty
cash was intended to be used.”
[34] The Applicant submitted that she was not, at any time, responsible for the oversight of
the petty cash. The Applicant submitted that the extent of her involvement in the management
of the petty cash was limited to reconciling the receipts provide by Mr Brendon Carr, the
Purchasing Officer, with the purchases made and entering a ‘journal entry’ in the Respondent’s
accounting software reflecting the reconciliation.
[35] The Applicant’s evidence was that she completed the reconciliation each month, and
that the receipts aligned with the purchases made.6
[36] The Applicant submitted that she was not, at any time, responsible for ensuring that the
purchases made with petty cash were appropriate or in accordance with the purpose of the petty
cash. The Applicant submitted that the Commission cannot be satisfied that the alleged conduct,
summarised above, occurred.
Unsatisfactory work performance
[37] The Applicant submitted that she was first notified of an allegation of unsatisfactory
work performance on 20 October 2023, more than two months after her dismissal, when she
was provided a Separation Certificate from the Respondent. The Applicant submitted, however,
that the Separation Certificate does not provide any detail as to the basis for the allegation that
the Applicant’s work performance was unsatisfactory.
[38] The Applicant submitted that at no time during her employment with the Respondent
was she cautioned about her performance or notified of any concerns about her performance.
[39] The Applicant submitted that for all of the above reasons, the Commission can be
satisfied that there was no valid reason for her dismissal related to her performance.
Section 387(b) – whether the person was notified of that reason
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[40] The Applicant submitted that she was notified of one reason for her dismissal, namely,
her non-attendance at work on 7 August 2023 while she was on personal leave.
[41] The Applicant submitted that she was not notified of the other reasons for which the
Respondent now claims to be the reason that she was terminated.
Section 387(c) - whether the person was given an opportunity to respond to any reason related
to the capacity or conduct of the person
[42] The Applicant submitted that she was not given an opportunity respond to any reason
related to her capacity or conduct.
Section 387(d) - any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal
[43] The Applicant did not submit there was a failure to allow her to have a support person
present to assist at any discussions relating to her dismissal, because there were no such
discussions.
Section 387(e) - if the dismissal related to unsatisfactory performance by the person—whether
the person had been warned about that unsatisfactory performance before the dismissal
[44] The Applicant’s evidence was that she had never been warned about unsatisfactory
performance prior to her dismissal.7
Section 387(f) and (g) – 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 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
[45] The Applicant submitted that at the time of her dismissal, the Respondent was a
substantial employer in that it employed approximately 200 employees and had a dedicated
human resource management team.
[46] The Applicant submitted that a Full Bench has observed that a substantial employer,
with dedicated human resources personnel and access to high-level legal advice has no reason
not to follow fair procedures.8
Section 387(h) - any other matters that the FWC considers relevant.
[47] The Applicant relied on the Decision of McHugh and Gummow JJ in Byrne v Australian
Airlines Ltd (1995) 185 CLR 410 at [465], which stated:
“... It may be that the termination is harsh but not unjust or unreasonable, unjust but not
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the
concepts will overlap. Thus, the one termination of employment may be unjust because
the employee was not guilty of the misconduct on which the employer acted, may be
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unreasonable because it was decided upon inferences which could not reasonably have
been drawn from the material before the employer, and may be harsh in its consequences
for the personal and economic situation of the employee or because it is
disproportionate to the gravity of the misconduct in respect of which the employer
acted.”
[48] The Applicant submitted that even where there is a valid reason, reaching an overall
determination of whether a given dismissal was harsh, unjust or unreasonable involves a
weighing process. The Applicant submitted that the Commission is required to consider all the
circumstances of the case, having particular regard to the matters specified in s.387 of the FW
Act, and then, to give effect to ‘a fair go all round’, weigh the gravity of the misconduct and
other factors “weighing in favour of the dismissal not being harsh, unjust or unreasonable
against the mitigating circumstances and other relevant matters that may properly be brought
to account as weighing against a finding that dismissal was a fair and proportionate response
to the particular misconduct.”9
[49] The Applicant submitted that the dismissal is unjust, in that:
“(a) the Applicant did not engage in misconduct or serious misconduct for the reasons
outlined above; and,
(b) the Applicant’s performance was not unsatisfactory.”
[50] The Applicant submitted that the dismissal is unreasonable, as:
“(a) the Respondent’s findings that:
(i) the Applicant had been the subject of a requirement that she take a photo of
herself when she logged in every day;
(ii) the Applicant had not worked the subject 109.5 days that she did not take a
photo of herself;
(iii) the Applicant was responsible for the oversight of the petty cash;
(iv) the Applicant had not reconciled the petty cash;
were not available to it on the evidence.”
[51] The Applicant submitted that various circumstances otherwise render the dismissal
harsh, including:
“(a) the Applicant first learned of her termination upon arriving at work and being unable
to log in, and then being advised over the phone by a colleague;
(b) the Applicant’s dismissal was not confirmed to her until she sought clarification
about the status of her employment, and the dismissal was then confirmed to her by
email;
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(c) the Applicant was not notified of the purported reasons for her dismissal until after
she had commenced these proceedings;
(d) the absence of any allegations of poor performance or misconduct;
(e) the absence of any prior formal or informal disciplinary action taken against her;
(f) the difficulties the Applicant has found in securing commensurate employment; and,
(g) the personal impact on the Applicant.”
Relief – Compensation
[52] The Applicant noted that the Commission must not order the payment of compensation
to her unless:
“(a) it is satisfied that reinstatement is not appropriate; and,
(b) it considers an order for compensation is appropriate in all of the circumstances.”10
[53] The Applicant submitted that reinstatement is the primary remedy and compensation is
available as a remedy only when reinstatement is inappropriate. The Applicant submitted that
reinstatement is not an appropriate remedy and is not sought. The Applicant has therefore
sought an order for compensation.
[54] In relation to quantum, the Applicant submitted that but for her dismissal, she would
have remained in employment for the foreseeable future, and likely until she retired.
