Mr Justin Stanley Mullins v KAB SEATING PTY. LTD. - [2025] FWC 371

1 

 

Fair Work Act 2009  

s.394 - Application for unfair dismissal remedy 

Mr Justin Stanley Mullins 

v 

KAB SEATING PTY. LTD. 
(U2024/5037) 

COMMISSIONER DURHAM BRISBANE, 11 FEBRUARY 2025 

Application for an unfair dismissal remedy   – no valid reason – dismissal unfair – 
application granted – reinstatement not appropriate – compensation awarded. 

 

[1] On 19 March 2024, Mr Justin Mullins, a Company Accountant for KAB SEATING 

PTY. LTD (KAB) received a letter seeking his response to a range of performance and conduct 

allegations.  He was immediately suspended on full pay.  

 

[2] On 12 April 2024, KAB dismissed Mr Mullins without notice, stating that his responses 

to the allegations were unsatisfactory and unreasonable, and that his unsatisfactory conduct and 

performance amounted to serious misconduct and/or gross negligence. 

 

[3]  Mr Mullins believes that his dismissal was unfair and contends that none of the 

allegations amounted to serious misconduct, nor gross negligence and that his conduct and 

performance had always been to a reasonable standard.  Mr Mullins believes that he had done 

all things reasonably possible to address KAB’s concerns, including providing responses to all 

allegations and offering to work with KAB to address any perceived performance issues. 

 

[4] For the reasons outlined below, I have not been convinced that KAB had a valid reason 

to dismiss Mr Mullins. I find that Mr Mullins’ dismissal was harsh, unjust and unreasonable. It 

was therefore unfair.   

 

Procedural Background 

 

[5] Following an unsuccessful conciliation conference on 5 June 2024 and a directions 

hearing on 12 June 2024, the matter proceeded to hearing on 15 and 16 August 2024. At the 

hearing, Mr Mullins was represented by Mr Philip Diaz of counsel and KAB was represented 

by Mr James Ford of counsel. 

 

[6] Both parties filed written submissions and witness statements. Mr Mullins gave 

evidence in support of his application. 

 

[2025] FWC 371 

DECISION 


AUSTRALIA FairWork Commission




 



[2025] FWC 371 

 

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[7] Mr Bill Fraser (Managing Director of KAB), Rachel Sutton (Partner of Mills Oakley), 

Mr Ben Gao (Accounts Manager of KAB), Ms Olivia Gregory (HR Manager of KAB), and Mr 

Ashley Sant (National Operations Manager of KAB) were called to provide evidence on behalf 

of KAB. 

 

BACKGROUND AND TIMELINE LEADING TO THE DISMISSAL 

 

Mr Mullins 

 

[8] At the time of his dismissal, Mr Mullins was 61 years of age. He is a qualified accountant 

who has specialised in manufacturing accounting for several decades. 

 

KAB 

 

[9] KAB Seating Pty Ltd is an Australian trading company owned by Commercial Vehicle 

Group Inc. (CVG), a NASDAQ listed company based in Ohio, USA. KAB specialise in 

ergonomic seating and the distribution of suspension seating for commercial vehicles. 

 

Mr Mullins’ role and his employment with KAB 

 

[10] Mr Mullins commenced employment with KAB on 29 August 2022 in the position of 

Company Accountant, he describes his role as being the lead accountant in a small in-house 

manufacturing accounting team and for the Australian subsidiary of CVG.  Mr Mullins was 

employed pursuant to a contract of employment which confirmed his total base salary as 

$115,500 per annum.  

 

[11] KAB noted that his role was a “senior position” within the company.1 Mr Mullins 

reported directly to Mr Fraser.  Mr Gao, who was at the time the Assistant Accountant, reported 

to Mr Mullins.  The material of both parties refers to Mr Mullins’ “team” however it is not clear 

how many employees, other than Mr Gao, reported to Mr Mullins.2 

 

Implementation of D365 

 

[12] Prior to August 2022, KAB had used the AX4 accounting system. In August 2022, 

around the same time as Mr Mullins joined KAB, a new finance and operating system, D365 

was implemented by CVG and subsequently by KAB. Mr Fraser submitted that Mr Avery Qiao, 

Enterprise Resource Planner for CVG oversaw the implementation of the new system.3 As will 

be considered further in this decision, I understand this work to have involve transitioning 

KAB’s accounts from the old system to the new system, work which could reasonably create 

the potential for accounts to be wrongly allocated in the transition. Mr Mullins refers to such 

potential errors as “mapping issues”. KAB, and Mr Fraser, whom Mr Mullins notes is not an 

accountant, referred to this possibility as “allocation issues”.  

 

Show cause letter dated 19 March 2024 

 

[13] On 19 March 2024, Mr Mullins was handed a show cause letter signed by Ms Gregory.  

The letter noted Mr Mullins’ suspension and outlined “various concerns we have in respect to 








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your conduct and performance at work”.4 Under the heading “Specific Allegations” the letter 

outlined 16 allegations, grouped under the headings:5 

 

• Attendance at work.  

• Inappropriate Comments during Re-Induction. 

• Concerns in respect your role. and 

• Management of employees. 

 

[14] Under the heading “Consideration of Termination of Employment” KAB noted, “the 

above examples of conduct and performance is indicative of the significant lack of care and 

attention you are paying to your role and is inconsistent with the continuation of the contract of 

employment and your senior role as Company Accountant”.6 KAB further advised that they 

considered Mr Mullins conduct was in breach of the written and implied terms of his contract 

of employment. 

 

[15] Mr Mullins was asked to provide his response to the allegations and to show cause as to 

why a disciplinary penalty should not be imposed by 22 March 2024, three days later. 

 

[16] The letter further stated, “Given the nature of these allegations, we feel it is fair to 

indicate to you at this stage that a likely disciplinary penalty is termination of your 

employment”.7  

 

Mr Mullins’ first response 

 

[17] On 22 March 2024, Mr Mullins responded to the allegations through his legal 

representative. Mr Mullins’ response provided clarity by categorising the 16 allegations under 

the following headings:   

 

• Allegation 1 – Duration of lunchbreak 

• Allegation 2 – Distraction 

• Allegation 3 – Inappropriate Comments 

• Allegation 4 – Workplace Performance 

o January 2024 Profits 

o Account Department Procedures 

o KPMG Audit 

o Purchasing Officer – Activities for AR Employee 

o E&O write off 

o Delayed Responses 

o Concerns raised by Mr Mullins 

o Freight Surcharge 

o D365 Mapping 

o Finalising 2022 Accounts 

o Clerical Error – AX4 and D365 

o Costing Issue 

o Management of Employees 

 

 








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[18] Mr Mullins provided a response to each of the allegations, or otherwise requested further 

information to enable him to provide a proper response. In summary, Mr Mullins argued that 

many of the allegations did not meet the threshold of unsatisfactory performance or were 

denied. In response to many of the allegations, Mr Mullins provided that where appropriate, he 

was agreeable to working with KAB to reduce occurrences of situations which have given rise 

to concerns. 

