1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Christopher Gillis
v
A W Tod Stairs & Flooring Pty Ltd
(U2024/10197)
DEPUTY PRESIDENT CROSS SYDNEY, 20 DECEMBER 2024
Application for an unfair dismissal remedy – jurisdictional objection – small business fair
dismissal code – poor attendance – summary dismissal
[1] Mr Christopher Gillis (the Applicant) was employed by A W Tod Stairs & Flooring Pty
Ltd (the Respondent) from 27 June 2019 until 12 August 2024, as a Carpenter. The Applicant
was dismissed on 12 August 2024 after failing to attend work.
[2] On 31 August 2024, the Applicant filed an application, pursuant to s 394 of the Fair
Work Act 2009 (the Act) for an unfair dismissal remedy (the Application).
[3] In response, the Respondent raised the jurisdictional objection that the Respondent is a
small business employer, and the employer complied with the Small Business Fair Dismissal
Code (the Code).
[4] On 20 November 2024, I heard the above matter (the Hearing). The Applicant
represented himself and Mr Paul Conlon represented the Respondent.
The Legislation
[5] Section 385 of the Act defines when a dismissal is unfair. It provides as follows:
‘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
[2024] FWC 3205
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 3205
2
(d) the dismissal was not a case of genuine redundancy.’
[6] Section 396 of the Act requires the Commission to determine a number of preliminary
matters, before considering the merit of the Applicant’s claim. The section provides as follows:
‘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:
(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.’
[7] In relation to those preliminary matters, I find:
(1) The Applicant is a national system employee, and the Respondent is a national
system employer (ss 380, 13, 14);
(2) The Applicant was employed under the terms of the Timber and Allied Industries
Award (s 382(b)).
(3) The Applicant had been employed for the minimum employment period for a small
business of at least twelve months (ss 382(a), 383(b));
(4) The Applicant’s dismissal was not a case of genuine redundancy (s 385(d));
(5) The Applicant was summarily dismissed on 12 August 2024 (ss 385(a), 386); and
(6) The application for a remedy from unfair dismissal was lodged within the statutory
time limit of 21 days (s 394(2)(a)).
[8] The only outstanding preliminary issues are:
(a) Whether the Respondent’s business is a small business as defined by s 23 (ss 396(c),
388); and
(b) Whether the Respondent complied with the Code and consequently, the Applicant’s
claim for an unfair dismissal remedy was beyond the Commission’s jurisdiction.
[2024] FWC 3205
3
[9] I note that if, however, it is found that the Respondent had not complied with the Code,
then considerations going to whether the dismissal was ‘harsh, unreasonable or unjust’, within
the terms of s 387 of the Act, will arise.
The Evidence
(a) The Applicant
[10] The Applicant outlined a history of injuries from 10 April 2024, and noted that on 7
August 2024, he was asked to perform a duty in excess of the limitations advised to the
Respondent in a medical certificate. The Applicant stated that as a casual employee, he felt
pressured to perform this task or he could be at risk of losing his job.
[11] The Applicant stated as a result of this task, he injured his neck and was in significant
pain. From Saturday 10 August until Tuesday the 13 August he experienced a severe worsening
of his neck injury. Because of the acute pain the Applicant stated he was unable to attend work
and notified David Conlon by text message. Later that day, Paul Conlon replied “Do not come
back”. The Applicant sent another text to Mr Conlon indicating that he probably would not be
able to work on the Tuesday either as the acute neck pain was still present.
(b) The Respondent
[12] Mr Paul Conlon gave evidence for the Respondent. He noted:
(a) On 18 June 2020, the Applicant received his first written warning- poor performance,
which stated:
Poor Performance – First Written Warning
This letter is your first warning notice and it is a follow up to several verbal warning
already given to you due to your continual lateness most mornings and not turning up for
work at all.
There is no need to turn up for work tomorrow, as your working days have been reduced
to only Monday, Tuesday & Wednesday.
Should there be no improvement, I will have no alternative but to issue you a final written
warning.
(b) In 2020, the Applicant was not at work for 19 days (sick).
(c) In 2021, the Applicant was absent 29 days.
(d) In 2022, the Applicant was not at work for 10 sick days and 4 days no show.
(e) In 2023, the Applicant was not at work for 21 sick days and 2 days no show/slept in,
and late for work 21 mornings. On 22 February 2023, he was issued with a second warning as
follows:
[2024] FWC 3205
4
Poor Performance – Second Written Warning
This letter is your second warning notice and it is a follow up to several verbal warning
already given to you due to your continual lateness and your continuing attendance
problems.