[55] The Applicant submitted that having regard to the matters at s.392(2) of the FW Act:
“(a) an order of compensation would have no effect on the viability of the Respondent’s
enterprise;
(b) the Applicant’s length of service was just over 12 months;
(c) the Applicant is 59 years of age;
(d) the Applicant would have continued to receive remuneration at her usual rate
(representative pay slips form part of the evidence of the Applicant);
(e) the Applicant has attempted to obtain employment since her dismissal, but has been
unsuccessful;
(f) the Applicant has not earned any income since her dismissal;
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(g) it is difficult to estimate what if any income the Applicant may receive during the
period of the making of the order for compensation and the actual compensation, as she
has not yet been successful in any alternative role;
(h) there is no basis for the Commission to conclude that the Applicant has engaged in
misconduct but, if the Commission did reach this conclusion but nevertheless believed
that the Applicant had been unfairly dismissed, any reduction for misconduct should be
nominal having regard to the Applicant’s prior good history.”
[56] For all of the above reasons, the Applicant submitted that there are no matters that would
warrant any reduction in the compensation payable. The Applicant therefore sought the
maximum amount of compensation available, being 26 weeks’ pay.
Respondent’s Submissions
[57] The Respondent submitted that the Applicant commenced employment at the Resort on
13 July 2022, at which time the Respondent employed approximately 200 staff, primarily in
connection with the refurbishment of the Resort (the ‘Project’).
[58] The Respondent submitted that the Project is a significant undertaking and involves the
refurbishment of 180 accommodation rooms spread over approximately 45 individual buildings
as well as several ancillary buildings, including central lounge areas, dining spaces and
conference rooms.
[59] The Respondent submitted that as a part of the Project, the Respondent was routinely
required to pay third-party creditors for goods and services provided to the Respondent in
relation to the Project. The Respondent submitted that as an Accountant for the Respondent,
the Applicant was responsible for the Accounts Payable, Payroll and petty cash, and, as such,
the Applicant held a position of trust with the Respondent.
[60] The Respondent submitted that in or about July 2023, it became apparent to the owners
of the Resort, Palmer Leisure Coolum Pty Ltd, and the Respondent’s parent company (and sole
source of financial support for the Project) Mineralogy Pty Ltd, that the Project was a distressed
project which required significant management intervention in order to turn around the viability
of the renovations.
[61] The Respondent submitted that on 8 August 2023, the Applicant was dismissed from
her employment with the Respondent. It submitted that by email to the Applicant on 24 August
2023, the Respondent confirmed that the Applicant’s employment was terminated without
notice on grounds of serious misconduct. The Respondent submitted that the elapsed time in
providing the Applicant confirmation of her termination is explained in the witness statement
and evidence of Mr Benjamin Wood.
[62] The Respondent submitted that the employee with sole responsibility for Human
Resources, Ms Jennifer Muller, was also terminated on 8 August 2023, and the Respondent
employed no other person with specialised human resources knowledge.
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[63] The Respondent submitted that for the reasons set out below, the Applicant was
summarily dismissed on grounds of serious misconduct, and that the Applicant’s dismissal was
not harsh, unjust or unreasonable.
Section 387(a) – Valid reason for dismissal
[64] The Respondent submitted that Regulation 1.07 of the Fair Work Regulations 2009
(Cth) sets out the meaning of “serious misconduct”, providing:
“(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct
has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the
following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the
continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the
following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault; or
(iv) sexual harassment;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that
is consistent with the employee’s contract of employment.”
[65] The Respondent submitted that s.117 of the FW Act provides that an employer must not
terminate an employee without sufficient notice or payment in lieu of notice; however, this
provision does not apply to employees terminated for serious misconduct.
Implied Duties
[66] The Respondent submitted that as a consequence of the employment relationship, the
Applicant owed the Respondent some implied duties. The Respondent submitted that the
Applicant had an implied contractual duty of good faith and loyalty, or fidelity, to the
Respondent.11 The Respondent submitted that given the Applicant’s position of seniority in the
business, and the level of trust in dealing with the Respondent’s financial affairs (that is,
managing accounts payable), the duty of good faith and fidelity owed by the Applicant to the
Respondent are heightened.12 Further, the Respondent submitted that the Applicant owed the
Respondent an implied contractual duty to exercise reasonable care and skill in the performance
of her employment duties.13
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[67] The Respondent submitted that employees (that is, along with senior executives and
officers) may owe the business a fiduciary duty, depending on the circumstances.14 The
Respondent submitted that the more senior the employee, the more likely that the obligations
the employee owes to the employer will include a fiduciary duty. It submitted that employees
of relative seniority within an organisation (such as employees with managerial responsibilities)
will owe fiduciary duties to their employer.15
[68] Here, the Respondent cited the decision in Warman International Ltd v Dwyer,16 in
which the High Court observed that the rule a fiduciary cannot profit from his trust is said to
have two purposes:
(1) that the fiduciary must account for what has been acquired at the expense of the trust,
and
(2) to ensure that fiduciaries generally conduct themselves “at a level higher than that
trodden by the crowd”.
The objectives that the rule seeks to achieve are to preclude the fiduciary from being swayed
by considerations of personal interest and from misusing the fiduciary position for personal
advantage or to the employer’s detriment.
Discovery of facts after termination
[69] The Respondent submitted it is trite to observe that an employer is entitled to rely upon
conduct discovered after the dismissal as justifying the dismissal;17 and submitted that it does
so.
[70] The Respondent submitted that the Applicant, in her position as an Accountant, has
engaged in conduct to the detriment of the Respondent. The Respondent submitted that the
Applicant says that she “only started being involved with the petty cash, approximately three
months before I was dismissed, on or around June 2023, because Jenn Muller advised me that
she did not have time to reconcile the cash”.18 The Respondent submitted this is incorrect as
the reconciliation of petty cash was the responsibility of an Accountant; not human resources.