 

Further allegations letter dated 5 April 2024 

 

[19] On 5 April 2024 Mr Mullins received a further letter from KAB. Whilst noting that Mr 

Mullins had sought further information with respect to Allegation 4, the requested information 

was not provided. Rather, the letter provided further “areas of enquiry”. Essentially, the letter 

contained further allegations relating to the KPMG Audit, E&O write off, and delayed 

responses. 

 

[20] The letter did not indicate whether KAB were satisfied with any of the responses 

provided so far, nor did it provide any response to the suggested way forward proposed by Mr 

Mullins. Mr Mullins was reminded that he remained stood down with pay and was required to 

reply to these additional matters by 8 April 2024, three days later. KAB noted that Mr Mullins’ 

performance may constitute gross negligence and/or serious misconduct. 

 

Mr Mullins’ further response dated 10 April 2024 

 

[21] On 10 April 2024, Mr Mullins provided a further response to KAB. The response 

addressed the additional allegations and noted that KAB had failed to provide the further 

information and particulars that had been requested for several allegations and that where 

further particulars had been provided, they were by way of references to email correspondence 

that Mr Mullins did not have access to. 

 

[22] Mr Mullins asserted that in the absence of this information, he had not been given a 

proper opportunity to respond to the allegations made against him. Mr Mullins advised that as 

such, any decision to terminate his employment based on these allegations would be unjust 

and/or unreasonable, as well as harsh and in contravention of s 387(c) of the Act.  

 

Termination letter dated 12 April 2024 

 

[23] On 12 April 2024, KAB summarily dismissed Mr Mullins for serious misconduct and/or 

gross negligence, following an investigation regarding his conduct, performance and failure to 

follow policies and procedures as the Accountant for KAB.8 

 

[24] KAB concluded they had found Mr Mullins’ explanations unsatisfactory and 

unreasonable given the nature of his role and noted the financial consequences resulting from 

Mr Mullins providing incorrect material to KPMG and Findex. 

 

Mr Mullins’ post-termination response 

 

[25] On 26 April 2024 Mr Mullins provided a response to the termination letter which 

reiterated his disagreements with the allegations put forward in the show cause letter, arguing 








[2025] FWC 371 

 

5 

that he does not believe the allegations, even if proven, constitute serious misconduct and/or 

gross negligence and foreshadowed his intention to lodge an unfair dismissal application.  

 

WAS MR MULLINS UNFAIRLY DISMISSED? 

 

[26] There is no dispute, and I am satisfied that Mr Mullins was protected from unfair 

dismissal at the time he was dismissed.9  

 

[27] The criteria that I must consider when deciding whether Mr Mullins’ dismissal was 

harsh, unjust, or unreasonable are set out at s.387 of the Fair Work Act 2009 (the Act). My 

consideration of relevant criteria follows below.  

 

Did KAB have a valid reason to dismiss Mr Mullins?  

 

[28] It is well established that the factual basis for the reason for dismissal will not of itself 

demonstrate the existence of a valid reason.10 It must, as s.387(a) makes clear, be a valid reason 

for dismissal. To be a valid reason, the reason for the dismissal should be “sound, defensible or 

well  founded”11 and  should  not  be “capricious,  fanciful,  spiteful  or  prejudiced.”12 As 

summarised by then Deputy President Asbury in Smith v Bank of Queensland Ltd, a “dismissal 

must be a justifiable response to the relevant conduct or issue of capacity”.13 The Commission 

must consider the entire factual matrix in determining whether an employee’s termination was 

for a valid reason.14 

 

Submissions of Mr Mullins 

 

[29] Mr Mullins submits that there was no valid reason for his dismissal related to either his 

capacity or conduct.  He submits that the allegations levelled against him were denied or did 

not meet the threshold of unsatisfactory performance, professional misconduct or gross/serious 

negligence, rather Mr Mullins believes that many of the issues raised by KAB are reflective of 

poor communication practices within KAB and/or conflicting instructions.  

 

[30] Mr Mullins submits that, based on the nature of the allegations provided by KAB as the 

reason for his dismissal, he was dismissed as a result of performance issues regarding the 

timeliness, accuracy and quality of his work as well as his communication with others in the 

workplace, rather than serious misconduct or gross negligence.15 

 

[31] Additionally, in closing submissions, Mr Mullins argued that KAB, and in particular Mr 

Fraser, held strong views against him and were resolved to dismiss him. It was submitted that 

KAB set out to find anything they could to justify their actions, and in the process, dredged up 

old matters that had been put to bed months earlier, and pulled together a range of other minor 

issues that could and should have been addressed at the time “in the hopes that something would 

stick”.  

 

[32] Otherwise, it was submitted that the allegations made against him were either trivial or 

misconceived. Mr Mullins denies many of these allegations and additionally argues that these 

allegations have not been supported by evidence to such an extent that they would form a valid 

reason for dismissal.  

 








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Submissions of KAB 

 

[33] KAB submits that there is a valid reason for Mr Mullins’ dismissal because he had 

engaged in serious misconduct in his role as Company Accountant,16 and that Mr Mullins’ 

“dishonest behavior” was inconsistent with its business.17  

 

[34] KAB assert that Mr Mullins’ actions, in the context of his employment contract, 

constitute as “misconduct” and/or gross negligence such as to warrant summary dismissal.  

 

[35] KAB note that Mr Mullins’ 11-month delay in preparing financial statements for the 

KPMG 2022 calendar year audit and his actions on this issue were key to Mr Fraser’s loss of 

trust in him. KAB emphasized in its oral submissions that trust was an important part of the 

working relationship between Mr Fraser and Mr Mullins and contended that Mr Mullins’ 

dishonesty was the main reason why he was dismissed.  

 

[36]  In summary, KAB contend that Mr Mullins was not doing the work required by his role 

as Company Accountant, failed to comply with lawful and reasonable directions, and 

incorrectly blamed issues and others for his non-performance.  

