1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Neil Jon Lungay Colmenares
v
Caretodance Pty Ltd
(U2024/9293)
DEPUTY PRESIDENT SLEVIN SYDNEY, 24 DECEMBER 2024
Application for an unfair dismissal remedy – Applicant dismissed, dismissal not in
accordance with the Small Business Fair Dismissal Code, dismissal not for a valid reason,
procedurally unfair, and harsh. Reinstatement not appropriate. Compensation awarded.
Introduction
[1] Mr Neil Jon Lungay Colmenares has applied under section 394 of the Fair Work Act
2009 (the Act) for an unfair dismissal remedy. He was dismissed by CareToDance Pty Ltd
(CareToDance) on 24 July 2024. CareToDance opposes the application.
[2] The application was heard by way of conference. Mr Colmenares represented himself.
CareToDance was legally represented. Mr Colmenares provide written material in support of
his case and was questioned on that material. CareToDance relied upon witness statements of
Christian Basescu, one of the owners of the business, Mr Emiliano Nunez, and Ms Kai Ni
Huang. Mr Colmenares questioned each of CareToDance’s witnesses.
[3] CareToDance contends that Mr Colmenares was not unfairly dismissed and raises three
matters. First, it contends that Mr Colmenares was not dismissed as he resigned. Second, it
contends that he was dismissed in accordance with the Small Business Fair Dismissal Code.
Third, it contends that the dismissal was not harsh, unjust or unreasonable.
[4] I find that Mr Colmenares was dismissed, that his dismissal was not in accordance with
the Small Business Fair Dismissal Code, and that the dismissal was harsh, unjust or
unreasonable. I have decided to award Mr Colmenares compensation in lieu of reinstatement
of $24,496.54, less applicable taxation. These are my reasons.
Background
[5] CareToDance provides dance lessons in ballroom and Latin social dancing at its studio
in Rozelle in Sydney. It employs around 6 employees. This number varies from time to time.
The employees are dance teachers with some administrative support provided by a receptionist.
Dancing tuition is provided in group environments or private lessons. Classes occur between
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AUSTRALIA FairWork Commission
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1.00 pm and 9.00 pm Monday to Friday. Students enrol for semesters. They are taught in 45
minute classes.
[6] Mr Colmenares commenced working for CareToDance on 23 January 2023 as a Dance
Instructor. He was employed under a written contract of employment. His duties were to
provide dance instruction, prepare lessons, sell dance programs, perform maintenance duties,
attend promotional events, provide administrative support, and other duties as requested.
CareToDance also sponsored Mr Colmenares for the purposes of his temporary skill shortage
visa. At the time of his dismissal Mr Colmenares’ visa was due to expire in January 2025. Mr
Colmenares worked from 1.00 pm to 9.00 pm Monday to Friday.
[7] There was no issue with Mr Colmenares capacity to perform his job. I was provided
with material, including endorsements from students, that indicated he was a dedicated
instructor who was well liked by his students.
[8] What is contested is how Mr Colmenares’ employment came to an end.
[9] It was the practice of Mr Basescu, who in addition to being an owner of the business
also manages the studio, to meet with the instructors at the beginning of each day to discuss the
work to be performed that day. At the meeting held on 23 July 2024 Mr Basescu asked Mr
Colmenares to take the rubbish out at the end of the evening.
[10] It was the practice that instructors present at the end of the last lesson for the day to tidy
up, including collecting any rubbish lying around the studio and either carrying it to a garbage
bin which was outside the studio, or leaving it in the studio overnight to be taken to the bin at
the beginning of the next day. There appeared to be different practices as to who would take
the rubbish out, and when that would be done. On the 23 July 2024 it was to be taken out by
Mr Colmenares.
[11] At the end of the classes, at about 9.00 pm, on 23 July 2024 Mr Colmenares and another
instructor Mr Nunez collected the rubbish. After doing so Mr Colmenares told Mr Nunez that
as it was after 9.00 pm he would leave the rubbish in the reception area and take it to the bin at
the commencement of the shift the following day. Mr Colmenares left. After Mr Colmenares
left Mr Nunez took the rubbish out.
[12] At around 9.10 pm Mr Basescu sent a text message to Mr Colmenares and Mr Nunez in
the following terms:
Are you guys out of the studio
[13] Mr Nunez responded immediately:
I just left cause I take out the rubbish
[14] Mr Basescu responded: with two messages. One at 9.11 pm which simply said, “thank
you”. The other was directed to Mr Colmenares at 9.12 pm in these terms:
@neilcolmenares_make sure as advised in the meeting today, please take the rubbish out at
night
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[15] The following day Mr Basescu, Mr Colmenares and Mr Nunez were the only ones
present at the daily meeting. There were different accounts of how long the meeting went and
what was said. Mr Colmenares and Mr Nunez gave similar accounts. They said that the meeting
was brief. They said Mr Basescu raised the issue of Mr Colmenares not taking the rubbish out
the night before and told him to take it out that night. Mr Colmenares responded that his reason
for not doing so was it was already after working hours and that he intended to take it out in the
morning. He responded to the instruction to do it that night by stating that he would take the
rubbish out if he could shorten his lessons to allow time to do so in working hours. Mr Basescu
then told Mr Colmenares that if he would not follow directions he could leave. Mr Colmenares
left the meeting and walked to the staff room.