[71] The Respondent submitted the Applicant’s evidence is that:
“(a) she failed to carry out her duty to reconcile the petty cash, from the commencement
of her employment in July 2022 until June 2023;
(b) in dereliction of her duties, she permitted the human resources employee to take
$10,000.00 from the Respondent’s earnings, on a monthly basis, contrary to proper
process. This has caused a financial detriment to the Respondent in the amount of the
“taken earnings”;
(c) she failed in her duties to approve petty cash expenditures; and
[2024] FWC 332
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(d) has evinced a seriously flawed understanding of proper processes for petty cash
expenditures.”
[72] The Respondent submitted that in respect of sub-paragraph (d) above, Mr Wood gives
evidence that as to the petty cash process:
“(a) petty cash is used for amounts less than $300, and must be accompanied by a formal
petty cash request;
(i) a delegation of authority is to be attached if approved by a person acting in
the role;
(ii) supporting documents are to be attached to the request; and
(iii) the request is to be approved by the Purchasing Officer, and disbursed by
the Applicant.
(b) petty cash should not be replenished from earnings.”
[73] The Respondent submitted the purpose of this petty cash process is to:
“(a) encourage and promote accountability when purchasing;
(b) allow for purchases to be audited;
(c) minimise exploitation by staff;
(d) ensure managerial oversight of expenditure; and
(e) provide current task information to allow an accurate decision for expenditure to be
made or not made.”
[74] The Respondent submitted that following the termination of the Applicant, a review of
the petty cash process employed by the Applicant has been undertaken. It submitted that the
review undertaken by the Respondent reveals a number of serious matters concerning the
Applicant’s conduct.
[75] The Respondent submitted that during the Applicant’s employment, the Applicant failed
in her duty to approve any petty cash requests, as required, and petty cash was approved and
disbursed by the same person (the Purchasing Officer, Mr Carr). The Respondent submitted
that this was despite the Applicant being aware that petty cash was being used and replenished
from takings.
[76] Further, the Respondent submitted that petty cash was regularly used for amounts
exceeding $300, contrary to the purchasing policy, including payment for the “back pay of
wages”. The Respondent submitted that wages are not within the purposes for which the petty
cash is intended to be used. It submitted that this was a misappropriation of the funds.
[2024] FWC 332
16
[77] The Respondent submitted that, as a consequence, if the Commission finds that petty
cash has been used for back pay, then this can only be explained by concluding that there has
been:
“(a) the fraudulent use of those funds; or
(b) the serious negligent performance of the Applicant’s duties in processing payroll in
that the Applicant has a duty to exercise reasonable care and skill in the performance
of her employment duties.”
[78] The Respondent submitted that had the Applicant carried out the functions of her role
with reasonable care and diligence (including the disbursement of petty cash), the above
expenditures would not have been made.
[79] Further, the Respondent submitted that employees in supervisory or management
positions are under a duty to report serious breaches of duty by other employees.19 The
Respondent submitted that the Applicant’s role and responsibility within the Respondent’s
business warrants such a conclusion. It submitted that the Applicant clearly failed, without any
justification whatsoever, to report this serious breach of duty by the Purchasing Officer in
approving and disbursing petty cash, contrary to the proper processes.
[80] The Respondent cited the decision in Jimenez v Accent Group T/A Platypus Shoes
Australia Pty Ltd,20 in which Cambridge C found that an applicant’s failure to properly record
and receipt cash provided in respect of a purchase, established a valid reason for the dismissal,
and that the misconduct in mishandling of the cash represented serious misconduct that would
justify dismissal without notice. The Respondent also cited the decision in Cini v Plenty Valley
Services Association Inc,21 in which Ryan C held that the “use of a cash account in a form
which was not properly recorded or accounted for” was a valid reason for dismissal.
[81] The Respondent submitted that the Applicant’s “serious dereliction of her duties over
an extended period of time”:
“(a) was a serious misuse of the trust and confidence placed in the applicant as an
accountant (in breach of the good faith requirement);
(b) was a serious breach of the Applicant’s duty to exercise reasonable care and skill in
performing her role as an accountant;
(c) if it is concluded that the Applicant had a fiduciary duty to the Respondent, then the
Applicant’s conduct was a breach of that fiduciary duty;
(d) constituted serious misconduct;
(e) was incompatible with the continuation of the Applicant’s employment with the
Respondent; and
(f) justified the dismissal of the Applicant.”
[2024] FWC 332
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Section 387(b)
[82] The Respondent relied on the witness statement of Mr Wood as explaining the
circumstances surround the Applicant’s dismissal. The Respondent submitted that the written
termination confirmation notified the Applicant for the reason for her dismissal, was serious
misconduct.
Section 387(c)
[83] The Respondent submitted that the Applicant was not precluded from any opportunity
to respond.
Section 387(d)
[84] The Respondent submitted that there is no evidence that the Applicant was refused or
prevented from having a support person, and the Applicant does not submit there was a failure
on the part of the Respondent in this regard.
Section 387(e)
[85] The Respondent conceded that the Applicant had not been warned about unsatisfactory
performance prior to her dismissal but submitted that the Applicant’s misconduct was serious
misconduct warranting summary dismissal.
Section 387(f) and (g)
[86] The Respondent conceded that around the time of the Applicant’s dismissal it had 196
employees. It submitted that Ms Muller was the Respondent’s only human resources personnel,
however, Ms Muller was also dismissed on 8 August 2023 for serious misconduct. The
Respondent submitted that neither it, nor its parent company employs any dedicated human
resources staff with specialised knowledge or experience.
[87] The Respondent submitted that on the date immediately following the Applicant’s
dismissal, the Respondent employed 58 staff at the Resort.
