1
Fair Work Act 2009
s.394—Unfair dismissal
Shannon Everaardt
v
Absolute QSEC Pty Ltd
(U2024/11646)
COMMISSIONER SLOAN SYDNEY, 3 FEBRUARY 2025
Application for an unfair dismissal remedy
[1] Absolute QSEC Pty Limited employed Shannon Everaardt as a Security Officer.
Her employment commenced on 11 September 2023. She was employed on a casual basis.
[2] On Friday, 20 September 2024, Ms Everaardt called Bruce Birks, Absolute QSEC’s
Operations Manager, and asked why she had not received her roster for the following week.
(Ms Everaardt usually received her roster for the following week on the preceding Thursday.)
Mr Birks told Ms Everaardt that he was still working on the rosters and that she would get hers
soon.
[3] When Ms Everaardt had still not received her roster, she called Mr Birks again on
Saturday, 21 September 2024. Mr Birks told Ms Everaardt that he had been told by “higher up
management” not to roster her, but to terminate her employment. The reason Mr Birks gave for
the termination was that Ms Everaardt had received a “not to roster”, or “NTR”, from
“Balaclava & Raintrees pubs” on 28 June 2024.
[4] Ms Everaardt became upset. Mr Birks asked her what he could do to help, such as
providing a reference or a separation certificate. Ms Everaardt asked for a separation certificate.
Mr Birks said that he would provide one on Monday, 23 September 2024.
[5] Despite following Mr Birks up, Ms Everaardt did not receive a separation certificate.
[6] On 30 September 2024, Ms Everaardt filed an unfair dismissal application with the Fair
Work Commission.1
Procedural history
[7] On 19 November 2024, Commissioner Durham made directions in these proceedings.
In short, they required Ms Everaardt to file and serve her evidence and submissions by
3 December 2024; for Absolute QSEC to file and serve its evidence and submissions by
[2025] FWC 277
DECISION
AUSTRALIA FairWork Commission
[2025] FWC 277
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17 December 2024; and for Ms Everaardt to file and serve any material in reply by
24 December 2024.
[8] The matter was reallocated to me. I determined to list the matter for mention on
28 November 2024 to make arrangements for the hearing. I arranged for an email attaching a
notice of listing to be sent to the parties, at the addresses that had been provided to the
Commission, on 20 November 2024.
[9] On 22 November 2024, my Chambers received an email from the “Human Resources
Department” of “QSEC Security”. The email stated: “I understand that your chambers is
seeking Absolute QSEC Pty Ltd contact details.” The email proceeded to give the name “Jack
Burges” and an email address for him.
[10] On the same day I arranged for an email to be sent to Mr Burges at the address that had
been provided. The email informed Mr Burges of the mention on 28 November 2024.
Attached to the email was a copy of the notice of listing for that mention and a copy of the
directions made by Commissioner Durham on 19 November 2024.
[11] The Commission did not receive a response to that email.
[12] I conducted the mention on 28 November 2024. Absolute QSEC did not appear. I made
the following directions:
“1. The directions made by Commissioner Durham on 19 November 2024
(‘Earlier Directions’) are confirmed.
2. If the Respondent does not file its evidence and submissions in accordance with
the Earlier Directions (that is, by 4.00pm on 17 December 2024), and it has not before
that time sought and obtained a variation to the Earlier Directions, the Commission will
proceed to determine the matter ‘on the papers’.
3. If the Respondent files its material in compliance with the Earlier Directions, the
matter will be listed for a directions hearing for the purposes of confirming the
arrangements and date for the hearing of the matter.”
[13] My Chambers sent a copy of the directions to the parties, including Mr Burges, by way
of email on the same day.
[14] Ms Everaardt filed her material on 2 December 2024. Her email to Chambers attaching
her material was copied to the email address that the Commission was given for Mr Burges.
[15] The Commission received no evidence or submissions from Absolute QSEC.
The Commission has made considerable efforts to ensure that these proceedings were brought
to the attention of Absolute QSEC. There has been a total failure by the company to engage
with these proceedings. I am satisfied that it was afforded a fair and reasonable opportunity to
present its case.
[2025] FWC 277
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[16] As Absolute QSEC has not contested any of the facts in Ms Everaardt’s material, the
matter does not involve “facts the existence of which is in dispute”.2 As a consequence, I
consider that there is no requirement that I conduct a conference or hold a hearing. I will
determine the matter on the papers.
The questions I need to answer
[17] Ms Everaardt was employed on a casual basis. However, she provided the Commission
with copies of the payslips that she received from Absolute QSEC. They reveal that she was
employed on a regular and systematic basis. I am satisfied that she was a regular casual
employee.3 I am also satisfied on all of the evidence that Ms Everaardt had a reasonable
expectation of continuing employment by Absolute QSEC on the same basis. It follows that
she had completed the minimum employment period with Absolute QSEC.4 Her annual rate of
earnings was less than the high income threshold. I find that Ms Everaardt was, therefore, a
person protected from unfair dismissal.5
[18] The question is whether Absolute QSEC unfairly dismissed her. To find that to have
been the case, I need to be satisfied of four things: Ms Everaardt was dismissed; the dismissal
was harsh, unjust or unreasonable; the dismissal was not consistent with the Small Business
Fair Dismissal Code (“Code”); and the dismissal was not a case of genuine redundancy.6
[19] On the information available to me, I am satisfied that Absolute QSEC dismissed
Ms Everaardt on 21 September 2024.7 There is nothing before me to suggest that Absolute
QSEC was a small business employer8 at the time of the dismissal. The Code is therefore of no
relevance. There is equally no suggestion that the dismissal was a case of genuine redundancy.