[16] During the conference Mr Basescu gave a different account of the meeting. He said that
the meeting commenced with the usual discussion about what was to occur that day. He said
that the topic of the rubbish was raised at the end of the meeting. He gave a similar account to
Mr Colmenares and Mr Nunez regarding the key discussion about the rubbish and Mr
Colmenares getting up and walking to the staff room. His account of what he said at the end of
the meeting was, “You can leave if you don’t want to listen”.
[17] Where there are differences in the accounts given of the meeting, I prefer Mr
Colmenares and Mr Nunez’s version. I find that it was a short meeting. It commenced with Mr
Basescu challenging Mr Colmenares about the rubbish. Mr Colmenares explained why he did
not take it out the night before and responded that he would only take the rubbish out if he could
finish his class early. It concluded with Mr Basescu telling Mr Colmenares to leave if he would
not do as he was told.
[18] I find that Mr Colmenares walked to the staff room. Mr Nunez followed. Mr Colmenares
was upset about what Mr Basescu had said. Mr Basescu followed a few moments later and
asked Mr Colmenares to meet with him in his office. Mr Colmenares went to Mr Basescu’s
office and the two had a discussion.
[19] There were differing accounts as to what was said during the one-on-one meeting. Mr
Colmenares’ account was that after entering the office Mr Basescu started by asking if
answering back to your boss in front of your colleague was the right thing to do in a business.
This was said repeatedly as Mr Colmenares tried to respond. Mr Basescu told Mr Colmenares
that if he wanted to say “no” he should not do so in front of colleagues. Mr Basescu then asked
Mr Colmenares what he wanted to do with his job. Mr Colmenares replied that he wanted to
work, and he wanted to work with a collaborative boss. Mr Basescu replied it was not about
collaboration, but about respect. And started comparing Mr Colmenares Filipino respect with
his own Eastern European views of respect, stating that is very different. Mr Basescu recounted
visiting the Philippines, and describing the people there as more submissive, and expressed
surprise that Mr Colmenares was not like that by saying no to his instruction.
[20] Mr Colmenares described the conversation as ending with Mr Basescu presenting him
with two options by saying the following:
You can stay here, and in our meetings, if I say you do this, you do that, you do it. If you have
an issue, I don’t want you to open your mouth in front of everyone, but you have to book a
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private meeting with me. If you can’t do it, you can pick up your things, go home and the
position is terminated instantly.
[21] Mr Colmenares said he replied, “Option 2” and Mr Basescu told him to email accounts
that he wishes to terminate his position.
[22] Mr Basescu gave a brief account of the second meeting. It was as follows:
Me: I said it at many meetings in the past two years that if you would like to raise something
with me or you disagree with me, you should set up a private meeting with me instead
of disrespecting me in front of other staff members. Emi has been here just a second
week. Do you think it was the right thing to do to disrespect me in front of him?
Neil: I am entitled to say no at the meetings. I will not take the rubbish out, unless I can make
the lesson shorter.
Me: I have asked you already, and I will ask again and give you these two options. You
either take my directions I give you at the meetings and if you have an issue, you will
set up a separate meeting with me, or the other option is that you resign. So, would you
like to stay or leave?
Neil: I choose the second and will leave.
[23] Following the meeting Mr Basescu sent an email to his accounts team. A copy was sent
to Mr Colmenares. It read:
Dear Accounts Team,
Neil has notified today the 24/7/2024 through a private meeting with myself around 12:30pm,
that he wishes to terminate his position and 482 visa with CareToDance Pty Ltd and he left the
Studio with his belongings.
Please advise how to proceed, Neil has been CC’ed in this email.
Thank you
[24] Mr Colmenares responded to that email on 25 July 2024 in the following terms:
Dear Accounts Team
I believe Mr Basescu forgot to mention the backstory of what really happened yesterday.
Before Mr Basescu and I had a private meeting, Him, Emi and I had a normal meeting at the
reception about me not bringing the trash out last tuesday 23/07/24. I respectfully told him that
I collected the trash from the male and female toilets and I put all the used dishes in the
dishwasher, while Emi did the staff and kitchen trash. I specifically told Emi that I will throw
the trash out first thing once I arrive at work yesterday 24/07/24, since it was already outside of
my working hours. I believe Mr Basescu is upset because when he blatantly said that it should
have been me who should take the trash out not Emi, I answered him back ‘No’. After that
meeting Mr Basescu wanted me to leave the premises. So then I went to the staff room and
packed my stuff.