[88] Further, it submitted that the Applicant’s dismissal occurred in the context of the
“Emergency”, as defined in the Form F3 – Employer’s Response:
“Before the termination, the Respondent had discovered serious misconduct on the part
of a substantial number of employees on what can only be described as an extraordinary
scale. The serious misconduct included:
a. a large number of employees were not attending the work site but were
being ‘signed in’ by other employees who were working. Such workers were paid
despite not working (“Timesheet Issue”);
[2024] FWC 332
18
b. employees were taking an extra paid break of 30 minutes, Monday to
Thursday, contrary to the terms of employment and were not working to the
agreed specified hours of employment (“Additional Paid Break Issue”);
c. employees with no authority whatsoever were routinely issuing purchase
orders to third-party suppliers and incurring debts on behalf of the Respondent
to third-party suppliers for very significant amounts (exceeding $10,000 on
numerous individual occasions and for some suppliers totalling as much as
$700,000) (“Purchase Order Issue”);
d. unauthorised, unnecessary and destructive work had been carried out
which caused significant loss and damage to the owners of the Resort. This work
appears to have been done for the primary purposes of:
(i) creating further work and extending the duration of the Project;
(ii) extending the period for which employees would be required on the
Project; and
(iii) removal of valuable materials from structures which were then
taken from site without authorisation, unjustly enriching employees.
Examples include complete strip out of all fixtures and fittings of villas, the pool
room, night club and restaurant fit-out (i.e., of internal walls, cupboards,
benches, and bathrooms down to the removal of copper piping) (“Destruction
Issue”);
e. the theft and sale of loose furniture and fittings running to a value of
more than $1M, (including the valuable materials referred to in paragraph
10(d)(iii), above) (“Theft Issue”); and
(together, “the Emergency”).”
[89] The Respondent submitted that its conduct ought to be viewed in this context.
Section 387(h) – any other matter
[90] The Respondent submitted that to the extent it is a relevant matter that ought to be
brought to the notice of the Commission, the Respondent is in the process of preparing a claim
against the Applicant to be commenced in a court of competent jurisdiction, relating to “the
Timesheet Issue”. It submitted that the claim, for unjust enrichment (and seeking the remedy of
restitution), will be for the sum of money amounting to the overpayments received by the
Applicant.
[91] The Respondent submitted that it was not aware of any other relevant matter to be
brought to the notice of the Commission.
Applicant’s Materials in Reply
[2024] FWC 332
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[92] The Applicant filed a Witness Statement in Reply, which relevantly provided as follows.
Petty Cash
[93] The Applicant referred to an assertion by Mr Wood in his Witness Statement that the
petty cash request form stated it “should be used for amounts less than $300”. The Applicant
stated, however, that on or around 1 August 2022, she was told by Mr Carr that the $300 limit
was not a mandatory or strict limit.
[94] The Applicant stated that when she was first involved in handling the petty cash in mid-
2023, she was advised that it was replenished by the earnings of the golf shop. She understood
that Mr Carr provided Mr James McDonald, General Manager, the petty cash forms to ‘sign
off’ each month before the petty cash was replenished. The Applicant stated she knew this
because she collected the petty cash forms from Mr McDonald’s office after he had approved
them.
[95] The Applicant stated that the petty cash approval and disbursement process was
established and in place when she commenced work with the Respondent in July 2022. The
Applicant also noted that before she started with the Respondent, there was no accountant at
the resort, and therefore all accounting reconciliations, including the petty cash, were performed
by Mineralogy’s Brisbane finance team.
[96] The Applicant stated that she had questioned Mr Paul Crangle, Head of Golf Operations,
and Mr Carr when she commenced with the Respondent about why the Resort maintained such
a large amount of petty cash. She stated that she was told by Mr Carr that it was “because Clive
Palmer had a poor credit rating with local suppliers and the Resort was unable to obtain
accounts or credit, so [they] had to pay cash for some goods and services”.22 The Applicant
stated that in her 30 years of accounting experience, she had not come across such a system.
[97] The Applicant stated, however, that when she learned the practice had been established
for some time and was known to and approved by the finance team at Mineralogy, she felt
assured that it was not a problem.
[98] The Applicant stated that for most of her employment with the Respondent, she did not
handle any of the physical petty cash. However, she stated that in or around June 2023, she took
over the handling and counting of the physical cash from Ms Muller. She stated that she took
over those duties as Ms Muller did not have time to do those tasks anymore. The Applicant
stated that from that time until her dismissal, she was responsible for reconciling the petty cash
with the purchases, entering that information into MYOB, reconciling the physical cash, and
reimbursing the petty cash with the golf shop earnings.
[99] The Applicant referred to a statement by Mr Wood in his Witness Statement that “in
circumstances where the disbursement was signed by a human resources personnel as the
‘cashier’, I consider this to be a serious dereliction of the Applicant’s duties…”. The Applicant
stated that throughout her employment with the Respondent, they had very few administrative
staff. Therefore, staff were required to perform duties they might not ordinarily be required to
perform – including, for example, Ms Muller’s involvement in the petty cash process.
[2024] FWC 332
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[100] The Applicant noted that Mr Wood has also stated she did not “exercise a reasonable
degree of care and diligence in her dealings with the petty cash”. The Applicant disputed this,
stating that in all of the months she was involved in the petty cash, she ensured that all of the
expenses were reconciled. The Applicant stated that, in accordance with her first Witness
Statement, Ms Elaine Luck, Finance Manager for Mineralogy, had confirmed to the Applicant
on 28 September 2023 that there were no issues with the petty cash and that there was no money
unaccounted for.
[101] The Applicant noted that Mr Wood has claimed he was not able to find any petty cash
request forms after 28 April 2023. In response, the Applicant stated she did not know why he
would not be able to find the forms, as each month Mr Carr sent copies to the Applicant and to
Ms Luck and Ms Lui, who is an Accountant at Mineralogy. She recalled being sent copies each
month until her termination. The Applicant stated that she used those forms to create
reconciliation spreadsheets. Annexed to the Applicant’s reply statement is a copy of the petty
cash reconciliation spreadsheet for June 2023, which she said was sent to her by Mr Carr.
[102] In relation to a statement by Mr Wood that the only reason he could think of for petty
cash being used for backpay is “negligent error in the payment of salary” or “some other
malicious purpose”, the Applicant stated that she was not negligent in her payroll processing
duties. The Applicant stated that the only reason petty cash was used to back-pay employees
was to make sure they received what they were entitled to and could pay their mortgages and
put food on the table.