Your uneven attendance is beginning to affect other parts of your job, making
improvement even more essential.
Should there be no improvement, I will have no alternative but to issue you a final written
warning.
(f) On 26 March 2023, the Applicant received a warning for poor handling of a forklift.
The following day he sent a text message joking about the warning and signing off “from ur
forklift speeding Chris”.
(g) From 1 January to 12 August 2024, the Applicant was not at work for 3 days sick leave,
23 days with a sore arm (tennis elbow), 19 days light duties, and 5 mornings late.
(h) On Monday, 12 August 2024, the Applicant was aware that the Respondent had
employed special contractors to work in the factory to help him and others catch up on projects
that were falling behind. He was instructed on Thursday and Friday to prepare materials and
tools which were only of a light nature and the Applicant was instructed to be there and just sit
on the chair and tell people what to do.
When Mr Conlon arrived at work about 10.00am the Applicant was not there, and nobody had
heard from him. Mr Conlon sent the message saying “don't bother coming back”. Later, the
Applicant sent Mr Conlon a message saying he was sorry he just slept in, and then again at
5:30pm, he messaged stating that he had a sore neck that started on the Saturday not due to
anything at work. Mr Conlon considered there was no point in talking to the Applicant any
further.
(i) In evidence were numerous example text messages of the kind received by the
Respondent from the Applicant throughout his employment. They disclose a deplorable attitude
to punctual work attendance and timely notification of absences. The Respondent would be
advised of non-attendance as late as 1.29pm, with excuses as trivial as “I bloody slept in this
morning” and “Just woke up Dave … Give me a sec and I lol be on my way” sent at 10.
02am.The Applicant’s oral evidence regarding his conduct was:1
And it lists the reasons, for example, in 2023 for you being late, 'No show, slept in', and
then late on, roughly, 26 occasions in a year. In your experience of working, somebody
being late so often or even not turning up for work is extraordinary conduct. Would you
agree or disagree? --- I would agree.
And it's not isolated to 2023. It occurred in 2024 and throughout your employment? ---
Yes.
Applicant’s Submission
[2024] FWC 3205
5
[13] The Applicant’s outline of submissions provided that he claimed his dismissal was harsh
because no reason for dismissal was given, he was not given an opportunity to respond to the
dismissal, and he was not given any performance warnings for approximately 18 months
leading up to the dismissal.
[14] The Applicant submitted the immediate cause for his dismissal appeared to be in relation
to being unable to work, when he received the text message stating “Do not come back” at
11.51am on 12 August 2024. This text was the result of the Applicant informing the Respondent
at 10.33am that he was unable to work due to the neck injury he claimed he sustained at work
on 7 August 2024.
[15] The Applicant submitted the neck injury sustained at work on 7 August was a direct
result of the Respondent disregarding medical advice that he should gradually increase lifting
capacity over a 6–8 week period.
[16] The Applicant submitted he did not receive any warning in 2024 that he would have to
improve his performance or he would be dismissed. In February 2023 he received a
performance warning but it was his understanding that those concerns had been resolved in
2023. Because he did not receive any warning in 2024, he was not given any time to improve
his performance or conduct.
[17] The Applicant also submitted that was not given a genuine opportunity to respond to the
dismissal and that his text message questioning the dismissal was ignored.
Respondent’s Submission
[18] The Respondent submitted it was a small business. It had 4 employees, and even when
separate unrelated companies were considered, there were only 12 employees.
[19] The Respondent submitted that the Applicant was aware of the need to be at work on
Monday 12 August 2024, to direct contractors who had been specially employed to help him.
As was not unusual for the Applicant, he failed to attend and failed to make any contact with
the Respondent.
Consideration
[20] I accept that the Respondent was a small business. Mr Conlon gave unchallenged
evidence of the names of employees, and the numbers employed at the relevant times.
[21] The Code deals with dismissals separately in respect to serious misconduct and poor
performance. The Code provides:
The Code
Summary Dismissal
[2024] FWC 3205
6
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. Serious misconduct includes theft, fraud, violence
and serious breaches of occupational health and safety procedures. For a dismissal to be
deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or
violence be reported to the police. Of course, the employer must have reasonable grounds
for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or
she is at risk of being dismissed. The reason must be a valid reason based on the
employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being
dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond
to the warning and give the employee a reasonable chance to rectify the problem, having
regard to the employee’s response. Rectifying the problem might involve the employer
providing additional training and ensuring the employee knows the employer’s job
expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the
employee can have another person present to assist. However, the other person cannot
be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the
Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including
evidence that a warning has been given (except in cases of summary dismissal). Evidence
may include a completed checklist, copies of written warning(s), a statement of
termination or signed witness statements.