 

[37] With respect to other potential reasons for Mr Mullins’ dismissal and the allegations 

made against him, KAB submitted that while not as significant, these other reasons are still 

important. 

 

Consideration 

 

Observations about the form of the Allegations 

 

[38] Mr Diaz described many of the allegations levelled at Mr Mullins as trivial or 

completely misconceived. He also noted that many were expressed in ways which were 

misleading as to what the issue really was.   

 

[39] I agree with Mr Diaz with respect to the way the allegations were expressed. The first 

show clause letter, received by Mr Mullins on 19 March 2024 contained what could best be 

described as a stream of consciousness from the writer. Whilst grouped under the heading 

“Specific Allegations”, the allegations were anything but specific. The show cause letter 

included 16 dot points, which variously included statements about interactions with, or 

observations, of Mr Mullins and his performance, rather than what would reasonably be 

considered “specific allegations”. 

 

[40] It was Mr Mullins’ 22 March 2024 response that distilled these statements into a format 

that was capable of being responded to in a meaningful way. KAB’s 5 April 2024 letter then 

outlined further allegations. Again, these new allegations were not well particularized and 

varied between being responses to Mr Mullins’ 22 March 2024 letter and additional allegations. 

As noted by Mr Mullin’s in his 10 April 2024 response, this letter also included transcribed 

extracts of email exchanges between Mr Mullins and other employees and referenced the 

existence of other emails that Mr Mullins did not have access to.    

 

Serious Misconduct 








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[41] Serious misconduct involves an employee deliberately behaving in a way that is 

inconsistent with continuing their employment, to the extent that it would be seen to repudiate 

their employment contract.18 Essentially serious misconduct confers the notion of wilful or 

deliberate behaviour which strikes at the heart of the employment relationship.19   

 

[42] The Fair Work Regulation 2009 at clause 1.07 defines serious misconduct as conduct 

that causes serious and imminent risk to the health and safety of a person or to the reputation, 

viability or profitability of the employer's business. Serious misconduct is defined as including 

conduct such as theft, fraud, assault, sexual harassment, intoxication at work and the refusal to 

carry out lawful and reasonable instructions consistent with the employment contract.  

 

[43] The standard of gross and serious misconduct is based on the balance of probabilities, 

noting the principles in Briginshaw v Briginshaw:20  

 

“The standard of proof remains the balance of probabilities but ‘the nature of the issue  

necessarily affects the process by which reasonable satisfaction is attained’21 and such  

satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect 

inferences’ or ‘by slender and exiguous proofs or circumstances pointing with a 

wavering finger to an affirmative conclusion.”22 

 

[44] I have had regard to these principles when considering the facts and circumstances of 

this matter. 

 

What reason did KAB give for the dismissal?  

 

[45] As noted, the termination letter provided that Mr Mullins’ dismissal was due to serious 

misconduct and/or gross negligence, however the letter goes on to reference some, but not all, 

of the conduct and performance matters raised throughout the disciplinary process.  

 

[46] As Mr Mullins did not receive any response to his show cause responses, or 

acknowledgment if his suggestions for resolving KAB’s concerns about his performance or 

conduct, it is difficult to know precisely which allegations were substantiated and which were 

not, and consequently, which were relied on by KAB, and which were not.  

 

[47] Adding to the confusion, during oral evidence and closing submissions KAB confirmed 

that none of the allegations had been abandoned. Consequently, to ensure the full factual matrix 

is considered, I have explored, to varying degrees, most of the allegations that were put to Mr 

Mullins’ throughout the disciplinary process, noting that whilst KAB seeks to rely on all of the 

allegations, many received little or no attention in their submissions and evidence and that some 

of the allegations appear to have been subsumed into broader categories of conduct by KAB. 

As such, to the extent some allegations may not be specifically addressed below, all submissions 

have been considered.  

 

Duration of Lunchbreaks (Allegation 1) 

 

[48] Mr Mullins submitted that his 45 minute – 1 hour lunch breaks were consistent with his 

employment agreement and had always been recorded on his timesheet. Further, he argued that 








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KAB had been aware that he had been arriving at work early and taking a longer lunch break 

since he had begun his employment, yet at no time was this raised as being an issue.  

 

[49] In his first response, Mr Mullins sought clarification of KAB’s expectations regarding 

lunch breaks so that he could ensure he complied with any requirements he had not been aware 

of. Mr Mullins did not receive a response to the request or an acknowledgment of his 

willingness to ensure he complied with KAB’s requirements moving forward.  

 

[50] In any case, had there been any substance to this issue, it should have been addressed 

with Mr Mullins informally or in accordance with KAB’s Performance Management Policy —

it was not. I do not consider this allegation to be serious misconduct, nor was it demonstrative 

of any failings in Mr Mullins’ capacity or performance.  

 

Distraction (Allegation 2) 

 

[51] The substance and focus of this allegation shifted during the disciplinary process and 

submissions.  Initially, it was alleged that Mr Mullins was regularly distracted at work, more 

often than not walking around in the warehouse talking to the staff in non-work-related 

conversation.  

 

[52] In his initial response, Mr Mullins took this to relate to an issue that had been raised 

with him earlier in the year, when Ms Lauren Luke (KAB’s HR Department) had spoken to him 

about the time he was spending in the warehouse. Mr Mullins asserts that Ms Luke indicated 

that he “was not in trouble” and that they just wanted to understand why it was happening. Mr 

Mullins says that he had explained to Ms Luke that he had been leaving his desk at certain 

points because he was suffering bronchitis and was regularly having coughing fits.23 Mr Mullins 

states the only reason he attended the warehouse was because it was often largely unoccupied, 

and thus suitable for his recovery. It is reasonable to presume that had Mr Mullins’ explanation 

not been satisfactory, KAB would have dealt with this at the time — they did not.  

 

[53] I also note that in addition to providing the above explanation to KAB, Mr Mullins, in 

his first response noted his willingness to stay at his desk should he need to cough, should that 

be KAB’s preference, and also invited KAB to provide any further suggestions or requests 

regarding this allegation in writing. KAB did not acknowledge his suggestion or provide him 

with the information he had requested.   