[103] The Applicant stated that the Tanda system used by the Respondent was highly
unreliable and therefore resulted in “significant and onerous manual adjustments”. The
Applicant stated that as a result, on occasions, errors were not caught before the payroll was
processed and it would therefore be necessary to use the petty cash to correct errors in the
payroll system. The Applicant stated that each time petty cash was used to backpay an
employee, it was approved by Mr Wong, the Chief Financial Officer of Mineralogy, and Ms
Luck. She stated that those payments were never made without approval from the finance team
at Mineralogy.
[104] Regarding Mr Wood’s assertion that on 3 August 2023, the Applicant told him she
“cannot handle this anymore”, “I’m finishing” and “I’m going to see a doctor”, the Applicant
stated that she did not say “I’m finishing” or any words to that effect. The Applicant conceded
that she was emotional from the stress of the previous weeks, however, stated that she had no
intention of finishing her employment with the Respondent. The Applicant stated that if she
had intended to resign, she would not have sent in her medical certificate the next day.
[105] Further, the Applicant did not recall speaking to Mr Wood at all that day, only Mr
McDonald.
[106] While Mr Wood has asserted that the Applicant took all of her belongings home that
day, the Applicant stated that this was not true. The Applicant stated that when she left the
office that day, she took some food she had in the fridge, some hand cream, and a few pieces
of clothing from her office. She stated that she did not collect all of her personal belongings
from the office, as she intended to return when she felt better.
[2024] FWC 332
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[107] Regarding an allegation by the Respondent that she failed to adhere to the ‘Tanda
Timesheet Procedure’, the Applicant stated that she did not know of any written or formalised
timesheet procedure. The Applicant stated that if she did not sign into Tanda each day, she
would not have been paid as payroll was processed using the timesheets produced by the Tanda
sign in records. As to the table produced by Mr Wood regarding the Tanda data, the Applicant
stated that she did not recognise this table and it is not a format that Tanda exports to.
[108] The Applicant stated that she still had access to fourteen timesheets downloaded through
Tanda as a result of her involvement in the payroll process.
[109] The Applicant stated that she would start the payroll process around 4am on the relevant
days so that it could be completed in time for the other resorts to start their payroll. She stated
that she often did that work at home, which had been approved by Mr McDonald.
[110] Further, the Applicant stated that from those fourteen timesheets, her legal
representative had extracted the data relevant to her which showed the timestamps of her
signing in and out of Tanda each day in those fortnights. The Applicant stated that the data
shows she worked at least 76 hours in each of those fortnights.
[111] The Applicant stated that there were some days she did not have access to Tanda,
including when she worked from the Brisbane Mineralogy office. She stated that on those days,
she called Mr Crangle and asked him to sign her in and out of Tanda to ensure she was paid for
those days of work. The Applicant noted there would also have been other records of her
working those dates, including emails sent and calls logged.
Consideration
[112] I have taken into account all of the submissions that have been provided by the parties
and I have attached the appropriate weight to the evidence of the witnesses.
[113] It is not in dispute, and I find, that the Applicant is protected from unfair dismissal,
submitted her application within the statutory timeframe, was not made genuinely redundant
and did not work for a Small Business.
[114] When considering whether a termination of an employee was harsh, unjust or
unreasonable, the oft-quoted joint judgement of McHugh and Gummow JJ in Byrne v
Australian Airlines (Byrne)23 is of significance:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the
concepts will overlap. Thus, the one termination of employment may be unjust because
the employee was not guilty of the misconduct on which the employer acted, may be
unreasonable because it was decided upon inferences which could not reasonably have
been drawn from the material before the employer, and may be harsh in its consequences
for the personal and economic situation of the employee or because it is
disproportionate to the gravity of the misconduct in respect of which the employer
acted.”
[2024] FWC 332
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[115] In analysing Byrne, a Full Bench of the Australian Industrial Relations Commission in
Australian Meat Holdings Pty Ltd v McLauchlan (AMH)24 held:
“The above extract is authority for the proposition that a termination of employment may
be:
• unjust, because the employee was not guilty of the misconduct on which
the employer acted;
• unreasonable, because it was decided on inferences which could not
reasonably have been drawn from the material before the employer; and/or
• harsh, because of its consequences for the personal and economic
situation of the employee or because it is disproportionate to the gravity of the
misconduct”.
[116] Further, a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd25 said:
“[24] The question of whether the alleged conduct took place and what it involved is to
be determined by the Commission on the basis of the evidence in the proceedings before
it. The test is not whether the employer believed, on reasonable grounds after sufficient
enquiry, that the employee was guilty of the conduct which resulted in termination”.
.
[117] I now turn to the criteria for considering harshness as provided in s.387 of the Act.
Section 387(a) - Valid Reason
[118] The meaning of the phrase “valid reason” has been universally drawn from the
judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd:26
“In broad terms, the right is limited to cases where the employer is able to satisfy
the Court of a valid reason or valid reasons for terminating the employment connected
with the employee’s capacity or performance or based on the operational requirements
of the employer. …
In its context in s 170DE(1), the adjective “valid” should be given the meaning of
sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or
prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same
time the reason must be valid in the context of the employee’s capacity or conduct or
based upon the operational requirements of the employer’s business. Further, in
considering whether a reason is valid, it must be remembered that the requirement
applies in the practical sphere of the relationship between an employer and an employee
where each has rights and privileges and duties and obligations conferred and imposed
on them. The provisions must “be applied in a practical, commonsense way to ensure
that” the employer and employee are each treated fairly…”.
[119] In Rode v Burwood Mitsubishi,27 a Full Bench of the Australian Industrial Relations
Commission held:
[2024] FWC 332
23
“… the meaning of s.170CG(3)(a) the reason for termination must be defensible
or justifiable on an objective analysis of the relevant facts. It is not sufficient for
an employer to simply show that he or she acted in the belief that the termination was
for a valid reason.”
