1
Fair Work Act 2009
s.394—Unfair dismissal
Dennis Osia
v
BOC Limited
(U2024/1084)
COMMISSIONER CRAWFORD SYDNEY, 11 JUNE 2024
Application for relief from unfair dismissal – three valid reasons – procedural fairness
afforded - dismissal not unfair – application dismissed.
Background
[1] Dennis Osia (Mr Osia) commenced full-time employment with BOC Limited (BOC)
on 16 January 2023 as a Lead Auditor. BOC is a member of the Linde Group which supplies
compressed and bulk gases, chemicals and equipment in Australia and around the world. Elgas
Ltd is also a member of the Linde Group. Mr Osia’s role required him to conduct or oversee
internal audits for both BOC and Elgas Ltd.
[2] Mr Osia was summarily dismissed on 19 January 2024 for serious misconduct.
[3] Mr Osia filed an unfair dismissal application with the Fair Work Commission
(Commission) on 1 February 2024. BOC filed an employer response form on 8 March 2024.
No jurisdictional objections were raised by BOC.
[4] Mr Osia’s application was not resolved during conciliation. At a mention proceeding on
1 March 2024, I decided to grant permission for BOC to be represented on the basis that this
would enable the matter to be dealt with more efficiently. I also determined to conduct a
determinative conference rather than a hearing, given Mr Osia intended to represent himself
and was not familiar with the Commission’s processes. Directions were issued for the filing of
material and the application was listed for determinative conference via video on 15 May 2024.
[5] I issued a production order directed at Mr Osia in response to an application by BOC on
8 May 2024. Mr Osia produced documents in response to this order on 9 May 2024.
[6] Mr Osia represented himself at the determinative conference on 15 May 2024. BOC was
represented by Rohan Millar of counsel. Mr Millar was instructed by Jonathan Nguyen and
Nick Zavattiero from HWL Ebsworth Lawyers.
[2024] FWC 1506
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 1506
2
[7] Mr Osia was cross-examined for several hours during the determinative conference on
15 May 2024. Given Mr Osia was understandably fatigued from that process, and because it
was clear we would not finish closing submissions by the end of the day, I decided to adjourn
after Mr Osia’s evidence concluded and to list a further determinative conference for 3 June
2024.
[8] Mr Osia continued representing himself at the second determinative conference on 3
June 2024 and Mr Millar continued representing BOC.
[9] Mr Osia requested the assistance of a Tagalog interpreter during the determinative
conferences, and this was arranged by the Commission.
Material relied upon
Mr Osia
[10] Mr Osia relied on the following evidence and submissions in support of his unfair
dismissal application:
• Form F2 Unfair dismissal application. Given the application contains some evidence
from Mr Osia about his employment and dismissal, I marked the application Exhibit
A1.
• A letter from Chris Beston (Head of Safety, Health Environment and Quality (SHEQ)
– Region South Pacific) to Mr Osia dated 11 January 2024. The letter states Mr Osia
was suspended on full pay effective 11 January 2024 and outlined the following seven
allegations against Mr Osia:
i. Mr Osia falsely claimed jury service leave for the days of 24 to 27
October 2023.
ii. Mr Osia misused carer’s leave for absences on 14 to 17 November 2023.
iii. Mr Osia had not complied with his manager’s expectations concerning
the arrangement and conducting of audits on various occasions from June
2023 until early January 2024.
iv. Mr Osia behaved inappropriately towards colleagues on various
occasions from June 2023 to early January 2024.
v. Mr Osia failed to comply with BOC’s travel policy for a trip to Perth on
11 to 13 November 2023 and for a trip to New Zealand from 5 to 13
December 2023.
vi. Mr Osia failed to comply with directions and requests during a
disciplinary process in December 2023 and January 2024.
[2024] FWC 1506
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vii. Mr Osia’s conduct in relation to allegations 1, 2, 5 and 6 demonstrates a
pattern of behaviour of misleading and dishonest conduct which has
undermined its trust and confidence towards Mr Osia.
The letter states the allegations had been discussed with Mr Osia on 11 January 2024
and invited Mr Osia to attend a further meeting on 17 January 2024, or to respond in
writing. The letter informed Mr Osia he could have a support person at the meeting.
