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Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Leea Semenov
v
Ozi4x4 Pty Ltd
(U2024/12475)
DEPUTY PRESIDENT ROBERTS SYDNEY, 3 FEBRUARY 2025
Unfair dismissal – whether dismissal was in accordance with Small Business Fair Dismissal
Code – whether belief held on reasonable grounds that conduct justified immediate dismissal -
alleged gross misconduct – whether valid reason for dismissal – dismissal unfair –
compensation in lieu of reinstatement.
[1] Ms. Leea Semenov (Applicant) has applied to the Fair Work Commission (Commission)
under s.394 of the Fair Work Act 2009 (Cth) (Act) for a remedy for what she alleges was her
unfair dismissal by her former employer Ozi4X4 Pty Ltd (Respondent).
When can the Commission order a remedy for unfair dismissal?
[2] 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 at the time of being dismissed and the person has been unfairly
dismissed.
[3] Section 382 provides that a person is protected from unfair dismissal if the person is an
employee who has completed a period of employment of at least the minimum employment
period and the person is covered by a modern award, an enterprise agreement applies to the
person, or the person earns less than the high-income threshold. It was not contested, and I am
satisfied, that the Applicant is protected from unfair dismissal for the purposes of s.382.
[4] Section 385 relevantly provides that a person has been unfairly dismissed if the
Commission is satisfied of four matters: the person has been dismissed, the dismissal was harsh,
unjust or unreasonable, the dismissal was not consistent with the Small Business Fair Dismissal
Code (SBFDC) and the dismissal was not a case of genuine redundancy.
[5] The Respondent in this matter submitted that the company was a small business
employer and had complied with the SBFDC. Further, the Respondent contended that the
Applicant had committed an act of gross misconduct at work which provided a valid reason for
the termination of the Applicant’s employment and that in those circumstances, the
[2025] FWC 288
DECISION
AUSTRALIA FairWork Commission
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[2025] FWC 288
Commission could not be satisfied that the dismissal was harsh, unjust or unreasonable. For the
reasons set out below those arguments are rejected.
Background
[6] The Applicant was employed on a part-time basis as an Administration
Support/Complaints Officer by the Respondent. The Respondent is a wholesaler and retailer of
automotive accessories.
[7] According to the Respondent, the Applicant was not responding to radio calls and was
found asleep at her desk at work by her senior manager on 1 October 2024. The Applicant
denied that she was asleep.
[8] On 2 October 2024, a day on which the Applicant did not work, the Applicant received
a telephone call from the store manager. The Applicant said she was unable to take the call as
she was attending a class at university. A short time later she received text messages to say that
her employment had been terminated effective immediately. The Applicant did not work for
the Respondent again.
Small Business Fair Dismissal Code (SBFDC)
[9] Section 396 of the Act requires the Commission to consider, amongst other things,
whether the dismissal was consistent with the SBFDC before considering the merits of the
application.
[10] A person’s dismissal is consistent with the SBFDC if:
• immediately before the time of the dismissal or at the time the person was given notice
of the dismissal (whichever happens first), the person’s employer was a small business
employer, and
• the employer complied with the SBFDC in relation to the dismissal.1
[11] The Respondent submitted, and I am prepared to assume for present purposes, that the
Respondent employed 6 employees at the relevant time and was therefore a small business
employer.
[12] The SBFDC provides that:
‘It is fair 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.’
[13] In the case of summary dismissal the task of the Commission is therefore to ascertain
whether the employer had a reasonable belief that the conduct of the employee was serious
enough to warrant immediate dismissal. It is not necessary for the Commission to determine
1 Section 388(2).
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whether the employer was correct in the belief that it held2. In Pinawin T/A
RoseVi.Hair.Face.Body v Domingo3 the Full Bench endorsed the approach taken in Harley v
Rosecrest Asset Pty Ltd T/A Can Do International4 where the Commission described the
approach to the issue of the employer’s belief as follows:
[8] For an employer to believe on reasonable grounds that the employee’s conduct
is sufficiently serious to justify immediate dismissal, it is firstly necessary for the
employer to establish that the employer did in fact hold the belief that as a matter of
fact that (i) the conduct was by the employee; (ii) the conduct was serious; and (iii) that
the conduct justified immediate dismissal. This is to be contrasted to the provisions of
s.387(a) where FWA, in determining whether there was a valid reason for the dismissal,
must find whether the conduct in fact occurred.