[120] In Qantas Airways Ltd v Cornwall (Cornwall)28 the Full Court of the Federal Court of
Australia said:
“The question is whether there was a valid reason. In general, conduct of that kind
would plainly provide a valid reason. However, conduct is not committed in a vacuum,
but in the course of the interaction of persons and circumstances, and the events
which lead up to an action and those which accompany it may qualify or characterize
the nature of the conduct involved.”
(My emphasis)
[121] The Respondent was of the opinion that the Applicant had resigned her employment.
Mr Wood is entitled to hold this personal view based on his recollection of the conversation
and the fact that the Applicant appeared to have been packing up her office. However, the fact
that Mr Wood held this view does not make it correct or accurate. The Applicant is an
accountant. Every accountant I know is a methodical, systems-based person who wants a paper
trail for everything. That is the way that accountants are trained and how they operate. It is not
in dispute that the Applicant did not supply a written resignation. I have taken this into account.
[122] I agree that if the Applicant had resigned it would have been illogical to then send
through her doctors certificates. There is no utility of sending through doctors certificates if you
are no longer employed. I am satisfied that this behaviour shows that the Applicant, at least, did
not believe that she had resigned before going on personal leave. I have taken this into account.
[123] I do not agree that the Applicant was engaged in any petty cash fraud. When the
Applicant was a new employee, the petty cash process was firmly entrenched in the
organisation. The process had the approval of the Purchasing Officer, the General Manager and
the parent company’s finance team. It would be highly unusual and irregular for a brand new
employee to suggest to senior management that they were doing something wrong in relation
to the petty cash process, thereby questioning their integrity. Such a move would certainly be
career-limiting. Further, the explanations given to the Applicant in relation to the $300 limit are
rational. The timekeeping system clearly didn’t work effectively and I am satisfied that there
would have always been individual problems with employees’ pay. The evidence in relation to
the Respondent’s line of credit is unsubstantiated. I have taken these issues into account.
[124] I am surprised by the lack of evidence from the Respondent in relation to the Applicant’s
attendance at work. The Applicant was one of only 5 admin employees. She is not a builder, a
sparky or a plumber who would have no need to log onto a computer or use a phone every day.
Quite the opposite. The Applicant would have needed to log onto her computer at the start of
every day – even at 4am when she would start the pay run when working from home. Yet the
Respondent submitted no evidence of the Applicant’s daily computer or phone usage. I have
taken this into account.
[2024] FWC 332
24
[125] I am convinced that all senior managers knew how the petty cash system worked. The
Applicant’s undisputed evidence is that the petty cash system was even used by the builder to
purchase goods to be installed at Mr Palmer’s private residence – which is not located inside
the boundaries of the Resort. I have taken this into account.
[126] I have taken into account that the Applicant simply reconciled the petty cash and ensured
that the receipts aligned with the purchases.
[127] I also accept that the Applicant was allowed to work from home. It would not be possible
for the Applicant to work from home if she did not have access to the Respondent’s files and
computer systems when working from home. I do not accept the argument that the Applicant
has breached her contract by accessing the Respondent’s files from her home. Nor do I accept
the argument that the Applicant is not permitted to use this information to support her
application. Such a proposition would be a denial of procedural fairness. It would be the same
as saying to an applicant who has submitted a bullying application that they cannot rely on the
conduct of the bully whilst at work in proving that they were bullied at work. I have taken these
issues into account.
[128] I note that the Australian Concise Oxford Dictionary defines an emergency to mean:-
“a sudden state of danger, conflict, etc, requiring immediate action”. I do not accept that a
security issue of the nature described by the Respondent can be described an ‘emergency’. I
have taken this into account.
[129] For the reasons identified above, I find that the Respondent did not have a valid reason
to terminate the Applicant.
Section 387(b) - Notified of the Reason
[130] It is not in dispute that the Applicant was not notified of her termination until 24 August
2023 when she received an email from Mr Wood. The Applicant was denied access to the site
from 8 August 2023. I have taken this into account.
Section 387(c) - Opportunity to Respond
[131] The Applicant was not given an opportunity to respond to the allegations. The Applicant
was denied access to the workplace from 8 August 2023. If asked, the Applicant could have
advised the Respondent that the finance department of Mineralogy condoned the petty cash
process. The Applicant could have also suggested that the Respondent check her phone and
computer records to ascertain whether she was actually working on the days that the Tanda
system had identified her absence. Relevantly, a Full Bench of the former Australian Industrial
Relations Commission held in Crozier v Palazzo Corporation Pty Limited (Crozier)29 (when
considering a termination under the former Workplace Relations Act 1996):-
“[75] Section 170CG(3)(c) provides that the Commission must have regard to "whether
the employee was given an opportunity to respond to any reason related to the capacity
or conduct of the employee". For the reasons we have set out in relation to s.70CG(3)(b)
we think that the "opportunity to respond" referred to in s.170CG(3)(c) is a reference to
[2024] FWC 332
25
any such opportunity which is provided before a decision is taken to terminate the
employee's employment.”
I have taken this into account.
Section 387(d) - Any refusal of a support person
[132] The Respondent did not conduct any meetings with the Applicant, so this matter is not
relevant.
Section 387(e) - Unsatisfactory performance
[133] The Applicant was not dismissed for unsatisfactory performance.
Section 387(f) - Size of Employer
[134] It is not in dispute that the Respondent and its related entities are a large and well-
resourced organisation. I have taken this into account.
Section 387(g) - Dedicated HR specialists
[135] The Respondent terminated its ‘on-site’ HR specialist with its other employees. The
Respondent’s in-house lawyer conducted the Commission proceedings. I have taken this into
account.
Section 387(h) - Any other matter
[136] The Respondent did not call as witnesses the former Purchasing Officer, Mr Carr, or the
former General Manager, Mr McDonald. Both of these employees were terminated in early
August. However, the Respondent did not call an ongoing employee of the Respondent’s parent
company who worked very closely with the Applicant. Ms Liu is still employed in the finance
department of Mineralogy. The Applicant submitted that I should draw a Jones v Dunkel
inference on the basis that she was not called as a witness. The Oxford Australian Law
Dictionary defines a Jones v Dunkel inference to mean:-
“A Jones v Dunkel inference is an inference drawn about a deficiency of evidence led by
one side in a case in court, named after Jones v Dunkel & Anor (1959) 101 CLR 298.