I marked the allegations letter Exhibit A2.
• A copy of Mr Osia’s termination letter dated 19 January 2024. The letter states BOC
had concluded on the balance of probabilities that Mr Osia had committed the alleged
serious misconduct and that he was being summarily dismissed. I marked the
termination letter Exhibit A3.
• A letter from Mr Beston to Mr Osia dated 19 January 2024. The letter had a draft deed
of release attached. Mr Beston was providing an offer for Mr Osia to consider in
relation to his dismissal. I marked the letter and deed Exhibit A4.
• A statement and submission filed by Mr Osia on 4 April 2024. I marked this document
Exhibit A5.
• A bundle of documents produced by Mr Osia in response to a production order I issued
on 8 May 2024. The documents relate to Mr Osia’s trip to Queensland in October 2023
in response to a jury service summons, Mr Osia’s earnings since his dismissal, and Mr
Osia’s attempts to mitigate his loss. I marked the bundle of documents Exhibit A6.
[11] Mr Osia answered some questions from me under an affirmation and was cross-
examined on his evidence during the determinative conference on 15 May 2024.
[12] Mr Osia made oral closing submissions at the end of the determinative conference on 3
June 2024.
BOC
[13] BOC relied on the following evidence in opposition to Mr Osia’s unfair dismissal
application:
• Witness statement from Samantha Ritter (HR Manager BOC) dated 3 May 2024. Ms
Ritter’s statement has the following documents attached:
- SR 1: A copy of the allegations letter sent by Mr Beston to Mr Osia on
11 January 2024.
- SR 2: A copy of emails exchanged between Mr Beston and Mr Osia on
18 December 2023 regarding a disciplinary meeting Mr Beston was
attempting to arrange with Mr Osia.
[2024] FWC 1506
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- SR 3: A copy of emails exchanged between Ms Ritter, Mr Beston and
Mr Osia on 18 and 19 December 2023 regarding the disciplinary meeting
Ms Ritter and Mr Beston were attempting to arrange with Mr Osia. Mr
Osia declined to attend the scheduled meeting.
- SR 4: A copy of a letter sent by Ms Ritter via email to Mr Osia on 21
December 2023. The letter indicates Mr Osia cannot ignore a direction
to attend a disciplinary meeting and indicated a further meeting would be
convened in early 2024.
- SR 5: A copy of an email Mr Osia sent Ms Ritter on 21 December 2023
after receiving her letter. Mr Osia refers to complaints he has raised
against BOC employees.
- SR 6: A copy of emails exchanged between Ms Ritter and Mr Osia on 2
January 2024. Ms Ritter was attempting to arrange a disciplinary meeting
for 8 January 2024.
- SR 7: A copy of emails relating to Mr Osia’s attempts to arrange for Yuan
Mei Woo (Linde’s Head of Human Resources – Asia Pacific) to be his
support person. The request was declined.
- SR 8: A copy of emails exchanged between Ms Ritter and Mr Osia on 5
to 8 January 2024. Ms Ritter is attempting to lock in the disciplinary
meeting and Mr Osia is referring to his separate complaints.
- SR 9: A copy of an email from Ms Ritter to Mr Osia dated 8 January
2024 which confirms the disciplinary meeting will be held on 11 January
2024.
- SR 10: A copy of an email from Lillian Tsai to Ms Ritter dated 8 January
2024 regarding Mr Osia’s request for Ms Tsai to be his support person.
Ms Tsai is based in Taiwan.
- SR 11: A copy of emails between Mr Osia and Sujit Chatterjee (Linde
Lead Assessor, Global SHEQ) dated 19 and 20 December 2023. Mr Osia
requests that Mr Chatterjee act as his support person. Mr Chatterjee is
based in India.
- SR 12: A copy of emails between Ms Ritter and Keith Pace (Linde
Executive Director – SHEW Complaint & Assessment) on 8 and 9
January 2024. The emails concern Mr Osia’s request for Mr Pace to be
his support person. Mr Pace is based in America.