As I was packing my stuff, he came to the staff room and told me to go to his office to have a
‘private meeting’.
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Mr Basescu, before you gave me the two options, you have already unfairly dismissed me in
front of Emi. You were very harsh on how I never learn to shut up in a meeting and how I always
talk back. When in fact, I wasn’t talking back at all, neither complaining, but merely
communicating. Because as far as I know, meetings, public or private, are always a two-way
conversation.
Mr Basescu, this is the second time I was unfairly dismissed. First was when I received an email
from “accounts” 24/05/2024, stating that my contract was terminated due to not submitting a
medical certificate, even though I had submitted it. They later retracted the termination after
realizing their mistake, but the threat and stress it caused were unwarranted and unfair. Second
is this.
Accounts Team, to set the record straight, I did not wish to terminate my position and 482 visa.
Mr Basescu was the one who asked me to pack my stuff and leave and so I did.
Thank you
[25] The next communication was an email from Mr Basescu sent at 10.32 pm on 27 July
2024. The email attached three documents; a termination of employment letter dated 25 July
2024, a final written warning dated 17 May 2024, and a letter entitled Abandonment of
Employment. The email required Mr Colmenares to return all company property to
CareToDance by Tuesday 30 July 2024.
[26] The first attachment to the 27 July 2024 email was entitled termination letter. It was
signed by Mr Basescu. The letter was in the following terms:
Dear Neil Jon Lungay Colmenares,
Following the final written warning issued to you on 17th May 2024, this letter serves as formal
notice of the termination of your employment with CareToDance Pty Ltd, effective
immediately.
Reasons for Termination:
1. Repeated Tardiness and Early Departures: As per our policy and your signed
Employment Contract dated 20th November 2022, it is clearly stated that employees
must adhere to the stipulated working hours. Despite the final written warning issued to
you on 17th May 2024, you have continued to arrive late to work on more than 18
occasions, resulting in a cumulative delay of over 2 hours. Additionally, you have
consistently finished work earlier than the required 9:00 PM. This persistent disregard
for company policies on attendance is unacceptable and constitutes grounds for
termination.
2. Insubordination: On Thursday, 24th July 2024, around 12:30 PM, you addressed one
of the Directors, Mr. Cristian Basescu, in a rude and disrespectful manner. You
explicitly stated your refusal to obey a directive and repeatedly indicated your
unwillingness to comply. This insubordination violates our company’s code of conduct
and undermines the authority of our management team.
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Clause Reference: “The Employee will also perform such other duties as the Employer
may allocate to the Employee from time to time.” (Full Time Employment Agreement
2022).
3. Fraternization Breach: Your involvement in an inappropriate relationship with a
client, specifically Lynn Chien, is a direct violation of our fraternization policy, as stated
in your Employment Contract. This breach of professional boundaries compromises the
integrity of our organization and is grounds for immediate dismissal. We have
documented proof of this violation should it be required for further review.
Clause Reference: “The Employee must not, without the Employer’s prior written
consent, undertake any other employment or be engaged in any activity or business
(including producing any income from personal skills or efforts as an individual) that
competes or is in conflict with the Employer’s business or hinders the performance of
the Employee’s duties, responsibilities and obligations or may be likely to do so” (Full
Time Employment Agreement 2022).
4. Failure to Achieve Required Certifications: As outlined in your Employment
Conditions, achieving the Associate Bronze and Full Bronze exam is mandatory for
your role. Your failure to pass these examinations demonstrates a lack of competence
necessary for your position, further justifying this termination.
Clause Reference: “The Employer may terminate this agreement at any time without
prior notice and without payment in lieu of notice if, in the Employer’s sole discretion,
the Employee... fails any dance or theory examination... is not an associate bronze
professional standard passed by a minimum of 80% within the first 6 months of their
employment... is not a full bronze professional standard passed by a minimum of 85%
within the first 12 months of their employment. (Full Time Employment Agreement
2022).
5. Abandonment of Employment: Your continued absence from work without proper
notification or valid reason constitutes abandonment of employment. This behaviour
demonstrates a clear disregard for your responsibilities and obligations towards
CareToDance Pty Ltd.
6. Three Warning Policy: According to our three-warning policy, any employee who has
been issued three formal warnings for any breaches of the company’s policies is subject
to termination. You have been issued with multiple warnings and have not rectified your
behaviour.
Clause Reference: “Any breach of the Employer’s policies may be considered
misconduct and may result in disciplinary action or termination of the Employee’s
employment. The Employee must participate and cooperate with the Employer in any
investigation of such breaches”(Full Time Employment Agreement 2022).