 

[54] During cross examination, KAB questioned Mr Mullins about the amount of time he 

spent in the warehouse more generally. Much was made of Mr Mullins holding daily meetings 

with warehouse employees, yet no evidence was led to back up the original allegation that Mr 

Mullins was “more often than not walking around the warehouse talking to staff and/or the 

CRS’s with non-work related conversations”. It is clear that Mr Mullins felt this was a 

significant part of his role, such that he had included it in his April 2023 review, noting “daily 

informal discussions with warehouse staff” as one of his actions relating to Priority 5 – “Active 

participation in work place safety and morale”. 

 

[55] In closing submissions Mr Diaz referred to this allegation, particularly the coughing 

incident, as “trivial” noting if there was any substance to it, it would have been addressed in 

January, when it occurred.  Mr Diaz also noted, and I accept, that this allegation did not receive 








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much attention in KAB’s witness statements or submissions, and that Ms Luke was not called 

to give evidence. This allegation does not meet the test of misconduct. At best it was a 

performance issue that had been discussed and resolved in January 2024. 

 

Inappropriate Comments (Allegation 3) 

 

[56] It was alleged that during a re-induction in November 2023, Mr Mullins made an 

inappropriate comment. In responding to this allegation, Mr Mullins stated that he had simply 

been seeking clarification as to what was expected of employees if they were subject to 

allegations of inappropriate workplace behaviour. Mr Mullins’ further noted that this matter 

had been raised with him at the time and resolved.  

 

[57] During cross examination, Ms Gregory confirmed that the matter had been dealt with at 

the time and that it had been determined that no further action was required. Ms Gregory was 

then taken to the show cause letter. Ms Gregory confirmed that she had written the letter with 

Mr Fraser. She was then asked why, if this matter had been resolved, and it had not been deemed 

necessary to take further action at the time, some five months later, when Mr Mullins was facing 

possible termination of his employment, was it raised again. Ms Gregory’s response indicated 

her understanding that it would “make up one of many altercations”. Ms Gregory agreed with 

Mr Diaz, that if this allegation had been of concern at the time, further action should have been 

taken some time in the preceding five (5) months.  

 

[58] I note that as a part of his response, Mr Mullins provided that in future, rather than 

making such inquiries during meetings, he would instead request a one-on-one meeting with 

KAB’s HR to avoid further concerns, or act in another way as KAB suggests. Again, KAB did 

not acknowledge or otherwise comment on Mr Mullins’ response or suggested way forward.  

 

[59] This allegation was contained in the letter of termination and as such it was relied upon 

by KAB as a reason for Mr Mullins’ dismissal, however it did not receive a great deal of 

attention in KAB’s written, or oral submissions and Mr Mullins was not cross examined on his 

response to this allegation.   

 

[60] I accept Mr Mullins’ submission and consider it reasonable for him to have presumed 

that the explanation he provided at the time had been accepted and that the issue had been 

resolved. I therefore find this allegation to be without merit. 

 

Workplace Performance (Allegation 4) 

 

January 2024 Profits  

 

[61] It was alleged that Mr Mullins reported the accounts of January 2024 to Mr Fraser 

wrongly, stating there had been no profit made when there was $80,000 in profits. Mr Mullins 

provided a response to this allegation in his 22 March 2024 letter, wherein he advised that whilst 

he wished to respond to this allegation; to do so he would require additional information.  

Noting he no longer had access to workplace systems, Mr Mullins sought that he be provided 

with copies of the alleged report showing no profit in January 2024, and financial records 

showing the alleged $80,000 in profit for January 2024. Mr Mullins submitted it would be 








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unjust or unreasonable to dismiss him for this allegation without giving him a proper 

opportunity to respond. 

 

[62] KAB’s 5 April 2024 letter did not provide the additional information requested by Mr 

Mullins. Again, this allegation did not receive a great deal of attention in KAB’s submissions 

or witness statements, nor did they seek to cross examine Mr Mullins in this regard. 

 

[63] It was put to Mr Fraser during cross examination that as there had not been any evidence 

led before the Commission regarding this allegation, it had been abandoned. Mr Fraser 

disagreed, but did not seek to provide any further details of the allegation. In closing, Mr Ford 

acknowledged that this was one of a range of issues, of varying degrees and magnitude that the 

Commission need only consider, if not satisfied that the KPMG financial statements issue and 

the resulting loss of trust in the company accounts, and his ability to do his job are not enough 

of a valid reason to have terminated his employment. 

 

[64]  The alleged conduct does not constitute serious misconduct. KAB failed to provide Mr 

Mullins with the further particulars he requested and he was therefore not able to provide a 

meaningful response, nor did they lead sufficient evidence to allow me to form a view regarding 

this matter, in the context of a performance issue. Consequently, I find this allegation to be 

without merit.  

 

Accounts Department Procedures 

 

[65] This allegation was particularly vague and poorly framed. As I understand it, KAB 

allege that Mr Mullins had not appropriately followed instructions given by Ms Gregory to 

review the work instructions and procedures in the Accounts department.  

 

[66] During cross examination, Mr Mullins explained that when he had received the email 

from Ms Gregory, he forwarded it on to his staff asking that they attended to the request “when 

they had time to do so” and that Ms Gregory had been copied into this email. 

 

[67] Much was made during cross examination of the fact that Ms Gregory had followed up 

with Mr Mullins on 22 February 2024, and he had not responded. Mr Mullins disputed this. In 

closing, Mr Diaz noted that KAB have access to all company emails that would have been 

exchanged between Mr Mullins and Ms Gregory, yet failed to provide any to substantiate their 

version of events.  

 

[68] Further, it would not be unreasonable to presume that had Mr Mullins’ failure to respond 

to one email been so significant, Ms Gregory could simply have advised him of a deadline or 

spoken to him directly to seek a response — she did not, nor was this matter raised with Mr 

Mullins again until the disciplinary process was commenced.  

 

[69] Taking the above into consideration, this issue was at best demonstrative of poor 

communication on the part of KAB regarding their expectations and deadlines, rather than any 

conduct or capacity issues on Mr Mullins’ part. Whilst I accept that communication is a two-

way street, and that Mr Mullins had a part to play in this communication, I again note that this 

matter was not raised with Mr Mullins at the time, nor was it raised as a performance issue 

pursuant to KAB’s performance management process.  








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[70] This allegation cannot be characterised as serious misconduct, rather, this allegation 

relates to Mr Mullins’s performance. Having consider the above, I have not been convinced 

that it has merit, however for completeness, had I been convinced otherwise, I would have 

found that KAB had failed to raise their concerns in this regard with Mr Mullins either 

informally or in accordance with their performance management process.  