- SR 13: A copy of emails between Ms Ritter and Dave Copeland (Linde
Associate Environment Director Global SHEQ) which confirm Mr
Copeland agreed to be a support person for Mr Osia at the meeting on 11
January 2024. Mr Copeland is based in New York.
[2024] FWC 1506
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- SR 14: A copy of Ms Ritter’s notes from a disciplinary meeting held with
Mr Osia on 11 January 2024.
- SR 15: A copy of a letter from Mr Beston to Mr Osia dated 11 January
2024 which confirms Mr Osia’s suspension on full pay.
- SR 16: A copy of Ms Ritter’s notes from a meeting held with Mr Osia on
17 January 2024.
I marked Ms Ritter’s statement, and its attachments, Exhibit R1. Ms Ritter was cross-
examined by Mr Osia during the determinative conference on 3 June 2024.
• A copy of an email sent by Mr Osia to the Commission on 1 May 2024 regarding
documents that had been sought by BOC. I marked the email Exhibit R2.
• A copy of emails sent by Mr Osia to Linde’s Integrity Line from 21 to 24 August 2023.
I marked the emails Exhibit R3.
• A copy of notes made regarding Mr Osia’s complaint to the Linde Integrity Line on
20 August 2023. I marked the notes Exhibit R4.
• Witness statement from Mr Beston dated 3 May 2024. The statement had the following
documents attached:
- CB 1: A copy of an email Mr Osia sent to a large group of employees on
23 January 2023. The email contains what is alleged to be inappropriate
content.
- CB 2: A copy of an email from Mr Beston to Mr Osia on 30 January 2023
where Mr Beston offers to meet with Mr Osia to assist with settling into
his employment.
- CB 3: A copy of an email sent by Mr Osia to a large group of employees
on 13 March 2023. The email contains what is alleged to be inappropriate
content.
- CB 4: A copy of an email sent by Mr Osia to a large group of employees
on 11 April 2023. The email contains what is alleged to be inappropriate
content.
- CB 5: A meeting invite sent by Mr Beston to Mr Osia concerning a
meeting with Mr Osia on 9 August 2023 to discuss Mr Osia’s
performance.
- CB 6: Notes made by Mr Beston about the meeting with Mr Osia on 9
August 2023.
[2024] FWC 1506
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- CB 7: A meeting invite sent by Mr Beston to Mr Osia concerning a
meeting with Mr Osia on 16 August 2023 to follow up on issues raised
at their earlier meeting regarding Mr Osia’s performance.
- CB 8: Notes made by Mr Beston about the meeting with Mr Osia on 16
August 2023.
- CB 9: A copy of an email Mr Osia sent Mr Chatterjee on 18 August 2023
which indicates an upcoming Business Level Assessment would be
handled by Mr Beston. Mr Beston says he had specifically told Mr Osia
this was his responsibility during their meeting on 16 August 2023.
- CB 10: A copy of a meeting invite Mr Beston sent Mr Osia for a further
meeting regarding his performance on 21 August 2023.
- CB 11: A copy of Mr Beston’s notes from his meeting with Mr Osia on
21 August 2023. Mr Beston alleges Mr Osia became agitated during the
meeting and made a highly offensive and inappropriate comment.
- CB 12: A copy of an email from Mr Beston to Mr Osia on 22 August
2023 where Mr Beston is following up on a meeting invite request.
- CB 13: A copy of an email from Mr Beston to Mr Osia dated 1 September
2023. The email requests that Mr Osia focus on issues raised at the earlier
meetings and particularly: audit arrangements, tasks, and audit protocols.
- CB 14: A copy of an email from Mr Osia to Mr Beston dated 20
September 2023. The email forwards a jury service summons from
Ipswich District Court for the period of 16 October 2023 to 27 October
2023. Although Mr Osia’s role with BOC was based in Sydney, his
residence on the electoral roll is in Queensland. The summons directed
Mr Osia to check each evening whether he was required in court the next
day during the period of 16 to 27 October 2023.
- CB 15: A copy of an automatic reply message sent from Mr Osia’s inbox
during the period he had been summoned for jury service. The email is
not entirely clear regarding Mr Osia’s work arrangements during this
period.