Please note that any one of these reasons is sufficient grounds for termination. However,
you have accumulated six separate reasons, further necessitating this action.
Given these breaches of our policies and your Employment Contract, we have no alternative but
to terminate your employment with immediate effect. Your last day with CareToDance was on
Tuesday the 23rd of July 2024. You are required to return all company property in your
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possession, including keys, identification cards, and any other items belonging to CareToDance
Pty Ltd.
Please be advised that your final pay check, including any accrued leave entitlements, will be
processed and made available to you as per the company’s payroll procedures.
We regret that this action has become necessary and wish you the best in your future endeavours.
Sincerely
[27] The third attachment to the letter was entitled Abandonment of Employment. It was
signed by Mr Basescu. It read:
Dear Neil Jon Lungay Colmenares,
I refer to your email to dated 25 July 2024.
Your recollection of events is inaccurate and misleading.
On 24 July 2024, after our dispute in front of staff, I directed you to attend my office so that we
could discuss the situation. In our discussion I indicated to you that either you could remain as
an employee and follow my instructions, or you can leave. You confirmed to me that you wished
to resign immediately and afterwards took your belongings and left the studio. You did not
contact me for the rest of the day and have since not returned.
At no point in our discussions did I direct you to leave the premises or indicate to you that your
employment was terminated. Instead, I left that option to you and you indicated you wished to
resign.
Although I accept your resignation, clause 14(b) of your Employment Agreement dated 20
November 2022 requires that you provide 8 weeks’ written notice of your resignation.
As you have not returned to work, the company considers that you have abandoned your
employment. As you have provided no notice period for the termination of your employment,
you will forfeit any remuneration from the date of your termination, pursuant to clause 14(b) of
your Employment Agreement. You will be paid your accrued statutory leave entitlements and
unpaid salary up to 24 July 2024.
I remind you of your confidentiality and intellectual property obligations which remain
following the termination of your employment and direct you to comply with all post
termination obligations set out in the Employment Agreement.
[28] On 9 August 2024 Mr Colmenares lodged the current application claiming that he was
unfairly dismissed.
Consideration
[29] Section 390 of the Act provides that the Commission may order a person’s
reinstatement, or the payment of compensation to a person if satisfied that the person was
protected from unfair dismissal and was unfairly dismissed. Section 382 describes when a
person is protected from unfair dismissal. There was no dispute that Mr Colmenares was
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protected from unfair dismissal, and I find that he was. The next question is whether he was
unfairly dismissed.
[30] Section 385 relevantly provides that a person has been unfairly dismissed if the
Commission is satisfied of four things: the person has been dismissed; the dismissal was harsh,
unjust or unreasonable; the dismissal was not consistent with the Small Business Fair Dismissal
Code, and the dismissal was not a case of genuine redundancy.
[31] CareToDance contends that Mr Colmenares was not unfairly dismissed and raises three
matters under s. 385. First, it contends that Mr Colmenares was not dismissed as he resigned.
Second, it contends that he was dismissed in accordance with the Small Business Fair Dismissal
Code. Third, it contends that the dismissal was not harsh, unjust or unreasonable.
Was Colmenares dismissed?
[32] Section 12 of the Act defines dismissed by referring to s386. Section 386(1) provides
that a person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s
initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct,
or a course of conduct, engaged in by his or her employer.
[33] Section 386(2) of the FW Act sets out circumstances where an employee has not been
dismissed, none of which are presently relevant.
[34] A Full Bench of the Commission considered the two limbs of s.386(1) in Bupa Aged
Care Australia Pty Ltd v. Tavassoli [2017] FWCFB 3941. After considering in detail the case
law associated with the expression “terminated on the employer’s initiative” including notions
of constructive dismissal and forced resignation, the Full Bench said:
[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal”
established in s.386(1) of the FW Act, we consider that the position under the FW Act may be
summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where,
although the employee has given an ostensible communication of a resignation, the
resignation is not legally effective because it was expressed in the “heat of the moment”
or when the employee was in a state of emotional stress or mental confusion such that
the employee could not reasonably be understood to be conveying a real intention to
resign. Although “jostling” by the employer may contribute to the resignation being
legally ineffective, employer conduct is not a necessary element. In this situation if the
employer simply treats the ostensible resignation as terminating the employment rather
than clarifying or confirming with the employee after a reasonable time that the
employee genuinely intended to resign, this may be characterised as a termination of
the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the
employer will be a dismissal within the second limb of the definition in s.386(1)(b).
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
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The test to be applied here is whether the employer engaged in the conduct with the
intention of bringing the employment to an end or whether termination of the
employment was the probably result of the employer’s conduct such that the employee
had no effective or real choice but to resign. Unlike the situation in (1), the requisite
employer conduct is the essential element.