  

KPMG Audit and Associated Allegations 

 

[71] The letter of termination relied on Mr Mullins’ “conduct and performance in delaying 

finalisation of the company's accounts and audit activities as required”.24  This allegation took 

many forms throughout the disciplinary process but can be summarised as primarily relating to 

Mr Fraser’s concerns that Mr Mullins had not satisfactorily responded to the requests for 

information and action regarding the audit and, what he described as Mr Mullins’ dishonesty, 

in continuing to delay the finalisation of the audit by claiming there were mapping issues.  

 

[72] Mr Mullins asserts that he had complied with Mr Fraser’s instructions and otherwise 

appropriately conducted KAB’s assistance with the KPMG audit. Mr Mullins provides that he 

gave responses and updates to Mr Fraser’s email requests verbally, as per Mr Fraser’s requests. 

 

[73] Mr Diaz submitted that the cross examination of the witnesses clearly shows that in May 

2023, Mr Mullins had provided financial statements, with the assistance of Mr Gao, which he 

had manually prepared for KPMG to attempt to progress the financial year 2022 audit that 

KPMG was conducting. However, KPMG was not satisfied with material provided and, in Mr 

Diaz’s words, they wanted to satisfy themselves that the accounts, and D365 checked out, 

particularly with respect to the financial statements. KPMG also had a question regarding “one 

tax,” which Mr Mullins submits, he dealt with. Mr Mullins does not dispute that there were 

various delays, both on KPMG’s and KAB’s part. 

 

[74] Mr Mullins argues that his capacity to respond in a timelier way was limited by factors 

including Mr. Gao’s leave and stocktake, and similarly, KPMG had various capacity and 

availability limitations. 

 

[75] Mr Mullins states, and I accept, that by the end of November 2023, he was responsive 

to KPMG's correspondence and by late February 2024, Mr. Mullins had been able to arrange 

for CVG personnel, particularly Mr Qiao and Mr Andrew Bauer (Finance Temporary for CVG), 

under the guidance of Ms Angie O'Leary (Vice President Corporate Controller for CVG) to 

assist in reviewing the mapping between AX4 and D365 accounting programs that had been 

originally undertaken in late 2022 by Mr Mullins, Mr Gao and Mr Qiao. 

 

[76] Mr Mullins asserts that the decision to review the mapping between the old and new 

accounting systems was being conducted to ensure that there were no further issues, following 

an issue being raised by Findex in relation to KAB’s taxes, where an account had been 

incorrectly allocated during the transition from the old system to the new system. As I 

understand it, having found this error, Mr Mullins formed the view that he needed to be sure 

that there were no further issues resulting from the transition from the old accounting system to 

the new one before he finalised the account. In any event, CVG personnel, in agreeing to assist 

in the review, understood Mr Mullins’ concerns. And I have seen no evidence to suggest that 








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anyone raised any concerns with Mr Mullins’ approach until the second show cause letter was 

issued. I understand Mr Mullins to have been openly taking a cautious approach to ensure the 

accounts were correct before they were finalised.  

 

Were there mapping issues? 

 

[77] The second show cause letter sent on 5 April 2024 asserts that Mr Mullins was incorrect 

in delaying finalisation of the accounts as there were “no mapping issues” with the software or 

tax issues as suggested. I understand this view to be central to KAB’s claims of dishonesty and 

loss of trust.  

 

[78] Mr Diaz noted that during Mr Gao’s oral evidence, he had initially denied there were 

any mapping issues, however when questioned about an email he had sent about suspected 

mapping issues in a document from May 2023, he confirmed that his description of the mapping 

issue, and how it came about, appeared to be consistent with Mr Mullins’ evidence. Mr Diaz 

submitted that there is no dispute that Findex had found an error and that it then follows that 

this led Mr Mullins to seek to initiate a review of the AX4 and D365 mapping so that they could 

all be sure that there were no more issues before the accounts were finalised.  

 

[79] Mr Diaz submits, and I accept, that had there not been a mapping issue discovered, it 

would not make sense that Ms O'Leary would agree to have Mr Qiao and Mr Bauer invest 

considerable time ruling out the possibility of further mapping issues, nor would Ms O’Leary 

have allowed the KPMG audit to be delayed any further. 

 

[80] Mr Ford in his closing submissions referred to the mapping issues as excuses from Mr 

Mullins, based on Mr Fraser’s conversations with Mr O’Leary and Mr Gao. Further that the 

problems regarding mapping with AX4 and D365 were non-existent. I again note Mr Diaz’s 

point that if these issues were truly non-existent as framed by KAB, then it would not be rational 

for Ms O’Leary, Mr Qiao and Mr Bauer to expend further time ruling out the possibility of 

mapping issues.  

 

[81] To this point, much was made by KAB of their assertion that Mr Mullins had acted 

dishonestly, by alleging that there were mapping issues, with KAB holding great stock in the 

fact that when the review that Mr Mullins had arranged was completed, no issues were found.  

 

[82]  Having considered all of the facts and circumstances of this matter, I accept Mr Mullins’ 

explanation that, having been made aware of the potential for mapping issues through the 

Findex error, he wanted to be sure that there were no further issues before finalising the 

accounts,  a view he had shared with Ms O’Leary, whom had agreed to provide additional 

resources to ensure Mr Mullins could be satisfied as such.   

 

[83] Indeed, Mr Fraser and Mr Gao were also aware of this approach, having been copied 

into Mr Mullins’ 23 January 2024 email to Ms O’Leary which stated:25  

 
“We floated an idea about someone with good systems skills from CVG assisting KABAU with this. The 

idea is that this person goes back to when we implemented D365 and maps all of the AX accounts into 

the D365 accounts. This will enable us to check that we did get the mapping correct. If it isn’t, we then 

need to determine a course of action to correct it.  

 








[2025] FWC 371 

 

13 

Once this mapping is done it would be good for this person to then do our 2022 Financial Statements to 

ensure that all of our transactions are going into the correct accounts. We can then give this as back up to 

KPMG to get them to finish our accounts.  

 

My estimation is that the above may take an experienced System Accountant one week. If 

necessary they can come here which would save a lot of effort due to the difference in our time zones and 

the communications difficulties this creates.  

 

The lessons learnt in the above exercise can then be used in future D365 rollouts with other CVG plants.”  