- CB 16: A copy of an email from Mr Beston sent to Mr Osia on 23 October
2023 and Mr Osia’s response. Mr Beston was querying whether Mr Osia
was on jury duty, annual leave or working from home. Mr Osia
responded: “I am working from home today but tomorrow I am in court
for at least an hour.”
- CB 17: A copy of a carer’s leave request form submitted by Mr Osia on
23 October 2023 to take leave from 14 to 17 November 2023 to care for
his wife. Mr Beston was notified of the request via an automatic email.
[2024] FWC 1506
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- CB 18: A copy of a jury service leave request form submitted by Mr Osia
on 24 October 2023 to cover the period of 24 to 27 October 2023. Mr
Beston was notified of the request via an automatic email.
- CB 19: An extract from Mr Osia’s work phone log which allegedly
indicates he drove to Queensland during work time without approval on
13 October 2023.
- CB 20: A copy of an email Mr Beston sent Mr Osia on 15 November
2023 requesting a copy of Mr Osia’s Statement of Attendance for Jury
Service and a certificate covering his carer’s leave. There are further
emails exchanged between Mr Beston and Mr Osia on these issues on 20
and 24 November 2023.
- CB 21: A copy of an email from Chris King (Regional Process Risk and
Audit Manager) to Mr Beston dated 5 December 2023. Mr King’s email
raises concerns about Mr Osia’s performance in relation to recent audits.
- CB 22: A copy of an email from Mr Beston to Will Ellis (NZ Operations
Manager) on 14 December 2023 and Mr Ellis’ response dated 15
December 2023. The emails concern Mr Osia’s performance in recent
audits.
- CB 23: A copy of Ms Ritter’s meeting notes for the meeting held with
Mr Osia on 11 January 2024. Mr Beston was at the meeting and confirms
the accuracy of the notes.
- CB 24: A copy of the allegations letter to Mr Osia dated 11 January 2024.
- CB 25: A copy of Ms Ritter’s notes for the meeting held with Mr Osia
on 17 January 2024. Mr Beston was at the meeting and confirms the
accuracy of the notes.
- CB 26: A copy of Mr Osia’s termination letter dated 19 January 2024.
I marked Mr Beston’s statement, and its attachments, Exhibit R5. Mr Beston was cross-
examined by Mr Osia during the determinative conference on 3 June 2024.
[14] In addition to its Form F3 employer response, BOC relied upon an outline of
submissions dated 3 May 2024. BOC also provided a document relating to Mr Osia’s earnings
after the dismissal as an aide to the Commission. Mr Millar made oral closing submissions at
the end of the determinative conference on 3 June 2024.
Statutory provisions – initial jurisdictional matters
When can the Commission order a remedy for unfair dismissal?
[2024] FWC 1506
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[15] Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) Mr Osia was protected from unfair dismissal at the time of being dismissed; and
(b) Mr Osia has been unfairly dismissed.
[16] Both limbs must be satisfied. I am therefore required to consider whether Mr Osia was
protected from unfair dismissal at the time of being dismissed and, if I am satisfied that Mr Osia
was so protected, whether Mr Osia has been unfairly dismissed.
When is a person protected from unfair dismissal?
[17] Section 382 of the FW Act provides that a person is protected from unfair dismissal if,
at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his
or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the
employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts
(if any) worked out in relation to the person in accordance with the
regulations, is less than the high income threshold.
When has a person been unfairly dismissed?
[18] 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;
(b) the dismissal was harsh, unjust or unreasonable;
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code
(SBFDC); and
(d) the dismissal was not a case of genuine redundancy.
Consideration – initial jurisdictional matters
[19] There was no dispute and I find that Mr Osia’s employment with BOC terminated at the
initiative of BOC effective 19 January 2024. I am therefore satisfied that Mr Osia has been
dismissed within the meaning of s.385(a) of the FW Act.
[2024] FWC 1506
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[20] Under s.396 of the FW Act, the Commission is obliged to decide the following matters
before considering the merits of the application:
(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 SBFDC;
(d) whether the dismissal was a case of genuine redundancy.