[35] CareToDance contends that Mr Colmenares resigned at the conclusion of the second
meeting on 24 July 2024 with Mr Basescu in his office. It submits that he was given the option
of leaving and he chose to do so. CareToDance asserts that Mr Basescu’s account of the
resignation was provided in the email of 24 July 2024 and that, while Mr Colmenares disputed
that he resigned in his reply of 25 July 2024, he failed to return to work.
[36] I find that Mr Colmenares was dismissed at the meeting on 24 July 2024. There were
two meetings. The first, the daily meeting at which Mr Nunez was present. Which ended with
Mr Basescu inviting Mr Colmenares to leave. Mr Basescu’s invitation to leave at the first
meeting was supplanted by his request in the one on one meeting shortly after. At the conclusion
of the second meeting Mr Basescu presented Mr Colmenares with an ultimatum to obey his
directions or leave. There was a contest in the evidence whether Mr Basescu used the word
resign. It is of no consequence, but I prefer Mr Colmenares account that he used the word leave.
Even if the word resign was used, I would consider Mr Colmenares choice of what both referred
to as the second option meets the description in BUPA of a decision made in a state of emotional
stress or mental confusion such that Mr Colmenares could not reasonably be understood to
have, by taking the second option, conveyed a real intention to resign.
[37] The correspondence which followed where Mr Basescu stated in his email of 24 July
2024 that Mr Colmenares wished to terminate his position and 482 visa with CareToDance and
Mr Colmenares’ response on 25 July 2024 making it clear that he did not wish to terminate his
position and 482 visa to fortifies my view that Mr Colmenares did not intend to and in fact did
not resign. His employment did end on 24 July 2024, but it was brought about by the actions of
Mr Basescu.
[38] The email from Mr Basescu on 27 July 2024 simply added confusion to the termination
of Mr Colmenares employment. It claimed to accept Mr Colmenares resignation, asserted that
Mr Colmenares had abandoned his employment while at the same time purporting to dismiss
him on various counts. I find that the email was of no effect because Mr Colmenares
employment had already ceased on 24 July 2024 by Mr Basescu dismissing.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[39] CareToDance raised that the dismissal was not unfair because it complied with the Small
Business Fair Dismissal Code. The argument was put as a factor to be considered under s. 387(f)
and (g) which refer to the size of the employer’s business as factors to be taken into account
when considering whether a dismissal was harsh, unjust or unreasonable for the purposes of s.
385(b). The question arises separately, however, and directly under s. 385(c), which requires
for the purpose of determining that a person has been unfairly dismissed whether the
Commission is satisfied that the dismissal was not consistent with the Small Business Fair
Dismissal Code. The effect of s.385(c) of the Act is that when a dismissal is consistent with the
Code, it is not an unfair dismissal, and the application must then be dismissed.
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[40] The Small Business Fair Dismissal Code is defined in s. 388:
388 The Small Business Fair Dismissal Code
(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given
notice of the dismissal (whichever happened first), the person’s employer was a small
business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to
the dismissal.
[41] The Code came into operation for the purposes of s. 388(1) on 1 July 2009. It relevantly
reads:
The Code
Summary Dismissal
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
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completed checklist, copies of written warning(s), a statement of termination or signed witness
statements.
[42] Section 23 provides that an employer is a small business employer if the employer
employs fewer than 15 employees. At the time Mr Colmenares was dismissed CareToDance
employed fewer than 15 employees. The question is whether in dismissing Mr Colmenares
CareToDance complied with the Code.
[43] Mr Colmenares was not dismissed for serious conduct. The paragraph of the Code
dealing with summary dismissal does not apply.
[44] CareToDance contends that Mr Colmenares was issued a number of warnings about his
conduct. It relied upon a final written warning dated 17 May 2024. That warning was attached
to the email of 27 July 2024. It referred to tardiness and disrespectful behaviour and
insubordination and relevantly stated:
Disrespectful Behaviour and Insubordination:
In addition to your tardiness, you have repeatedly exhibited rude and disrespectful behaviour
towards the directors of CareToDance. This includes questioning business decisions, talking
over the directors’ multiple times, rolling your eyes, failure to follow orders, reluctancy to
perform assigned tasks, shifting responsibilities onto other colleagues and displaying a
general lack of respect in front of other staff members. Specific instances include but not
limited to:
28/09/2023; 16/11/2023; 16/5/2024; 17/5/2024.
Such behaviour is unacceptable and has a negative impact on our team and overall productivity.
We expect all employees to adhere to our standards of professional conduct and demonstrate
a commitment to their responsibilities
Final Warning:
This is your final written warning. You are expected to correct your behaviour immediately. We will
monitor your behaviour and performance over the next 4 months. Any further instances of tardiness
or disrespectful behaviour will result in the termination of your employment with CareToDance Pty
Ltd. Additionally, as your conduct continues to violate our professional standards, we will proceed
with cancelling your visa.