[22] While the Applicant was summarily dismissed, it is apparent that, as the dismissal
related to performance and attendance, compliance with the Code should also be assessed
against the provisions under the heading “Other Dismissal” above.
[23] The Applicant’s oral evidence regarding 12 August 2024, was as follows:2
Is it untrue that you sent the message that you're going to be late, or untrue that you had
an appointment? --- I sent the message, but there was more to that message. There was,
'Sorry I'd slept it', and then, 'My neck is giving me some serious grief'. That was at 10.33,
by memory, 10.33. There should be a screenshot of that text message, and as far as the
not true part of that, the RMS - this RMS appointment is fabricated. There was never one
at all.
Stepping through, so you agree you slept in? --- Yes.
[2024] FWC 3205
7
It was an important day to be at work, was it not? --- Yes. It was an important day at
work. I woke up, and I couldn't move, and then I woke again. Like, I went to my normal
alarm. I woke again, and I looked at the time, and I messaged Dave, and I said, 'Mate,
I'm in some serious grief'.
So the first time you woke up, you couldn't move? --- Yeah.
But the second time you woke up, you could? --- No. Both times, I couldn't move. I should
have messaged him at - the only problem is Dave only gets to work at 8, and Paul gets to
work at about 9, and I saw the time, and it was - I get up super early to get to work, and
it was probably around about 5-ish that my first alarm went off, and I felt - I went back
to sleep thinking that I'd just message him at, like, 7 or 6.30 or something like that and
then - because no one would have been at the office at 5 and yeah. I - - -
But you didn't, and you didn't phone them until 10.30? --- I didn't text him until 10.30,
yes.
So for hours on what you agree is an important day, they didn't know where you were? -
-- Yes. Yes, I know. It's bad, but I couldn't get out of bed the whole weekend, the Saturday
and the Sunday.
You could message at 10.30? --- Yeah.
You could have messaged at 7.30? --- I should have, yes.
Could have and should have? --- Agreed, agreed.
Particularly in light of your history of absences? --- Yes.
[24] It is ludicrous to assert, as the Applicant does, that he was unable to message at 7.00am
on 12 August 2024, but was able to message later in the morning. It is abundantly clear that,
notwithstanding the importance of his attendance to direct contractors specifically engaged to
assist him, the Applicant just slept in, again. Even if he had a neck injury, which I accept Mr
Conlon had no knowledge of at the relevant time, the Applicant could still have made contact
with the Respondent.
[25] The Applicant’s written Submission included the following:
1. I did not receive any warning in 2024 that I would have to improve my performance
or I would be dismissed. In February 2023 I received a performance warning but it
was my understanding that these concerns had been resolved in 2023.
2. Because I did not receive any warning in 2024, I was not given any time to improve
my performance or conduct.
[26] The submission outlined in the above paragraph is fanciful. There could be no basis for
submitting that the February performance warning, which was the second for poor performance,
had been resolved because it was dated 22 February 2024, and thereafter the Applicant’s poor
[2024] FWC 3205
8
attendance record continued without necessary improvement. The Applicant was clearly aware
of the unacceptability of his conduct but chose not to improve to the requisite level.
[27] Mr Conlon, who presented as a responsive and honest witness, gave the following
evidence when questioned by the Commission:3
It might be put against you, well, you clearly provided two warnings regarding lateness?
--- Yes.
And in the second one you said, 'Should there be no improvement, I'll have no alternative
but to issue you with a final written warning'? --- Yes.
Now, you didn't issue a final written warning? --- Yes.
Why was that? --- Because we were short of office staff at the time and David wasn't on
the premises at that time. I had asked him had he heard from Chris. He said no. I asked
Jodie in the office did he know – you know, had he been recognised. Jodie is the one –
like, there's an accident book. If something did happen, he should have written in the
accident book. Other people do. You know, even if it's not something for Worker's Comp,
you know, let you know, like they've cut their finger here. Yeah. So no, purely lack of
time on my part.
Well, I'm not asking why on 12 August 2024, you didn't provide a final written warning
as opposed to simply summarily dismissing him? --- Yes.
What I'm saying to you is that, well, prior to that day, you hadn't issued a final written
warning? --- Yes, I should have. Yes.
And why was it not? --- Just timing. There were written warnings typed up for me to give
him, but whether I didn't see him or whatever, it was - yes, but, anyway, no. There wasn't
any given.