[21] It is not disputed and I find that Mr Osia’s application was filed within the relevant 21-
day period.
[22] It is not in dispute, and I find that Mr Osia was protected from unfair dismissal. Mr Osia
had completed the minimum employment period of six months. Mr Osia’s earnings were below
the high-income threshold of $167,500.00 (which is exclusive of compulsory superannuation
payments)1 at the time of dismissal.
[23] BOC’s employer response form states it had 1080 employees when Mr Osia was
dismissed. That means it is not a small business and the SBFDC is not relevant.
[24] BOC has not argued Mr Osia’s dismissal was a case of genuine redundancy and it clearly
was not.
[25] Given my findings in relation to these initial matters, I am required to determine whether
Mr Osia was unfairly dismissed.
Statutory provisions - unfair dismissal
[26] 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
[2024] FWC 1506
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(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.
[27] I am required to consider each of these factors, to the extent they are relevant to the
factual circumstances before me.2
Consideration – unfair dismissal
Was there a valid reason for the dismissal related to Mr Osia’s capacity or conduct?
[28] In order to be a valid reason, the reason for the dismissal should be “sound, defensible
or well founded”3 and should not be “capricious, fanciful, spiteful or prejudiced.”4 However,
the Commission will not stand in the shoes of the employer and determine what the Commission
would do if it was in the position of the employer.5
[29] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied
that the conduct occurred and justified termination.6 “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.”7
[30] BOC identified seven reasons for Mr Osia’s dismissal on 19 January 2024. I have
considered all the evidence and submissions in relation to each allegation and my findings for
each allegation are below.
1. Mr Osia falsely claimed jury service leave for the days of 24 to 27 October 2023.
[31] It is clear Mr Beston put Mr Osia on notice that he was querying Mr Osia’s working
arrangements during the week commencing 23 October 2023. Mr Beston sent an email to Mr
Osia at 12:51pm on Monday, 23 October 2023 which stated: “Can you please let me know if
you are in jury duty, on annual leave or working from home?” Mr Osia replied immediately at
12:51pm on Monday, 23 October 2023 and stated: “I am working from home today but
tomorrow I am in court for at least an hour.”8 I am not satisfied on the evidence there was a
sufficient basis for Mr Osia to indicate he would be in court for at least an hour on 24 October
2024.
[2024] FWC 1506
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[32] Mr Osia received a text message at 6:13pm on Tuesday, 24 October 2024 which stated:
“You are NOT required to attend Ipswich District Court on 25/10/2023 for jury service.”9 Later
that evening at 9:42pm on Tuesday, 24 October 2023, Mr Osia submitted a claim for jury
service leave for the period of 24 October 2023 to 27 October 2023.10 Mr Osia also received
text messages at 5:00pm on 25 October 2023 and at 5:43pm on 26 October 2023 that confirmed
Mr Osia was not required to attend Ipswich District Court on 26 and 27 October 2023.11 Given
the system being used by the court to advise potential jurors whether they needed to attend court
the next day, I consider Mr Osia must have received a text message during the evening on 23
October 2023 advising him of whether he needed to attend court on 24 October 2023. Mr Osia
did not provide the text message and indicated it had been destroyed. I find on the balance of
probabilities that Mr Osia received a text message on Monday, 23 October 2023 that confirmed
he did not need to attend Ipswich District Court on 24 October 2023.
[33] Given the evidence above, I find Mr Osia claimed jury service leave that he was not
entitled to on 24 to 27 October 2023. Mr Osia should have either worked from home on these
days, as he had done the previous week, or sought approval to take annual leave if he needed a
break from work. Mr Osia benefitted financially from claiming jury service leave because it
meant he did not need to use accrued annual leave entitlements for his absences on 24 to 27
October 2023.
[34] I find Mr Osia incorrectly submitted a claim for jury service leave on 24 October 2023
and personally benefitted from making the claim. I consider this conduct provides a valid reason
for his dismissal.