[45] This warning meets the description of a warning in the Code, in so far as it provides
reasons why Mr Colmenares was at risk of being dismissed. The reasons appeared to be based
on Mr Colmenares’ conduct. The warning was in writing and stated that Mr Colmenares risked
being dismissed if there was no improvement. It is a warning that related to the circumstances
for which Mr Colmenares was dismissed. The events on the evening of 23 July 2024, where Mr
Colmenares failed to undertake the assigned task of putting out the rubbish and his reluctance
on 24 July 2024 to take the rubbish out at the finish of his shift on 24 July 2024, and Mr
Basescu’s concerns about how Mr Colmenares spoke to him at the meeting with Mr Nunez on
24 July 2024 are caught by the warning.
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[46] Mr Basescu indicated that this warning was emailed to Mr Colmenares on 17 May 2024.
He also said that at no stage did he discuss the warning with Mr Colmenares. Mr Colmenares
did not contest that the warning was emailed to him and confirmed that he was never given the
opportunity to discuss the warning with Mr Basescu. He also had no recollection of the
instances referred to in the warning and those matters had not been explained to him.
[47] The procedural requirements of the Code require the employer to 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. The evidence is that no such
discussions occurred. It follows that there were no discussions with Mr Colmenares where he
could have another person present to assist. Those two requirements of the Code were not met.
[48] As CareToDance failed to meet the procedural requirements in the Code I am satisfied
for the purposes of s. 385(c) that the dismissal was not consistent with the Code.
Was the dismissal harsh, unjust or unreasonable?
[49] The third question is whether the dismissal harsh, unjust or unreasonable for the
purposes of s. 385(b). In considering that question I must take into account the matters set out
in s. 387 of the Act.
[50] Section 387(a) directs my attention to whether there was a valid reason for the dismissal
related to Mr Colmenares’ conduct. Mr Colmenares was dismissed on 24 July 2024 due to his
failure to take out the rubbish on 23 July 2024 and his reluctance to do so on 24 July 2024.
CareToDance did not press the reasons in the letter of 27 July 2024 other than to point to
insubordination in relation to the incident concerning taking out the rubbish. It was not open to
rely on the reasons in the letter that went beyond those events in in any event as Mr Colmenares
was dismissed 3 days earlier and the reason was the events of 23 and 24 July 2024.
[51] The failure to take out the rubbish on 23 July 2024 did not justify dismissal. So far as it
could be considered misconduct for failing to follow an instruction it was a minor matter. Mr
Colmenares cleaned the studio at the end of his classes, was aware he had to take the rubbish
out, but decided to follow a common practice of not doing so at the end of the night and intended
to do so the next day. The warning issued to Mr Colmenares on 17 May 2024 indicated that
there had been some concerns about his failure to perform assigned tasks, but I do not consider
that the failure to take the rubbish out at the end of a shift to be of such moment that it met the
description of a failure to perform an assigned task as Mr Colmenares intended to take the
rubbish out the next day but was prevented in doing so by Mr Nunez taking it out after Mr
Colmenares left. I note there was a practice of not taking the rubbish out at night but taking it
out the following day and Mr Colmenares was willing to perform the task in accordance with
that practice.
[52] A further aspect of Mr Colmenares’ conduct that led to his dismissal was his reluctance
to take the rubbish out on 24 July 2024 unless he could finish his classes early. Again, I do not
regard this as conduct justifying dismissal. Mr Colmenares was willing to take the rubbish out
the next morning. The failure to take the rubbish out in the evening was not of such moment
that it was going to impact on CareToDance’s business in any significant way, if at all. This
was a minor matter that did not justify dismissal.
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[53] I also find that taken together Mr Colmenares conduct regarding the rubbish on 23 and
24 July 2024 did not amount to misconduct justifying dismissal. My finding includes the
conduct of Mr Colmenares during the meeting with Mr Basescu and Mr Nunez. Mr Basescu
expressed the view that the way Mr Colmenares spoke to him at the meeting, in particular his
refusal to take the rubbish out, amounted to insubordination. Mr Colmenares objected to taking
the rubbish out after his shift finished and indicated he would take it out in the evening if he
could end his last class early to allow time to do so. This was a minor matter that may have
been resolved if Mr Colmenares was more flexible in his attitude to working time but his
inflexibility and the manner in which he raised his concern was not insubordination. It was not
conduct that justified dismissal either on its own or in the context of the issues concerning the
removal of the rubbish. Mr Colmenares was entitled to express the views that he did. The
exchange should not have resulted in Mr Colmenares’ dismissal.
[54] My findings under s. 387(a) weigh in favour of a finding that the dismissal was harsh,
unjust or unreasonable.