[28] The Full Bench in Pinawin v Domingo,4 considered the summary dismissal aspect of
the Code at length, and held:
[29] We believe that the approach and observations in these two decisions are correct.
There are two steps in the process of determining whether this aspect of the Small
Business Fair Dismissal Code is satisfied. First, there needs to be a consideration
whether, at the time of dismissal, the employer held a belief that the employee’s conduct
was sufficiently serious to justify immediate dismissal. Secondly it is necessary to
consider whether that belief was based on reasonable grounds. The second element
incorporates the concept that the employer has carried out a reasonable investigation
into the matter. It is not necessary to determine whether the employer was correct in the
belief that it held.
[30] Acting reasonably does not require a single course of action. Different employers
may approach the matter differently and form different conclusions, perhaps giving more
benefit of any doubt, but still be acting reasonably. The legislation requires a
[2024] FWC 3205
9
consideration of whether the particular employer, in determining its course of action in
relation to the employee at the time of dismissal, carried out a reasonable investigation,
and reached a reasonable conclusion in all the circumstances. Those circumstances
include the experience and resources of the small business employer concerned.
[29] The question I need to consider in this case is whether Mr Conlon believed on reasonable
grounds that the Applicant’s conduct was sufficiently serious to justify his summary dismissal.
Unlike previous non-attendance by the Applicant, the Applicant’s absence on 12 August 2024
was of significantly increased severity because the Respondent had specifically engaged
contractors to assist him in his duties. In that circumstance, the Applicant’s non-attendance and
lack of communication regarding his absence constituted wilful or deliberate behaviour by an
employee that is inconsistent with the continuation of the contract of employment.5
[30] The second matter to address is whether Mr Conlon had ‘reasonable grounds’ to believe
the Applicant’s conduct was sufficiently serious to justify his dismissal. The meaning of
‘reasonable grounds’ in the Code is that the grounds are ‘reasonable’ when viewed from the
standpoint of what a reasonable person would conclude as grounds which are credible, sensible,
logical or plausible.6
[31] It is entirely unremarkable that Mr Conlon concluded that he had reasonable grounds
for believing the Applicant’s conduct was such as to justify instant dismissal, due to the
significantly increased severity of the Applicant’s absence on 12 August 2024.
[32] From these circumstances, I am comfortably satisfied that Mr Conlon, and the
Respondent, had reasonable grounds to believe that the Applicant’s conduct was sufficiently
serious to justify his immediate dismissal, and there were reasonable grounds for the employer
holding that belief.
[33] I also consider that the Respondent complied with the provisions under the heading
“Other Dismissal” in the Code. The Applicant was provided with an opportunity to respond to
the two written warnings, and other verbal warnings provided, and was given a reasonable
chance to rectify the attendance problem. I also accept from the totality of the warnings
provided that the Applicant was aware that he risked being dismissed if there was no
improvement.
[34] While the Applicant focussed on receiving the email on 12 August 2024, without prior
discussion, simply stating “Do not come back”, the failure to provide an opportunity to respond
as a consideration arises under paragraphs (b) and (c) of s.387 of the Act, and not under the
Code.
[35] Similarly, while both written warnings referred to the possible issuing of a final written
warning, the Respondent was not bound to having to issue such final warning if circumstances
warranted dismissal.
[36] The Respondent complied with the Code in respect to the dismissal of the Applicant.
Accordingly, as the dismissal was consistent with the Code, the Applicant was not unfairly
dismissed for the purposes of s.385 of the Act, and the Commission has no jurisdiction
to deal with the Application.
[2024] FWC 3205
10
[37] It is unnecessary to make findings as to whether the Applicant’s dismissal was ‘harsh,
unreasonable or unjust’ for the purposes of s.387 of the Act.
[38] The Application must be dismissed. Orders to that effect will issue simultaneously with
this Decision.
DEPUTY PRESIDENT
Appearances:
Mr C Gillis, the Applicant.
Mr P Conlon, on behalf of the Respondent.
Hearing details:
20 November 2024.
10AM.
Sydney.
Printed by authority of the Commonwealth Government Printer
PR781451
1 Transcript PN 343 and 344.
2 Transcript PN 269 to 279.
3 Transcript PN 585 to 591.
4 (2012) 219 IR 128.
5 Fair Work Regulations 2009. Reg. 1.07(2)(a).
6 Construction, Forestry, Mining and Energy Union v HWE Mining Pty Limited [2011] FWA 8288.
OF THE WORK THE SEAS NOISSINNE
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwa8288.htm