[35] For completeness, I do not consider there is sufficient evidence to conclude that Mr Osia
committed misconduct by driving from Sydney to Queensland on Friday, 13 October 2023. Mr
Osia being summoned to jury service in Queensland while working in Sydney was an unusual
occurrence. It is conceivable that Mr Osia could have satisfied his work obligations by being
contactable while driving and catching up on emails and other work later in the day. It does
appear Mr Osia worked reasonably autonomously, although I accept Mr Osia should have
advised Mr Beston of his movements. I would not have concluded Mr Osia’s conduct in
travelling to Queensland during working hours constituted a valid reason for dismissal when
considered in isolation.
2. Mr Osia misused carer’s leave for absences on 14 to 17 November 2023.
[36] The evidence establishes that Mr Osia applied on 23 October 2023 for carer’s leave to
assist his wife from 14 to 17 November 2023.12 It is also clear that Mr Osia’s wife never
attended a medical appointment around this time.13
[37] I do not consider the evidence establishes Mr Osia knew he was not entitled to claim
carer’s leave from 14 to 17 November 2023. Given the amount of notice Mr Osia provided,
there was ample opportunity for BOC to query the leave before it was taken. I also accept an
employee in Mr Osia’s position may not be fully aware of the specific circumstances that trigger
an entitlement to access carer’s leave.
[38] I do not consider Mr Osia’s actions in accessing carer’s leave on 14 to 17 November
2023 to assist his wife constituted a valid reason for dismissal.
[2024] FWC 1506
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3. Mr Osia had not complied with complied with his manager’s expectations
concerning the arrangement and conducting of audits on various occasions from
June 2023 until early January 2024.
[39] I accept BOC established that several issues had arisen concerning Mr Osia’s
performance in arranging and conducting audits during his employment. However, I consider
this to be a performance issue as opposed to misconduct. Although Mr Beston clearly took
several steps to try and assist Mr Osia in addressing the issues, Mr Osia was never issued with
a formal written warning letter or subjected to other disciplinary action. In those circumstances,
I do not consider the performance issues provided a valid reason for dismissal.
4. Mr Osia behaved inappropriately towards colleagues on various occasions from
June 2023 to early January 2024.
[40] I accept Mr Beston’s evidence that Mr Osia used extremely inappropriate and offensive
language during a meeting with him on 21 August 2023.14 Mr Osia did not provide a very
convincing denial during cross-examination.15 Mr Osia referred to the comment needing to be
taken in context. However, I agree with Mr Beston’s statement that this type of language is not
appropriate to be used at work in any context.
[41] I consider Mr Osia’s conduct during the meeting on 21 August 2023 provided a valid
reason for dismissal.
[42] I do not consider Mr Osia’s conduct in raising his voice during a meeting about a
Kemerton Audit on 10 November 2023 to be sufficiently serious to provide a valid reason for
dismissal when considered in isolation.
5. Mr Osia failed to comply with BOC’s travel policy for a trip to Perth on 11 to 13
November 2023 and for a trip to New Zealand from 5 to 13 December 2023.
[43] Mr Beston confirmed the allegations against Mr Osia relating to the New Zealand trip
were not substantiated.16
[44] I consider the evidence establishes Mr Osia personally benefitted from BOC paying for
a hire vehicle which Mr Osia used for personal travel with his son while holidaying in Perth
and that Mr Osia did not use BOC’s approved booking system to arrange his return flight.
However, I do not consider these matters are sufficiently serious to constitute a valid reason for
dismissal when considered in isolation.
6. Mr Osia failed to comply with directions and requests during a disciplinary
process in December 2023 and January 2024.
[45] I accept Mr Osia failed to comply with a lawful and reasonable request to attend a
disciplinary meeting with Mr Beston and Ms Ritter on 19 December 2023. Mr Beston indicated
the meeting could be done remotely given Mr Osia was in Queensland and provided an
opportunity for Mr Osia to arrange a support person. I do not consider it was acceptable for Mr
Osia to state in an email: “You do not need a Teams meeting here” to Ms Ritter on 18 December
[2024] FWC 1506
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2023.17 That decision was not Mr Osia’s to make. Mr Osia did not respond at all to Ms Ritter’s
clear direction to attend the meeting and did not answer her calls or emails on 19 December
2023.18 While Mr Osia was obviously entitled to strenuously defend any allegations against
him, he could not unilaterally decide not to attend a disciplinary meeting as directed.