The Rule in Jones v Dunkel is ‘a principle of the law of evidence whereby a particular
form of reasoning is authorised’: Manly Council v Byrne & Anor [2004] NSWCA 123;
the reasoning is that if a prima facie case has been established…, and the other party
offers no explanation or contradiction of facts from which an inference may be drawn,
then the fact that the party might have proved the contrary had the party chosen to give
evidence may properly be taken into account as a circumstance in favour of drawing the
inference; it increases the weight of the proof brought by one side and reduces the weight
of the incomplete evidence brought by the other…”
[137] The Respondent submitted that no Jones v Dunkel inference can be drawn in this matter
and that the reason that Ms Liu was not called was because Ms Liu would feel uncomfortable
[2024] FWC 332
26
about giving evidence. The Respondent submitted on this basis that it was not appropriate to
call Ms Liu. Whilst it would be easy to draw a Jones v Dunkel inference on the non-attendance
of Ms Liu, I am satisfied that there is no need. The unchallenged evidence of the Applicant,
whom I find to be a truthful and credible witness, was that Mineralogy’s finance department
knew of, and approved of, the petty cash system being used by the Respondent. I also note that
the Respondent has not called either the CFO of Mineralogy or the Respondent’s auditors to
refute the Applicant’s claim. I have taken this into account.
[138] I do not agree that the Applicant had an implied duty or obligation to demand a unilateral
change to the petty cash system. The Applicant was a new employee who followed the
instructions of her superiors. I do not accept that the Applicant failed to properly record or
receipt the petty cash transactions. I have taken this into account.
[139] Regarding the unchallenged evidence of the Applicant, I note that in the Full Bench
decision of INPEX Australia Pty Ltd v The Australian Workers’ Union,30 it was stated that:-
“[29] The Commission is not a court. It is not bound by the rules of evidence.6 It is
required to perform its functions and exercise its powers in a manner that is quick,
informal and avoids unnecessary technicalities.7 But when the Commission makes a
finding of fact, it must proceed by reference to rationally probative material. 8 That
material may include, inter alia, evidence or, in an appropriate case, submissions. For
example, it may be appropriate for a finding of fact to be made on the basis of an
unchallenged submission made by one party, particularly when the other party is
legally represented.”
(My emphasis)
[140] Further, a Full Court of the Federal Court of Australia stated in Ashby v Slipper31 that:-
“The second aspect, critical to this appeal, relates to the weight or cogency of the
evidence: that is, as a general proposition, evidence, which is not inherently incredible
and which is unchallenged, ought to be accepted: Precision Plastics Pty Limited v
Demir [1975] HCA 27; (1975) 132 CLR 362 at 370-371 (per Gibbs J, Stephen J
agreeing, Murphy J generally agreeing). The evidence may of course be rejected if it is
contradicted by facts otherwise established by the evidence or the particular
circumstances point to its rejection.”
(My emphasis)
[141] I accept the unchallenged evidence of the Applicant.
Conclusion
[142] I have previously found that the Respondent did not have a valid reason to terminate the
Applicant.
[2024] FWC 332
27
[143] If I am wrong and the Respondent did have a valid reason to terminate the Applicant,
then I find, following the obiter in Crozier, that the Applicant certainly did not receive her
statutory entitlement to procedural fairness.
[144] Following the obiter in Byrne and for the reasons stated above, I find that the Applicant’s
termination was harsh, unjust and unreasonable. The Applicant thought that she had a job for
the remainder of her career, until she was “locked out” of her workplace for no apparent reason.
By not conducting a proper investigation, the Respondent denied the Applicant her two basic
statutory rights of procedural fairness contained in the FW Act. The Applicant was not given a
“fair go”.
[145] The Applicant has been unfairly dismissed.
Remedy
[146] Having found that the Applicant has been unfairly dismissed, I now turn to the issue of
an appropriate remedy.
[147] The relevant provisions of the Act in relation to a remedy for an unfair dismissal are:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the
payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal
(see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under
section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate;
and
(b) the FWC considers an order for payment of compensation is appropriate
in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
“391 Remedy—reinstatement etc.
Reinstatement
[2024] FWC 332
28
(1) An order for a person’s reinstatement must be an order that the person’s
employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was
employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less
favourable than those on which the person was employed immediately before
the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the
dismissal is no longer a position with the person’s employer at the time of the
dismissal; and
(b) that position, or an equivalent position, is a position with an associated
entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed
immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less
favourable than those on which the person was employed immediately before
the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to
do so, the FWC may also make any order that the FWC considers appropriate to
maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if
subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to
do so, the FWC may also make any order that the FWC considers appropriate to cause
the employer to pay to the person an amount for the remuneration lost, or likely to have
been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the
FWC must take into account:
[2024] FWC 332
29
(a) the amount of any remuneration earned by the person from employment
or other work during the period between the dismissal and the making of the
order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the
person during the period between the making of the order for reinstatement and
the actual reinstatement.”
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the
person’s employer at the time of the dismissal pay compensation to the person in lieu of
reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the
FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have
been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the
person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment
or other work during the period between the dismissal and the making of the
order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person
during the period between the making of the order for compensation and the
actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s
decision to dismiss the person, the FWC must reduce the amount it would otherwise
order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
[2024] FWC 332
30
(4) The amount ordered by the FWC to be paid to a person under subsection (1)
must not include a component by way of compensation for shock, distress or
humiliation, or other analogous hurt, caused to the person by the manner of the person’s
dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1)
must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the
dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during
the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so
employed during any part of that period—the amount of remuneration taken to
have been received by the employee for the period of leave in accordance with
the regulations.”