(emphasis added) 

 

[84] On 25 January 2024, Ms O’Leary copied Mr Fraser and Mr Gao into her reply, which 

provided:26 

 
“We do have a resource in New Albany that will be able to sit with Avery and document process/ 

transaction flow for you (targeting mid-February) so that you have proper operating procedures to 

reference. In the meantime, Emma is going to look into some of your specific pain points below in case 

there is anything that can be resolved quickly during January close.  

 

Then collectively (target end of February), the consultant, Avery and Emma will schedule training time 

with you to ensure you understand how the system is designed to work and answer any remaining 

questions.  

 

Clarification to your point below regarding D365 rollouts – your D365 implementation was an upgrade 

from the prior AX system. It was set up to work just like your old version because it was done before the 

new functionality was designed. Other rollouts are full implementations of the new D365 global template 

with added functionality.” (emphasis added) 

 

[85] Interestingly, it was Mr Gao’s evidence that he was aware by January 2024 that there 

were no mapping issues. That both Mr Gao and Mr Fraser were copied into the email exchanged 

between Mr Mullins and Ms O'Leary, does then raise the question of why, if Mr Gao believed 

with certainty that there were no mapping issues, this was not communicated to Mr Mullins, 

particularly noting that Mr Gao was also aware that this was the reason Mr Mullins was delaying 

the finalisation of the KPMG audit.   

 

[86] Mr Ford attempted to address the above issue in his closing submissions, putting 

forward the view that, as the Company Accountant in charge of the department, Mr Mullins 

had repeatedly asserted a problem which no one else could identify yet told others to look for. 

This complaining from Mr Mullins, he says, subsequently had the effect on those around him 

to try assist him.  

 

[87] I acknowledge that this may be the case from those that worked under Mr Mullins, but 

this line of thinking would not likely extend to those that Mr Mullins reports to or are in 

higher/senior positions such as Mr Fraser or Ms O’Leary. These individuals appeared to have 

formed a view at some time between January and March 2024 that there were no mapping 

issues. Both individuals spoke with Mr Gao who was quite confident in his assessment that no 

such mapping issue existed. It would then reason that Mr Fraser or Ms O’Leary would have 

communicated this to Mr Mullins to redirect his efforts elsewhere to avoid delays. 

 

[88] During cross examination Mr Fraser was asked why he did not put his foot down and 

tell Mr Mullins there were no mapping issues. Mr Fraser stated that his response had been to 

“investigate the matter as he should.” It was subsequently put to Mr Fraser that therefore at the 








[2025] FWC 371 

 

14 

time no one could say with 100% confidence that there were no mapping issues. Mr Fraser 

disagreed with this proposition, highlighting an inconsistency in his evidence.  

 

[89] Mr Fraser in his statement notes that he spoke with Ms O’Leary and recommended that 

she speak with Mr Qiao and Mr Bauer to ascertain if there a was a problem with AX4 and D365 

as described by Mr Mullins.27 It appears clear from this that he was not 100% confident that 

there was no mapping issue as proposed by Mr Mullins. However, I do note when asked about 

his motivation regarding this, Mr Fraser said during his oral evidence that he asked Ms O’Leary 

to investigate not because he thought there was a mapping issue but because he wanted to 

confirm that Mr Mullins was lying.  

 

[90] Taking the above into account, and viewed objectively, whilst I accept that Mr Mullins, 

as Company Accountant was responsible for delivering the accounts required by KPMG to 

finalise the 2022 audit, I also accept that Mr Mullins took his responsibility to ensure their 

accuracy seriously. It is also curious that KAB have continued to press their argument that Mr 

Mullins was needlessly delaying the KPMG audit whilst also being able to have resolved the 

delay by simply directing Mr Mullins to cease troubling himself with the mapping issue.  

 

[91] Much was made by KAB of the email that Mr Fraser sent to several employees, 

including Mr Mullins, on 29 December 2023 which stated:28 

 

“Hello All,  

 

Please see below list to work on in my absence. Ash is in charge during my absence.  

 

• FINISH KPMG - JUSTIN  

• Get NEW PRICING DONE - JUSTIN  

• Purchasing transfer - Justin  

• List of actions for Rikita - Justin 

• New monthly ppt file - Justin / Ash / Liv/ Jason 

…”  

(note that the first two dot points in the original email were in red). 

 

[92] Whilst the capitalisation of the first two dot points above indicates that Mr Fraser viewed 

them as a priority, I have accepted Mr Mullins’ evidence that he was unwilling to complete the 

KPMG Audit until he was certain it was correct.  Viewed objectively, I consider that Mr Mullins 

was complying with Mr Fraser’s direction, and had enlisted others to assist him rule out any 

issues so that he could finalise the accounts. 

 

[93] I have not been convinced that Mr Mullins’ attempts to confirm there were no mapping 

issues amounts to dishonesty. I find that: 

 

• Mr Mullins took his responsibilities as head accountant seriously.  

• Mr Mullins held an honest concern that there may be mapping issues that could impact 

the accuracy of the accounts and sought to confirm their accuracy before providing them 

to KPMG. 








[2025] FWC 371 

 

15 

• On 23 January 2024, Mr Fraser and Mr Gao were copied into Mr Mullins’ email to Ms 

O’Leary, in which he raised his concerns and sought her assistance in providing a 

resource to check the mapping. Mr Fraser did not raise any concerns with this approach. 

• On 25 January 2024, Ms O’Leary confirmed that she would provide a resource to 

investigate Mr Mullins’ concerns.  

• Whilst Mr Gao and Mr Fraser were of the view that there were no mapping issues, I 

have not been convinced that they pressed this view with Mr Mullins. 

• At no stage did Mr Fraser direct Mr Mullins to finalise the accounts without completing 

the mapping. Rather than providing this instruction, Mr Fraser purposefully let Mr 

Mullins continue to wait for the mapping to be completed, with the intention of catching 

him in a lie. 

 

[94] With respect to the allegation that Mr Mullins had been unresponsive to Mr. Fraser's 

follow-ups regarding the KPMG audit, Mr Diaz drew my attention to various emails from 

November 2023 through to March 2024 in which Mr Mullins deals directly with the KPMG 

audit and refers to resolving his concerns about the mapping issue. Mr Fraser also accepted 

during cross examination that he and Mr Mullins had held verbal discussions regarding the 

KPMG audit during this time. Mr Diaz submits, and I accept, that the emails do not capture the 

full extent of the interactions between Mr Mullins and Mr Fraser.  