[55] Section 387(b) and (c) go to whether the employee was notified of the valid reason
related to capacity or conduct and given an opportunity to respond to those matters.
CareToDance submitted that it had written to Colmenares on 28 August 2023 as well as the
letter of 17 May 2024 raising issues with his conduct. The 28 August 2023 communication was
an email. It went to the issue of tardiness. It was said to be a second warning and that if a third
warning was issued on the topic, then Mr Colmenares’ employment status may be affected. The
letter did not apply to the circumstances that led to the dismissal and is not relevant to the
dismissal which had nothing to do with tardiness.
[56] I have dealt with the warning letter of 17 May 2024 above. I do not consider it to
constitute a notification as contemplated by ss. 287 (b) and (c). It was not notice that he would
be dismissed for the type of conduct that occurred on 23 and 24 July 2024.
[57] So far as the meeting in Mr Basescu’s office on 24 July 2024 could be considered
notification of the reason for dismissal I consider that the way in which that discussion occurred
did not amount to the type of notice contemplated by s. 387(b). The discussion resulted in Mr
Colmenares being given an ultimatum rather than the type of discussion a reasonable employer
may hold with an employee who was faced with dismissal for misconduct. I also find that Mr
Colmenares was not giving an opportunity to respond to the reason for dismissal.
[58] Instead, I find that the procedure followed by Mr Basescu and the way in which Mr
Colmenares was treated on 24 July 2024, having been called to a meeting and given an
ultimatum about his employment, was contrary to with the procedure contemplated by s. 387
(b), (c) and weighs in favour of a finding that the dismissal was harsh, unjust or unreasonable.
[59] Section 387(d) goes to whether there was an unreasonable refusal to allow the employee
to have a support person present to assist at any discussion relating to dismissal. Mr Colmenares
did not ask to have representation and so it was not refused. CareToDance submits that as Mr
Colmenares did not ask to be represented CareToDance complied under 387(d) and this weighs
in favour of finding that the dismissal was not harsh, unjust or unreasonable. I reject the
submission. As no request was made there was no refusal, and the matter is neutral in my
consideration.
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[60] Section 387(e) relates to dismissals for unsatisfactory performance. There was no
suggestion that Mr Colmenares did not perform his job as a dance instructor well. The evidence
of commendations from his students suggest he was a good instructor.
[61] Section 387(f) and (g) go to the size of the employer’s enterprise or lack of dedicated
human resources management specialists and how they may have had an impact on the
procedures followed in effecting the dismissal. CareToDance is a small business. Its lack of
dedicated human resources may explain the way the dismissal occurred. I note the practice of
sending emails to the Accounts Team. I was not told who the Accounts Team were or if they
had any human resources expertise. Nor was I told whether the Accounts Team was a dedicated
team supporting the business. I expect not. I consider this matter neutral in my assessment of
fairness.
[62] CareToDance contends that while it was a small business it nonetheless provided
procedural fairness to Mr Colmenares. It also submitted that it complied with the Small Fairness
Dismissal Code. I have dealt with these matters earlier. There was not procedural fairness as
contemplated by s. 387 (b) and (c) and the Code was not followed. I reject the submission.
[63] Section 386(h) requires that I consider other relevant matters. CareToDance submitted
that relevant to this paragraph I should take into account that Mr Colmenares resigned,
alternatively he abandoned his employment, and thirdly he did not make any attempt to return
to work. I have already found Mr Colmenares was dismissed. There was no resignation. As to
whether he abandoned his employment, in the correspondence of 25 July 2024 Mr Colmenares
said he did not want to terminate his employment. He quite clearly did not abandon his
employment. In his email Mr Colmenares said that he believed he had been dismissed the day
before. There is no basis for CareToDance claiming, either in its letter of 27 July 2024, nor its
submissions in these proceedings, that the employment came an end because Mr Colmenares
abandoned his employment. These matters do not tell against a finding that the dismissal was
harsh, unjust or unreasonable.
[64] There is one matter in the material that I find relevant to the dismissal. Mr Colmenares
was from the Philippines. He was recruited by CareToDance to fill a skill shortage.
CareToDance sponsored Mr Colmenares so that he could obtain a visa to allow him to work.
He relocated to Australia to work for CareToDance. Mr Colmenares travelled from overseas to
fill a skill shortage, and he performed well in performing the work for which he was recruited.
I consider these matters weigh in favour of a finding that it was particularly harsh to dismiss
Mr Colmenares for such a minor matter when considered against this background.
[65] My conclusion after considering the matters in s. 387 is that Mr Colmenares dismissal
was harsh, unjust and unreasonable.
[66] Accordingly, I find that Mr Colmenares was unfairly dismissed.
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Remedy
[67] Mr Colmenares did not seek reinstatement. He does not want to work in a hostile
environment. CareToDance is a small workplace. I find the relationship has broken down and
reinstatement is inappropriate.
