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Fair Work Act 2009
s.394—Unfair dismissal
Christopher Cassar
v
Kalimna Hotel Pty Ltd
(U2024/10739)
DEPUTY PRESIDENT COLMAN MELBOURNE, 30 OCTOBER 2024
Unfair dismissal application
[1] Christopher Cassar has made an application for an unfair dismissal remedy under s 394
of the Fair Work Act 2009 (Act). Mr Cassar was employed by Kalimna Hotel Pty Ltd (Kalimna)
as a head chef. On 2 September 2024, he sent a letter of resignation to Kalimna, stating that his
last day of work would be 2 October 2024. On 6 September 2024, Kalimna dismissed Mr Cassar
on one week’s notice after it concluded that he had not been performing his duties of head chef
during the notice period, and that he had committed misconduct by taking company property
from the kitchen and making threats against the company. Mr Cassar denies the allegations and
contends that his dismissal was unfair because there was no valid reason for it. He seeks
compensation.
[2] Kalimna objected to the application on several grounds. First, in its F3 response to the
unfair dismissal application, it suggested that it had not dismissed Mr Cassar but had merely
brought forward the notice period. By this it meant the period of notice of termination that had
been given by Mr Cassar. But only Mr Cassar could bring forward his own notice period. The
employment ended before the resignation became effective. It was terminated on the
employer’s initiative and was therefore a dismissal as defined in s 386 of the Act.
[3] Secondly, Kalimna submitted that Mr Cassar had not served the minimum employment
period (see s 382), which it said was one year because Kalimna was a small business employer.
Mr Cassar had commenced employment with Kalimna on 6 November 2023, around the time
that Kalimna took over the hotel business from the previous owner. He was dismissed less than
12 months later, on 6 September 2024. Kalimna said that it had not recognised Mr Cassar’s
service and that the purchase agreement did not provide for employees to be offered
employment with Kalimna. Nevertheless, it is clear that there was a transfer of employment
within the meaning of s 22(7)(b) of the Act, which means that Mr Cassar’s employment with
the previous owner, which was over one year, is deemed to count as service with Kalimna (see
s 22(5)). In this regard, Mr Cassar was a ‘transferring employee’ in relation to a ‘transfer of
business’. As to the transfer of business (see s 311), Kalimna bought the business and took over
the leasehold of the Kalimna Hotel from the previous owner. It had the beneficial use of some
of the assets that the previous owner had the beneficial use of and that related to transferring
[2024] FWC 3005
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 3005
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work. This means that there was a ‘connection’ between the first and second employers within
the meaning of s 311(3) of the Act. Further, I find that Mr Cassar was a ‘transferring employee’
because within 3 months of his termination by the first employer he became employed by
Kalimna performing substantially the same work that he performed for the old employer,
namely the work of a head chef. Mr Cassar satisfies the minimum employment period that is
required in order to bring an unfair dismissal application against Kalimna, regardless of whether
that period is six months or one year.
[4] Thirdly, Kalimna submitted that the dismissal was not unfair because the dismissal was
consistent with the Small Business Fair Dismissal Code (Code) (see s 388). A small business
is one that, at the time of the relevant employee’s dismissal, employed fewer than 15 employees,
inclusive of the applicant, ‘regular casuals’, and employees of any associated entities (see s 23).
Kalimna submitted that on 13 September 2024 it employed 4 full-time employees and 5 casuals
on a regular basis. It had one associated entity, which had only one employee, namely Shaun
Massie, a co-owner of Kalimna. The company acknowledged that it employed 6 other casuals
but contended that they were not regular casuals and submitted rosters from the 4 weeks prior
to Mr Cassar’s dismissal. From these documents I have concluded that 4 of these additional
casuals were regularly engaged as they worked several shifts in each of the four weeks.
However the other two casuals (Ms McAlpine and Ms Green) worked only on several occasions
and in my view were ad hoc, not regular casuals. This gives a total of 14 employees. Mr Cassar
said that he believed there were 19 employees at the time he was dismissed but I find this belief
to be unsubstantiated. I conclude therefore the Kalimna was a small business employer at the
relevant time.
[5] However, I do not consider that Kalimna complied with either of the Code’s two limbs.
The first relates to summary dismissal and states that it is fair for an employer to dismiss an
employee without notice or warning when the employer ‘believes on reasonable grounds that
the employee’s conduct is sufficiently serious to justify immediate dismissal’. This limb is not
applicable because the employer did not in fact dismiss Mr Cassar summarily, but on one
week’s notice. Kalimna submitted that it believed it was required to provide one week’s notice.
But nevertheless I find that the company did not believe that the conduct was sufficiently
serious to justify immediate dismissal. Further, I do not consider that any belief to this effect
was based on reasonable grounds. The company’s conclusion that Mr Cassar was not
performing his duties and that he had made a threat to damage the business was based on
accounts of other employees that were relayed to Mr Massie and Ms Kohler. I will return to this
further below. The allegation relating to the threat was in very general terms. It is not clear what
Mr Cassar was allegedly threatening to do. Kalimna also said, based on camera footage that
showed Mr Cassar taking things to his car, that Mr Cassar had taken company property. But it
is not clear precisely what property he is said to have taken. Mr Cassar denied all of the
allegations. He said that he had continued to do his job during the notice period, that he had not
made any threats to the company, and that the only property he had taken was his own, including
knives and a mandolin that he kept in the kitchen. In my view, in order to have reasonable
grounds for believing that summary dismissal was justified, Kalimna would have needed to
investigate the allegations further before rejecting his denials.
[6] The second limb of the Code states that in cases not involving summary dismissal, the
employer must, among other things, give the employee a reason why he or she is at risk of being
dismissed, and the reason must be a valid one based on the employee’s conduct or capacity to
[2024] FWC 3005
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do the job. There is no evidence that a warning of this particular type was provided to Mr Cassar.