[46] In determining whether a refusal to carry out a lawful and reasonable direction
constitutes a valid reason for termination, it is necessary to have regard to all the circumstances,
including the nature and degree of the employee’s conduct.19
[47] I consider Mr Osia’s failure to comply with a lawful and reasonable direction to attend
a disciplinary meeting on 19 December 2023 provided a valid reason for dismissal.
[48] I do not consider the situation is as clear in terms of the events in early 2024. The
evidence establishes Mr Osia was taking steps to try and organise a support person and he
ultimately attended meetings on 11, 17 and 19 January 2024. I do not find Mr Osia’s conduct
in relation to the disciplinary process in early 2024 provided a valid reason for dismissal.
7. Mr Osia’s conduct in relation to allegations 1, 2, 5 and 6 demonstrates a pattern
of behaviour of misleading and dishonest conduct which has undermined its trust
and confidence towards Mr Osia.
[49] I do not accept BOC has established on the evidence that Mr Osia demonstrated a pattern
of “misleading and dishonest conduct.” I do not consider Mr Osia’s conduct in incorrectly
claiming jury service leave in conjunction with using a BOC funded hire vehicle for personal
travel in Perth constitutes a pattern of “misleading and dishonest conduct.” I do not consider
Mr Osia’s inappropriate behaviour during a meeting on 21 August 2023 and his refusal to
comply with a lawful and reasonable direction to attend a disciplinary meeting on 19 December
2023 to be “misleading and dishonest conduct.”
[50] I do not consider this allegation is substantiated and do not consider it constitutes a valid
reason for dismissal.
Conclusion – valid reason
[51] I have found that there were three separate valid reasons for Mr Osia’s dismissal,
specifically:
• Mr Osia incorrectly claimed jury service leave on 24 October 2023.
• Mr Osia behaved inappropriately by making an extremely inappropriate and offensive
comment during a meeting with Mr Beston on 21 August 2023.
• Mr Osia failed to comply with a lawful and reasonable direction to attend a
disciplinary meeting on 19 December 2023.
Was Mr Osia notified of the reason for dismissal?
[2024] FWC 1506
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[52] Proper consideration of s.387(b) requires a finding to be made as to whether Mr Osia
“was notified of that reason”. Contextually, the reference to “that reason” is the valid reason
found to exist under s.387(a).20
[53] Notification of a valid reason for termination must be given to an employee protected
from unfair dismissal before the decision is made to terminate their employment,21 and in
explicit22 and plain and clear terms.23
[54] I find Mr Osia was notified of the valid reasons for dismissal via Mr Beston’s letter
dated 11 January 2024.24
Was Mr Osia given an opportunity to respond to the valid reason?
[55] An employee protected from unfair dismissal should be provided with an opportunity
to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity
to respond is to be provided before a decision is taken to terminate the employee’s
employment.25
[56] The opportunity to respond does not require formality and this factor is to be applied in
a common-sense way to ensure the employee is treated fairly.26 Where the employee is aware
of the precise nature of the employer’s concern about his or her conduct or performance and
has a full opportunity to respond to this concern, this is enough to satisfy the requirements.27
[57] I find Mr Osia was provided with an opportunity to respond to the valid reasons at the
meetings convened on 11, 17 and 19 January 2024.28
Did BOC unreasonably refuse to allow Mr Osia to have a support person present to
assist at discussions relating to the dismissal?
[58] I find BOC did not unreasonably refuse to allow Mr Osia to have a support person
present at discussions relating to the dismissal. Mr Copeland attended all three meetings as a
support person for Mr Osia.
Was Mr Osia warned about unsatisfactory performance before the dismissal?
[59] The valid reasons I have identified related to Mr Osia’s conduct and not his
performance. This factor is not relevant.
To what degree would the size of BOC’s enterprise be likely to impact on the procedures
followed in effecting the dismissal?
[60] BOC is a large business and it followed proper procedures in effecting the dismissal.