[20] So, the questions I need to answer are:
A. Was the dismissal harsh, unjust or unreasonable?
B. If so, should I order a remedy for unfair dismissal?
[21] I have decided that the dismissal was harsh, unjust and unreasonable, and that it is
appropriate that I order Absolute QSEC to make a payment of compensation to Ms Everaardt.
I set out my reasons below.
Why I have found the dismissal to be unfair
[22] In determining whether the dismissal was harsh, unjust or unreasonable, I am required
to have regard to certain criteria.9 The extent to which I am required to consider those criteria
depends on the extent to which they are relevant to the case.10 Not all of them are relevant to
this case.11 I will address the relevant criteria in turn.
Whether there was a valid reason for the dismissal12
[23] In order to be a valid reason, the reason for the dismissal should be sound, defensible or
well founded. It should not be capricious, fanciful, spiteful or prejudiced.13
[2025] FWC 277
4
[24] The reason for dismissal given by Absolute QSEC was Ms Everaardt receiving a “not
to roster” from “Balaclava & Raintrees pubs” on 28 June 2024. I take this to be a request from
a client of Absolute QSEC not to roster her to perform security work at its premises. I do not
know the circumstances in which the NTR came to be issued.
[25] Ms Everaardt stated that she was never told the basis of the complaint from Balaclava
& Raintrees that led to the NTR. She stated that Absolute QSEC did not give her an opportunity
to defend herself against that complaint.
[26] Ms Everaardt also relied on the fact that the NTR was the only occasion on which her
conduct or performance was called into question. She stated that she had never had any
problems prior to that event and that she had been working in other venues for three months
since the NTR without incident.
[27] Ms Everaardt stated that she is aware of at least three other guards who have received
NTRs who remain employed by Absolute QSEC.
[28] The fact that an employee receives an NTR cannot of itself be seen as warranting
termination of employment. This is evidenced by the fact that Absolute QSEC continues to
employ other guards who have received NTRs, and continued to roster Ms Everaardt for duty
for three months after she received one. The fact that Ms Everaardt was so rostered for duty
also calls into question the objective seriousness of the basis for the NTR, and whether it could
provide a basis for her dismissal three months later.
[29] On the evidence, I find that there was no valid reason for the dismissal.
Whether Ms Everaardt was notified of the reason for dismissal and given an opportunity to
respond14
[30] This criterion requires me to consider whether Ms Everaardt was notified of the reason
for her dismissal before Absolute QSEC made the decision to terminate.15 Being “notified”
requires Absolute QSEC to have explicitly put the reason to Ms Everaardt in plain and clear
terms.16 The requirement that Ms Everaardt be given an opportunity to respond requires
Absolute QSEC to have given her a real opportunity to respond to the reason for dismissal.17
[31] It is clear that none of those things happened. On 21 September 2024 Mr Birks told
Ms Everaardt that her employment was terminated due to the NTR issued on 28 June 2024.
Ms Everaardt was not notified of that reason prior to the dismissal being effected. She was
consequently not provided with an opportunity to respond to that reason or to show cause as to
why her employment ought not be terminated. The reason given to her was not, in any event, a
valid one.
If the dismissal related to Ms Everaardt’s unsatisfactory performance – whether she had been
warned about that unsatisfactory performance before the dismissal18
[32] I will deal with this criterion for completeness. I have no way of knowing whether
Absolute QSEC regarded the NTR received by Ms Everaardt as amounting to “unsatisfactory
performance”. Suffice it to say, even were that the case, there is no evidence of Ms Everaardt
receiving a warning prior to her dismissal.
[2025] FWC 277
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The degree to which the size of Absolute QSEC’s enterprise, or the absence of dedicated
human resource management specialists or expertise at Absolute QSEC, would be likely to
impact on the procedures followed in effecting the dismissal19
[33] There is nothing to suggest that the procedure Absolute QSEC followed to effect the
dismissal was in any way impacted by the size of its enterprise or its lack of dedicated human
resource management specialists or expertise.
Any other matters that I consider relevant20
[34] I have had regard to the fact that, having offered Ms Everaardt assistance in the form of
providing her with a separation certificate, Mr Birks did not do so.
Conclusion – the dismissal was unfair
[35] Based on the matters set out above, the inescapable conclusion is that the dismissal was
substantively and procedurally deficient. It was consequently harsh, unjust and unreasonable.
Accordingly, I find that the dismissal was unfair.