[9] Secondly, it is necessary for the employer to establish that there are reasonable
grounds for the employer holding the belief. It is thus necessary for the employer to
establish a basis for the belief held which is reasonable. In this regard it would usually
be necessary for the employer to establish what inquiries or investigations were made
to support a basis for holding the belief. It would also ordinarily be expected that the
belief held be put to the employee, even though the grounds for holding it may not be.
Failure to make sufficient inquiries or to put the accusation to the employee in many
circumstances might lead to a view that there were no reasonable grounds for the belief
to be held.
[14] In this case there is insufficient evidence for me to be able to conclude that the
Respondent believed on reasonable grounds that the conduct was sufficiently serious to justify
immediate dismissal. The Respondent did not provide sworn evidence from the person who
witnessed the alleged misconduct or was a person who could have been said to have held the
relevant belief for the Respondent. There was no evidence of an inquiry or investigation being
undertaken to provide a basis for any belief held by the employer. Nor did the Respondent
challenge the Applicant’s evidence that no-one spoke to her about the allegation of misconduct
prior to the dismissal taking effect. I am not satisfied that the employer held the relevant belief
on reasonable grounds. I conclude that the dismissal was not consistent with the SBFDC.
Was the dismissal harsh, unjust or unreasonable?
[9] Section 387 of the Act sets out the matters that are to be considered in determining
whether the Commission is satisfied that the dismissal was harsh, unjust or unreasonable. It
provides as follows:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
2 Pinawin T/A RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359.
3 Ibid
4 [2011] FWA 3922.
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[2025] FWC 288
(a) whether there was a valid reason for the dismissal related to the
person’s capacity or conduct (including its effect on the safety
and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any
reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to
have a support person present to assist at any discussions
relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the
person—whether the person had been warned about that
unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would
be likely to impact on the procedures followed in effecting the
dismissal; and
(g) the degree to which the absence of dedicated human resource
management specialists or expertise in the enterprise would be
likely to impact on the procedures followed in effecting the
dismissal; and
(h) any other matters that the FWC considers relevant.
387(a) - Valid reason for dismissal relating to capacity or conduct
[10] The evidence in relation to the reason for dismissal (and other matters) was limited. In
response to questioning from the Commission, the Applicant denied that she was asleep as
alleged, or that she had had any discussion with anyone from the Respondent prior to her
termination in which it was put to her that she had been asleep at work. The Applicant said she
believed she may not have had the radio on because a former work colleague had ordinarily
turned on the radio which they shared, but that the colleague was not working with her on the
day in question. The Applicant said this may have explained any alleged failure to respond to
radio calls on that day.
[11] The Respondent chose not to cross-examine the Applicant. The person who was said to
have discovered the Applicant asleep at work did not attend the hearing to give evidence. The
Respondent simply provided in the employer response form what purported to be an email from
an unidentified manager to the business owner on 15 November 2024 to say that they had found
the Applicant asleep at work. The Respondent’s representative was unable to give direct
evidence about the matter and made a submission to the effect that he was told by others that
the Applicant was asleep.
[12] Given the evidence available to me, I accept the Applicant’s version of events and
conclude that the Applicant was not asleep as alleged. I therefore find that there was no valid
reason for dismissal related to capacity or conduct.
387(b) -Was the Applicant notified of the valid reason?
[13] Proper consideration of s.387(b) requires a finding to be made as to whether the
applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid
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reason found to exist under s.387(a).5 In this case, as I have concluded that there was no valid
reason, I also conclude that the Applicant was not notified of the valid reason.
387(c) - Was the Applicant given an opportunity to respond to any valid reason related to
their capacity or conduct?
[14] 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.6
[15] 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.7 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.8 In this
case there was no valid reason and in any event, the evidence did not demonstrate that the
Applicant had been provided with any opportunity to respond to any allegations against her.