 

[95] I have not been convinced that Mr Mullins’ attempts to confirm there were no mapping 

issues amount to dishonesty, nor do I find that he deliberately delayed finalisation of the 

accounts. In fact, considering the above, it seems that it was Mr Frasers’ actions that needlessly 

delayed the finalisation of the accounts by knowingly allowing Mr Mullins to pursue his 

concerns, considering his view that this was not required.   

 

[96] I accept that Mr Mullins’ actions did not align with Mr Fraser’s expectations however, 

viewed objectively, these concerns at best amount to performance issues which, if held by Mr 

Fraser, should have been addressed through clear communication and direction, or if necessary, 

through the performance management process — they were not. Considering the circumstances 

of this matter, I have not been convinced that Mr Mullin’s actions relating to the finalisation of 

accounts for the 2022 KPMG audit were serious misconduct.  

 

Purchasing Officer – Activities for AR Employee 

 

[97] KAB allege that in early December 2023, Mr Mullins had not satisfactorily prepared for 

the commencement of a newly appointed Purchasing Officer, by not providing a sufficiently 

comprehensive list of activities to be performed by the role. It was also alleged that Mr Mullins 

had not informed the Accounts department that the new employee was commencing before he 

commenced his annual leave.  

 

[98] Mr Mullins asserted that he had produced a task list and recalled a conversation with 

Ms Luke who verbally approved the list to be sent. Mr Mullins further submitted that he was 

not aware that the incoming Purchasing Officer would commence at KAB during his annual 

leave, therefore he could not have provided information about their start date to his team. He 

also submitted that irrespective of his awareness, he should not have been responsible for 

relaying this information. 

 








[2025] FWC 371 

 

16 

[99] I note that this allegation was not directly addressed in KAB’s submissions. In any event, 

it was confirmed during the cross examination of Ms Gregory that this issue had been resolved, 

at the time. Consequently, I find this allegation to be without merit. 
 

E & O Write Off 

 

[100] The letter of termination states that Mr Mullins had failed to follow the stock adjustment 

procedure in authorising a write-off of “AUD$103k E&O” on 4 January 2024.29 

 

[101] Specifically, KAB allege that Mr Fraser had not been informed about it, and that Mr 

Mullins had approved and authorised it without seeking appropriate approval, as Mr Sant, who 

was standing in for Mr Fraser at the time, was absent on sick leave.  

 

[102] Mr Mullins states that a meeting was held in December 2023 with Mr Fraser, Mr Sant, 

Mr Amit Sharma, (KAB Manager, NSW) and himself, at which the disposal of excess and 

obsolete items was discussed. The list put to the meeting had been prepared by Mr Mullins.  Mr 

Mullins recalls that Mr Sharma stated that he would get the items together and dispose of them 

as soon as possible and that all agreed to this course of action. Mr Mullins’ recalls that Mr 

Fraser said words to the effect that “it looked fine and was approved”.30  

 

[103]  In early January 2024, the stock procedure authorisation for the write off needed to be 

signed off. Mr Mullins notes that the form had already been signed as required by Mr Navdeep 

Singh and Mr Dipen Acharya on 3 January. The next step in the process appears to have been 

for the Managing Director to sign the form. As Mr Fraser was on annual leave at this time, such 

delegation had been provided to Mr Sant, as the acting Managing Director. 

 

[104] When it came time to complete the paperwork for the write-off, Mr Sant was absent on 

sick leave. Mr Mullins states that in the absence of both the Managing Director and Acting 

Managing Director, he signed the write off authorisation in accordance with the pre-approval 

and the Stock Adjustment Procedure.  

 

[105] Mr Mullins submitted that he had acted in accordance with KAB’s Stock Adjustment 

Procedure. He notes that the write-off had been approved by Mr Fraser during a meeting, and 

further that he believed he was authorised to sign it in Mr Fraser and Mr Sant’s absence.  

 

[106] In closing submissions, Mr Diaz noted that there was no suggestion that the write-off 

was substantively incorrect as the stock to be written off was excess or obsolete and that this 

had been acknowledged by both Mr Fraser and Mr Sant during their respective oral evidence.  

It is also of note that the day before, Mr Sant had authorised Mr Mullins to sign a different 

document, relating to a forklift, in his absence.   

 

[107] I have not been convinced that Mr Mullins acted dishonestly. He did not seek to sign 

the form on behalf of anyone else. He signed the document as the Company Accountant, based 

on his understanding that this was an acceptable course of action given both Mr Fraser and Mr 

Sant were absent. 

 

[108] Additionally, I note that when Mr Fraser became aware that Mr Mullins had signed the 

write-off without advising Mr Sant, he did raise this with Mr Mullins who accepted 








[2025] FWC 371 

 

17 

responsibility for signing the document without advising Mr Sant and noted it would not happen 

again.   

 

[109] It would stand to reason that had Mr Mullins’ actions been of any more significance 

than a failure to advise Mr Sant, of his intention to sign a form actioning a pre-approved process, 

such that would warrant the allegation of serious misconduct, or dishonesty, KAB would have 

sought to reverse the approval — they did not.   

 

[110] Having considered all the circumstances of this allegation, particularly noting that this 

matter was appropriately dealt with and responded to at the time, I am not convinced that Mr 

Mullins’ actions were in any way dishonest, nor did they constitute serious misconduct.   

 

Freight Surcharge 

 

[111] This allegation was again quite vague and poorly articulated. As I understand it, the 

allegation is that on 6 March 2024, Mr Sant advised Mr Fraser that Mr Gao had reported to him 

that KAB was losing money due to Mr Mullins allegedly removing a 5.7% freight surcharge. 

 

[112] In Mr Mullins’ 22 March 2024 response, he explained that the reduction of the freight 

surcharge was agreed to and instructed to be implemented by Mr Fraser and Mr Sant in or 

around September 2023 and that he did not understand how, by simply implementing their 

instructions, he was being accused of unsatisfactory workplace conduct. 

 

[113] As with other allegations, despite his requests, Mr Mullins did not receive any further 

information regarding this allegation, nor any response to his explanation. This allegation did 

not receive a great deal of attention from KAB during the hearing, nor did it make its way into 

the final letter of termination. 

 

[114] In the absence of any information to the contrary, I accept Mr Mullins’ explanation and 

do not consider this allegation demonstrates any issues with Mr Mullins’ conduct or 

performance.  