To what degree would the absence of dedicated human resource management specialists
or expertise in BOC’s enterprise be likely to impact on the procedures followed in
effecting the dismissal?
[2024] FWC 1506
15
[61] BOC has dedicated human resource management specialists, and it followed proper
procedures in effecting the dismissal.
What other matters are relevant?
[62] Section 387(h) requires the Commission to take into account any other matters that the
Commission considers relevant.
[63] The fact that Mr Osia was summarily dismissed can be considered as an “other relevant
matter” under s.387(h) of the FW Act and a conclusion that summary dismissal was
disproportionate to the gravity of the misconduct may support a conclusion the termination was
harsh.29
[64] However, I consider Mr Osia’s conduct in incorrectly claiming jury service leave and
his refusal to comply with a lawful and reasonable direction to attend a disciplinary meeting
justified his summary dismissal. Although I consider Mr Osia’s statement during the meeting
on 21 August 2023 was serious enough to justify summary dismissal, BOC did not dismiss him
until around five months after that comment was made.
[65] Mr Osia’s tenure with BOC was reasonably short and he has found alternative
employment. I do not consider there are any other relevant matters.
Is the Commission satisfied that the dismissal of Mr Osia was harsh, unjust or
unreasonable?
[66] I have made findings in relation to each matter specified in s.387. I must consider and
give due weight to each as a fundamental element in determining whether the termination was
harsh, unjust or unreasonable.30
[67] I have found that there were three separate valid reasons for Mr Osia’s dismissal and
that BOC followed a proper process in effecting the dismissal. I find that the dismissal was not
unjust or unreasonable.
[68] Mr Osia presented as a likeable person with strong religious beliefs. I do not consider
he was fully aware of the seriousness of some of the conduct he committed. I suspect this may
explain why Mr Beston did not pursue stronger disciplinary action following Mr Osia’s
inappropriate and offensive statement at the meeting on 21 August 2023. In any event, I find
the misconduct committed by Mr Osia was serious and I do not consider his dismissal was harsh
in all the circumstances.
[69] Having considered each of the matters specified in s.387 of the FW Act, I am not
satisfied that the dismissal of Mr Osia was harsh, unjust or unreasonable.
Conclusion
[70] I am not satisfied that Mr Osia was unfairly dismissed within the meaning of s.385 of
the FW Act.
[2024] FWC 1506
16
[71] The application is dismissed.
COMMISSIONER
Appearances:
Mr Osia representing himself.
Mr Millar of counsel, instructed by HWL Ebsworth Lawyers, on behalf of BOC.
Determinative conferences:
2024.
Via video.
15 May.
3 June.
Printed by authority of the Commonwealth Government Printer
PR775830
1 Section 332(2)(c) of the FW Act.
2 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].
3 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
4 Ibid.
5 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
6 Edwards v Justice Giudice [1999] FCA 1836, [7].
7 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
8 Exhibit R5, Attachment CB-16.
9 Exhibit A6, page 14.
10 Exhibit R5, Attachment CB-18.
11 Exhibit A6, page 14.
12 Exhibit R5, Attachment CB-17.
13 Exhibit R5, Attachment CB-20.
14 Exhibit R5 at [28] and [29].
15 Transcript at PN412, PN414 and PN425.
16 Exhibit R5 at [61](e).
MISSION COM THE SEAL WORK
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
http://www.fwa.gov.au/documents/Benchbookresources/unfairdismissals/Walton_v_Mermaid_Dry_Cleaners.pdf
[2024] FWC 1506
17
17 Exhibit R1, Attachment SR-3.
18 Exhibit R1 at [26].
19 Izdes v L.G. Bennett & Co Pty Ltd t/as Alba Industries [1995] IRCA 499.
20 Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
21 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
22 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
23 Ibid.
24 Exhibit A2, Exhibits R1 and R5.
25 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton
SDP, Cribb C, 11 May 2000), [75].
26 RMIT v Asher (2010) 194 IR 1, 14-15.
27 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
28 Exhibit R5 from [52] to [65].
29 Ibid at [55].
30 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon
Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice
[1999] FCA 1836, [6]–[7].
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb6429.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb533.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr915674.htm