[68] Mr Colmenares seeks compensation. I am satisfied that it is appropriate to make an order
for payment of compensation in lieu of reinstatement. CareToDance submits that two factors
should be taken into account in determining the amount of compensation. First, that Mr
Colmenares had only worked for CareToDance for less than two years. Second that he had
engaged in misconduct and the compensation should be reduced on account of that misconduct.
I will consider those matter as well as the other matters required by s. 392.
[69] Subsection 392(2) of the Act requires all the circumstances of the case be taken into
account when determining an amount to be paid as compensation in lieu of reinstatement. The
subsection requires me to consider the matters listed in s. 392 (2)(a) to (g). In relation to
paragraph (a) I note that there is no suggestion that an order for compensation will have an
impact on the financial situation of the business. For the purposes of s. 392(b) I note that Mr
Colmenares commenced work for CareToDance in January 2023 so only worked for the
company for 18 months.
[70] In relation to paragraph (c), there is some uncertainty associated about how long Mr
Colmenares would have remained with the business. CareToDance had raised concerns about
his conduct in its letter of 17 May 2024. The specific issues referred to, such as tardiness, had
been resolved and there was only a general concern described as insubordination that might be
said to still have currency at the time of the dismissal. I do not regard those matters as suggesting
that the employment would have ended by Mr Colmenares being validly dismissed as a result
of his conduct in the near future. There appeared to be some tension in the relationship between
Mr Colmenares and the owners of the business. That tension did not prevent him from teaching
his dance classes to a high standard. Mr Colmenares said that he certainly would not have left
the business before the end of the current semester, which ran until the end of September 2024.
Another factor is that his visa was valid until January 2025.
[71] Applying this consideration involves some speculation, and my view is that Mr
Colmenares would have continued to work for the company at least until his visa expired in
January 2025. I was not provided with the visa, but I understand it to have been a 2 year visa
which would have expired around 23 January 2025. Had he worked for that time he would have
earned a further 26 weeks’ pay. For the purposes of giving that time a monetary value for the
purposes of calculating a compensation order Mr Colmenares’ weekly rate, derived from the
salary set out in his contract of $62,229.18, was $1,196.72 per week. He would have received
26 weeks further pay, or $31,114.69
[72] As to mitigation, which is mentioned in s. 392(2)(d), Mr Colmenares sought and gained
other employment. He started in a regional dance company in late October 2024 albeit on
reduced hours and pay. He provided a pay slip from 4 November 2024 from the other dance
company. The payslip indicates that he worked for 1 week at 15 hours per week and was paid
at a salary of $31,286.00 or $601.65 per week. For the purposes of s.392(2)(e) and (f) Mr
[2024] FWC 3580
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Colmenares has received earnings to date of since the dismissal and that must be taken into
account in making the order.
[73] Section 392(2)(g) requires me to consider any other matter I consider relevant. I do not
consider any other matter relevant.
[74] The approach taken in the Commission to the assessment of the quantum of
compensation under s.392 of the Act is to apply the Sprigg formula derived from the Australian
Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival
Supermarket.1 Put briefly, it involves estimating the remuneration the employee would have
received but for the dismissal, deducting monies earned since termination, discounting that
amount for contingencies and assessing the tax implications to ensure no adverse impact on the
employee.
[75] Section 392(5) provides that an order for compensation can be no more than 26 weeks’
pay.
[76] On the basis that Mr Colmenares’ relevant rate of pay derived from the salary set out in
his contract which was $62,229.18, amounted to $1,196.72 per week, Mr Colmenares’ loss
arising from the dismissal was as follows:
Projected earnings
2/7/24 to 23/1/25
26 weeks $31,114.69
Less earnings since
the dismissal:
8 weeks at $601.65 ($4,813.20)
Less expected
earnings up to the
time of the order:
3 weeks at $601.65 ($1,804.95)
Earnings lost: $24,496.54
[77] I consider that Mr Colmenares should receive compensation of $24,496.54 in lieu of
reinstatement. This amount will be subject to taxation which I do not regard as adversely
impacting Mr Colmenares.
[78] Under s.292(3) I may reduce this amount if the employee’s conduct warrants doing so.
I do not propose to do so here. Mr Colmenares conduct did not justify a reduction in the amount
of compensation.
Conclusion
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[79] For the reasons outlined I consider that Mr Colmenares was unfairly dismissed and will
order that CareToDance pay him an amount of compensation of $24,496.54 less applicable
taxation in lieu of reinstatement.
[80] An order requiring payment in this amount will issue separately. CareToDance will be
given 21 days to pay this amount. This timeframe will also be included in the order.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR782783
1 (1998) 88 IR 21
OF THE FAIR THE SEAL OF T COMMISSION