She was removed from the employer’s ‘group chat’ system and after a failed attempted
telephone call was later dismissed by text message without being spoken to about the
termination of her employment.
387(d) - Did the Respondent unreasonably refuse to allow the Applicant to have a support
person present to assist at discussions relating to the dismissal?
[16] There was no unreasonable refusal in this instance because there was no request for a
support person to attend discussions relating to dismissal. There were no discussions about the
dismissal before it occurred.
387(e) - Was the Applicant warned about unsatisfactory performance before the dismissal?
[17] The Applicant was dismissed for reasons relating to conduct rather than performance. I
do not regard this as a relevant factor in the present case.
387(f) and (g) - To what degree would the size of the Respondent’s enterprise be likely to
impact on the procedures followed in effecting the dismissal and to what degree would the
absence of dedicated human resource management specialists or expertise in the
Respondent’s enterprise be likely to impact on the procedures followed in effecting the
dismissal?
[18] The Respondent is a small business and there was no evidence of any specialist
resources or expertise in dealing with these matters. Nonetheless, the process that was adopted
5 Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
6 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].
7 RMIT v Asher (2010) 194 IR 1, 14-15.
8 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
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[2025] FWC 288
was crude by any measure. I do not consider that these factors explain or mitigate what was a
very poor procedure that resulted in the Applicant losing her employment.
387(h) - What other matters are relevant?
[19] I do not consider that there are any other additional factors that need to be taken into
account under this heading.
Conclusion
[20] Having regard to matters referred to above, I am of the view that the Applicant’s
dismissal was harsh and unreasonable and that the dismissal was unfair.
Remedy
[21] The Applicant sought compensation rather than reinstatement. The Commission can
only order the payment of compensation where it is satisfied that reinstatement is inappropriate
and it considers that such an order is appropriate in all the circumstances.9
[22] I am satisfied that it is appropriate in the circumstances to make an order for
compensation in lieu of reinstatement. In doing so, I am required by s.392 to take account of all
of the circumstances of the case, including the matters listed in subsections (2)(a) to (g) of that
section. I have taken those matters into account. I note in particular that there was no evidence
as to the effect of any order on the viability of the Respondent business. I also note the
Applicant’s advice that following her termination, she obtained alternative employment within
3 weeks from the date of the termination. The latter factor is a matter which offsets the potential
loss of earnings resulting from the termination and is a matter which should be taken into
account under s.392(2)(e) in determining an appropriate order.
[23] The well-established approach to the assessment of the quantum of compensation under
s.392 of the Act is to apply the “Sprigg formula”. That formula is derived from the Australian
Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival
Supermarket.10
[24] The approach in Sprigg is as follows:
Step 1: Estimate the remuneration the employee would have received, or have been
likely to have received, if the employer had not terminated the employment
(remuneration lost).
Step 2: Deduct monies earned since termination. Workers’ compensation payments are
deducted but not social security payments. The failure of an applicant to mitigate his
or her loss may lead to a reduction in the amount of compensation ordered.
Step 3: Discount the remaining amount for contingencies.
9 Section 390(3).
10 (1998) 88 IR 21.
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Step 4: Calculate the impact of taxation to ensure that the employee receives the actual
amount he or she would have received if they had continued in their employment.
Step 5: Assess the figure against the compensation cap.
[25] I have no reason to believe that in the absence of the termination, the Applicant would
not have remained employed by the Respondent until the present time. I would assess the
amount of compensation to be awarded on this basis and taking into account that the Applicant
obtained alternative equivalent employment 3 weeks after the date of her termination. In that
event it is appropriate to make an order that the Respondent pay the Applicant an amount
equivalent to 3 weeks wages based on the Applicant’s average number of hours worked per
week, that is:
3 weeks wages being 2.5 days per week (20 hours) at $33 per hour = $1,980 (gross)
[26] An order reflecting this outcome will be published separately with this decision11.
DEPUTY PRESIDENT
Appearances:
Ms L Semenov, the Applicant
Mr A Sommerville, Respondent
Hearing details:
23 January 2025
Printed by authority of the Commonwealth Government Printer
PR783909
11 PR783910
THE WORKCO THE S 1 MMISSION