[148] The Applicant seeks compensation for her termination. I am satisfied that, whilst
reinstatement is the primary remedy under the Act, it would be very difficult to re-establish the
necessary trust and confidence to re-create an employment relationship. I am satisfied and find
that the payment of compensation is the appropriate remedy in this circumstance.
[149] The Applicant has submitted that an appropriate level of compensation would be 18
weeks. The Respondent submitted that a remedy of 6-10 weeks would be more appropriate. I
have taken these submissions into account.
[150] Section 392(2) of the Act identifies criteria that the Commission must taken into account
in determining the appropriate level of compensation to be awarded to the Applicant.
Section 392(2)(a) – effect of order on employer’s viability
[151] I am satisfied that my order will not have an adverse effect on the viability of the
Respondent. I have taken this into account.
[2024] FWC 332
31
Section 392(2)(b) – length of service
[152] It is not in dispute that the Applicant was employed from 13 July 2022 to 8 August 2023,
being just over 1 year. I have taken this into account.
Section 392(2)(c) – remuneration received if not dismissed
[153] The Applicant’s desire was to work for another 5 years for the Respondent after the
conclusion of the refurbishment project, as the Resort’s Accountant. The Applicant advised that
she had been a resort accountant previously and had enjoyed that work. I have taken this into
account.
[154] However, the Applicant was clearly frustrated and under stress in early August 2023.
The Applicant attended her doctor who provided her with a medical certificate. I’m not
confident that the stresses associated with the Applicant’s role would have sufficiently abated
to allow her to continue her career with the Respondent for the entirety of the Project. As a
result, I am satisfied that the Applicant would have intended to remain employed until the
Christmas/New Year period before giving notice and resigning. I believe her resignation would
have taken effect mid-January 2024, some 23 weeks after she was denied entry to her
workplace. I have taken this into account.
Section 392(2)(d) – effort to mitigate loss
[155] I have taken into account that the Applicant has been unsuccessful in finding work since
her termination. I am satisfied the Applicant has attempted to mitigate her loss.
Section 392(2)(e) – amount of remuneration received by the Applicant
[156] The Applicant has not received any remuneration since her termination.
Section 392(2)(f) – amount likely to be earned
[157] The Applicant has been unsuccessful in obtaining alternative employment on the basis
of a lack of opportunities for a person with her qualifications and experience.
Section 392(2)(g) – any other matter
[158] I am also required to have regard for the criteria known as the ‘Sprigg formula’ which
emanates from the Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket.32
This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram
and District Retirement Villages.33
[159] The approach in Sprigg is as follows:
Step 1: Estimate the remuneration the employee would have received, or have been
likely to have received, if the employer had not terminated the employment
(remuneration lost).
[2024] FWC 332
32
Step 2: Deduct monies earned since termination. Workers’ compensation payments are
deducted but not social security payments. The failure of an applicant to mitigate his or
her loss may lead to a reduction in the amount of compensation ordered.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual
amount he or she would have received if they had continued in their employment.
[160] In Hanson Construction Materials v Pericich,34 a Full Bench of the Commission held
that:
“[39]...Sprigg is a useful servant, but is not to be applied in a rigid determinative
manner. In deciding the amount of a compensation order the Act directs that the
Commission ‘must take into account all of the circumstances of the case’ including the
particular matters set out at s.392(2)(a)to(g).”
[161] I have applied a contingency of 30% to the amount I have determined. I have taken this
into account.
Conclusion
[162] Taking into account all of the matters raised above, I hereby order that the Applicant be
paid 16 weeks’ pay plus superannuation.
[163] I so Order.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
PR771074
1 Witness Statement of Jennifer Roberts dated 31 October 2023 at [144].
2 Ibid at [161].
3 Ibid at [162]; Annexure JR-10.
4 Sydney Trains v Hilder [2020] FWCFB 1373 at [26].
5 Witness Statement of Jennifer Roberts dated 31 October 2023 at [59]-[64] and [180].
6 Ibid at [43].
7 Ibid at [209].
8 Appeal by Jetstar Airways Pty Limited [2013] FWCFB 9075 at [68].
9 Appeal by B, C and D [2013] FWCFB 6191 at [58].
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb1373.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb9075.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb6191.htm
[2024] FWC 332
33
10 Fair Work Act 2009 (Cth) s.390(3).
11 Boston Deep Sea Fishing and Ice Company v Ansell (1888) 39 Ch D 339; Robb v Green [1895] 2 QB 315; Blyth Chemicals
Ltd v Bushnell (1933) 49 CLR 66.
12 Wiburd v Grandbridge Limited [2018] FWC 1900.
13 Matthews v Kuwait Bechtel Corporation [1959] 2 QB 57 at [66].
14 Colour Control Centre v Ty (1996) 39 AILR 5-058.
15 Concut Pty Ltd v Worrell (2000) 75 ALJR 312 at [17].
16 (1995) 182 CLR 544 at 557-558.
17 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at pp. 373, 377‒378; Lane v Arrowcrest (1990) 27 FCR
427, 456; cited with approval in Byrne v Australian Airlines Ltd [1995] HCA 24 (11 October 1995) at paras 131, 136
(McHugh and Gummow JJ), [(1995) 185 CLR 410 at pp. 467, 468].
18 Witness Statement of Jennifer Roberts dated 31 October 2023 at [38].
19 Sybron Corp v Rochem Ltd [1984] Ch112; [1983] 2 All ER 707.
20 [2016] FWC 5141.
21 [2012] FWA 6918.
22 Reply Witness Statement of Jennifer Roberts at [12].
23 (1995) 185 CLR 410.
24 (1998) 84 IR 1.
25 [2000] AIRC 1019.
26 (1995) 62 IR 371.
27 PR4471.
28 (1998) 84 FCR 483.
29 Print S5897.
30 [2021] FWCFB 1038.
31 [2014] FCAFC 15.
32 (1998) 88 IR 21.
33 [2012] FWCFB 431.
34 [2018] FWCFB 5960.
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc1900.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc5141.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2012fwa6918.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb1038.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2012fwcfb431.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb5960.htm