Remedy – compensation
[36] Ms Everaardt was a person protected from unfair dismissal. She made an unfair
dismissal application. I have found that the dismissal was unfair. It follows that I have the
discretion to order Ms Everaardt’s reinstatement, or to order that Absolute QSEC pay her
compensation.21
[37] Ms Everaardt did not seek reinstatement. In all of the circumstances, I am satisfied that
an order for reinstatement would be inappropriate.
[38] However, I am satisfied that it is appropriate for me to order that Absolute QSEC make
a payment of compensation to Ms Everaardt. In deciding the amount of compensation to be
paid to Ms Everaardt, I am required to have regard to all the circumstances of the case, but
seven factors in particular.22 The Commission has developed a methodology for assessing
compensation, which provides guidance as to the order in which those and other factors might
be applied.23 I have had regard to that authority.
[39] There is no evidence that Ms Everaardt’s employment was in jeopardy prior to her
dismissal. Had she not been unfairly dismissed she would have continued to receive
remuneration at the rate of $1,555.56 gross per week indefinitely, although I am mindful of her
casual status.24
[40] As at 2 December 2024, Ms Everaardt had not earned any income since her dismissal.25
She stated that she had not started looking for another job due to the impact the dismissal had
on her mental health. As a result, there is no evidence of the income that Ms Everaardt is
reasonably likely to earn between the period of making an order for compensation and the actual
compensation.26
[2025] FWC 277
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[41] Ms Everaardt did not lead any evidence as to her mental health. This makes it difficult
to positively conclude that she was unable to seek new employment (although the contention is
not in dispute). Even so, I have some doubts as to whether Ms Everaardt can be said to have
made efforts to mitigate her loss.27 This calls for a reduction in the amount of compensation
that should be paid.
[42] Ms Everaardt’s length of service with Absolute QSEC was relatively short, being just
over one year.28 This also calls for a reduction in the amount of compensation that should be
paid.
[43] There is nothing before me to suggest that any order for compensation would adversely
affect the viability of Absolute QSEC’s business.29 In any event, given the quantum of the order
I propose to make, I do not consider that it will have that result.
[44] On other matters,30 I have determined compensation as a gross amount. It will be for
Ms Everaardt to pay any amount of taxation required by law.
Conclusion regarding compensation
[45] I am required to ensure that the level of compensation is appropriate having regard to
all the circumstances of the case.31 For the reasons set out above, I am satisfied that a remedy
of compensation equal to 6 weeks’ pay, totalling $9,333.36, in favour of Ms Everaardt, along
with a payment of superannuation, is appropriate in all the circumstances of this case.
[46] That amount contains no component for any shock, distress, humiliation or other
analogous hurt suffered by Ms Everaardt as a result of the manner of her dismissal.32 It is below
the compensation cap.33 The quantum does not justify the compensation being paid in
instalments.34
Conclusion
[47] In light of the above, I will make an order that Absolute QSEC pay Ms Everaardt
$9,333.36, less taxation as required by law, plus make an 11.5% superannuation contribution
on that amount into her nominated superannuation account. The order will require payment to
be made by 3 March 2025
[48] The order is published contemporaneously with this decision in PR783864.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
ASSION WORK COMMISSION THE SEAD OF THE
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr783864.pdf
[2025] FWC 277
7
PR783863
1 The application was brought under Part 3-2 of the of the Fair Work Act 2009. Unless otherwise stated, all references to
legislative provisions in this decision are to provisions of that Act.
2 Section 397
3 As defined in s 12
4 Section 383
5 Section 382
6 Section 385
7 Section 386(1)(a)
8 Within the meaning of s 23
9 Section 387
10 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]
11 Those referred to in s 387(d)
12 Section 387(a)
13 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373
14 Section 387(b) and (c)
15 Sydney Trains v Trevor Cahill [2021] FWCFB 1137 at [60]
16 Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19] and Sydney Trains v Trevor Cahill [2021] FWCFB
1137at [60]
17 Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at 7; Mark Bartlett v Ingleburn Bus Services Pty Ltd T/A Interline Bus Services
[2020] FWCFB 6429 at [19(3)]
18 Section 387(e)
19 Section 387(f) and (g)
20 Section 387(h)
21 Section 390(1) and (2)
22 Section 392(2)
23 Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge (2013) 229 IR 6; [2013] FWCFB
431, in which the Full Bench took into account authorities under corresponding provisions of the Workplace Relations
Act 1996 in Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21 and Ellawala v Australian Postal
Corporation Print S5109 (AIRCFB Ross VP, Williams SDP, Gay C, 17 April 2000)
24 Section 392(2)(c); see Ellawala v Australian Postal Corporation Print S5109 (AIRCFB Ross VP, Williams SDP, Gay C,
17 April 2000) at [34]
25 Section 392(2)(e)
26 Section 392(2)(f)
27 Section 392(2)(d)
28 Section 392(2)(b)
29 Section 392(2)(a)
30 Section 392(2)(g)
31 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206 at [17]
32 Section 392(4)
33 Section 392(5)
34 Section 393
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb7498.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb1137.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb6429.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb1137.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb1137.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb6429.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb431.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb431.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb7206.htm