Ms Kohler said that in the lead up to Mr Cassar’s resignation, she had spoken to him about the
company’s concerns in relation to long wait times and related matters and told him that he
needed to work on the way he ran the kitchen. She said that he did not acknowledge that there
was any problem with his performance and instead blamed other people and factors for the
delays. Ms Kohler said that she was on the path to dismissing him at that time when Mr Cassar
submitted his resignation. Kalimna put its concerns to Mr Cassar, but it did not tell him that his
employment was at risk. I conclude that the dismissal was not consistent with the Code. The
third jurisdictional objection is dismissed.
[7] The Commission must now proceed to consider the merits of the application and decide
whether that dismissal was harsh, unjust or unreasonable, taking account of the matters in s 387
of the Act. Kalimna said that there was a valid reason for dismissal related both to capacity and
to conduct (s 387(a)). As to performance, it said that following Mr Cassar’s resignation there
was tension in the kitchen and two staff members told the directors that Mr Cassar was refusing
to perform his duties, such as obtaining essential kitchen supplies and responding to floor staff,
on the basis that he was no longer the head chef. Mr Cassar said that he continued to do his job,
and that he had done as Ms Kohler instructed and had run things by ‘Shane’ who was going to
be the new head chef. Ms Kohler denied telling Mr Cassar to run things by Shane. I accept her
evidence about this. But contrary to her submission, this does not mean that Mr Cassar’s
evidence was not truthful. It could easily have been a misunderstanding, given that ‘Shane’ was
indeed going to be the new head chef. I find the allegation of poor performance during the
notice period to be unsubstantiated. As to valid reasons for dismissal related to conduct,
Kalimna pointed to the threat made to the company and the taking of company property, but I
find that these allegations have not been substantiated. A valid reason is one that is both a good
reason and a substantiated reason. I am not satisfied that the allegations of poor performance or
misconduct have been proved on the balance of probabilities. I concluded therefore that there
was no valid reason for the dismissal.
[8] Mr Cassar was notified of the reasons for dismissal (s 387(b)) and had an opportunity
to respond to them in his discussion with Mr Massie on 6 September 2024 (s 387(c). He was
not refused a support person (s 387(d)). Although Kalimna raised with him its concerns about
his performance, it did not warn him about his unsatisfactory performance, in the sense that it
did not convey to him that his employment was at risk if he did not improve his performance (s
387(e)). As to ss 387(f) and (g), I consider that the relatively small size of the employer’s
enterprise and the absence of human resources advisers had a negative impact on the process
followed in affecting the dismissal. Nevertheless, taking into account all of the circumstances,
I consider that the dismissal was harsh because there was no substantiated reason for it.
[9] The remedies that the Commission may order in respect of a dismissal that it has found
to be unfair are reinstatement or compensation. Reinstatement is not sought and would in any
event be inappropriate in this case. As to compensation, s 392 requires the Commission to take
into account certain matters, including the remuneration that the applicant would have received
if the dismissal had not occurred (s 392(2)(c)). In the present case, this would have been the
remuneration in respect of the period between the date when Mr Cassar’s employment ended,
Friday 13 September 2024, and the date when his employment would have ended anyway in
accordance with his resignation, Wednesday 2 October 2024. This is the compensable period.
[2024] FWC 3005
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[10] Payslips submitted by the company indicate that for the fortnight commencing on
Monday 9 September 2024 and ending on Sunday 22 September 2024 Mr Cassar was paid for
28 hours; Ms Kohler explained that this was a payment for 3 days work (in fact a little more
than this) made in respect of the remainder of the notice period ending on 13 September 2024.
There were 48 hours in this 76-hour fortnight that were not paid. After that period, Mr Cassar’s
employment would have continued for a further week and a half, from Monday 23 September
2024 to the resignation date of Wednesday 2 October 2024. In this period there were 6 working
days inclusive of Wednesday 2 October 2024, which Mr Cassar had said would be his last
‘working day’. Six working days is 45.6 hours (Mr Cassar did not work Mondays or Tuesdays).
This produces a total of 93.6 hours of pay that Mr Cassar did not receive because of the
dismissal. Applying the hourly rate of $45.55 stated in the payslips produces a subtotal of
$4263.48. This is Mr Cassar’s loss.
[11] In assessing compensation, the Commission is required by s 392(2)(e) of the Act to take
into account amounts earned by the person from employment or other work since the dismissal.
As directed by the Commission, Mr Cassar produced payslips from his new employment. These
show that in each of the two weeks from 16 to 29 September 2024, Mr Cassar earned $1,269.23
(a total of $2,538.46). In the week from 30 September 2024 to 6 October 2024, he earned
$1,269.23; but only part of this amount is referrable to the period ending on 2 October 2024. I
will attribute one third of it to that period, which is an amount of $423.08. This gives a total of
$2961.54. After deducting these earnings of Mr Cassar between 6 September and 2 October
2024 from the subtotal of $4263.48, the figure remaining is $1301.94. This is the appropriate
gross amount of compensation that Mr Cassar should be paid in respect of his unfair dismissal,
from which applicable taxation must be withheld. To this should be added a component in
respect of superannuation at 11.5%, which is $149.72. I will order these amounts to be paid to
Mr Cassar within 28 days.
[12] An order is issued separately in PR780752.
DEPUTY PRESIDENT
Appearances:
C. Cassar for himself
S. Massie and J. Kohler for Kalimna Hotel Pty Ltd
Hearing details:
2024
Melbourne (by Teams)
29 October
Printed by authority of the Commonwealth Government Printer
PR780750
WORK COMMISSION THE SEAL OF THE F
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr780752.pdf