 

Clerical Error – AX4 and D365 and Costing Issue 

 

[115] Again, these allegations were not well particularised and could reasonably be described 

as statements rather than allegations.  Regarding the clerical error, presuming that the allegation 

was that Mr Mullins had sent a 2016 WI file rather than an AX file, Mr Mullins asserts that this 

was no more than a simple mistake. In acknowledging his error, Mr Mullins noted that had it 

been brought to his attention at the time, he would have fixed it immediately by sending the 

correct file. Unfortunately, this error only seems to have been highlighted after Mr Fraser 

contacted Ms O’Leary in the days before commencing the disciplinary process making inquiries 

regarding Mr Mullins performance.  

 

[116] The costing issue also seems to have made its way into the disciplinary process as a 

result of Mr Frasers inquiries. Ms O’Leary had responded to Mr Frasers inquiries regarding Mr 

Mullins and advised that it had taken over 20 emails to resolve what she characterised as a 

simple XLS costing issue. Whilst no particulars of this issue were included, Mr Mullins seems 

to have been aware that a XLS issue had been identified but maintained that it was a simple 








[2025] FWC 371 

 

18 

accountancy issue that is commonplace. Mr Mullins further argued that it was his role, as 

Accountant to identify and rectify accounting issues that arise, which he did.  

 

[117] Whilst not explicitly mentioned in the letter of termination, these issues are taken to 

have formed part of the overall reasons for termination. Having considered the evidence and 

circumstances of this allegation, I find that at most, this allegation relates to a mistake that Mr 

Mullins was not advised of and an unsubstantiated allegation that it took him 20 emails to 

resolve a simple issue, that was not put to him until the disciplinary process had commenced.  

 

Errors in the company accounts 

   

[118] The letter of termination relies on errors in the company accounts.  KAB state that these 

errors were discovered by KAB after Mr Mullins’ suspension, when examining his “interaction 

with the software program”.31   

 

[119] Mr Mullins’ second response addressed these new issues by simply noting that they 

were confusing and that he would require additional information to allow him to respond. 

Noting Mr Mullins had been given three days to respond to all the matters raised in the second 

allegation letter, I consider this to have been a reasonable request. 

 

[120] Notwithstanding the above, the matters identified are clearly performance issues, 

however I have not been provided with sufficient evidence to determine their validity and as 

such, they have been afforded the appropriate weight in my considerations.  

 

Other allegations  

 

[121] A range of other allegations were put to Mr Mullins during this process. Most of these 

matters concerned timeliness in responding to emails or errors in processing of accounts and 

other documents. Most of these issues, would more appropriately have been characterised as 

performance issues, which should have been dealt with in accordance with KAB’s performance 

management policy. Again, they were not.  

 

[122] I also note that in each of his responses, Mr Mullins has offered to take any steps 

necessary to address KAB’s concerns, however KAB did not afford him this opportunity.  

 

Management of Mr Mullins Work Performance – 2023 review 

 

[123] According to Mr Fraser’s statement, he conducted a review of Mr Mullins’ performance 

during the first six (6) months of his employment on 14 April 2023. The evaluation identified 

that Mr Mullins needed to work on “purchasing and closing out D365 and one stream 

misalignment” matters which Mr Mullins had raised.32 Mr Fraser attached a copy of this 

Performance Evaluation which he states is dated 14 April 2023 and marked as BF-6. Mr Fraser 

also included an additional Performance Evaluation which he states is dated 1 March 2024 and 

marked as BF-7. I note that, both Performance Evaluations are not dated apart from indicating 

“2023 Performance Review”, which confusingly is also indicated on the 1 March 2024 review. 

Furthermore, both reviews appear exactly the same apart from a change in colours regarding 

the results column and that the 1 March 2024 review’s “2023 Overall Performance Rating” 

field is left blank. 








[2025] FWC 371 

 

19 

 

[124] Mr Mullins filed an additional statement responding to KAB’s material in which he 

states that the April 2023 performance review was not a true copy of the document he was 

shown at the time.33 Mr Mullins notes that the managers comments, “What about 365 and 

KPMG stat accounts ??”34 could not have been included in April 2023 as they did not become 

overdue until about May 2023.3536 

 

[125] Mr Mullins additionally noted a reference to the Employee Self-Assessment at Priority 

5, which is a reference to a First Aid Course.37 Mr Mullins states that this course was undertaken 

in or around September 2023 and as such, could not have been included in a document prepared 

in April 2023.38 Mr Mullins submits that the 2023 performance review document would likely 

have been produced no earlier than February 2024.39During the hearing, Mr Fraser confirmed 

that Mr Mullins was not shown this completed version of the April 2023 performance review 

document which contained the manager comments. 

 

[126] Mr Diaz further referred to the performance evaluation scale and the rating further below 

Mr Mullin’s rating, being “1 Unsatisfactory”, which states: 

 
“This rating signifies performance falling significantly below acceptable standards. Immediate and 

comprehensive action is required to address performance issues. The leader and employee must work 

closely to develop and implement a robust improvement plan. Continued employment in the current 

position is contingent upon substantial and sustained Improvement in performance.” (emphasis added) 

 

[127] Mr Fraser also confirmed during cross examination that no discussions were held with 

Mr Mullins about the comments made, nor what supports Mr Mullins might need to improve 

his unsatisfactory performance. Mr Fraser said he did not have the time. Mr Fraser further 

agreed that the performance evaluation scale does not mention anything about suspending, 

disciplining, or terminating an employee but that the leader and employee must collaborate on 

a plan of action to enhance performance. Mr Fraser conceded that he did not collaborate with 

Mr Mullins to improve his performance and that he never told Mr Mullins his performance had 

to improve if he was to retain his job. 

 

[128] Further noting an absence of any reference to suspending, disciplining, or terminating 

an employee, Mr Fraser conceded that the performance review process that the April 2023 

Performance Review document formed a part of was never concluded.  I therefore accept Mr 

Mullins’ submission that he had not sighted this version of the April 2023 Performance Review 

Document until it was provided with Mr Fraser’s statement.  

 

[129] In any event, it is reasonable to presume that had there been serious concerns with Mr 

Mullins’ performance in April 2023, a process to address this should have been initiated. Not 

only was no such process initiated, I note that KAB granted Mr Mullins a 10% pay increase in 

in 2023.  

 

2024 Performance Review Document  

 

[130] Mr Fraser states that on 1 March 2024, Mr Mullins completed a Top 5 performance 

review. That same day, Mr Fraser completed a 2024 performance review. A copy of this review 

was attached to his statement as BF-7. As noted above, this document is titled 2023 performance 








[2025] FWC 371 

 

20 

evaluation, not 2024, and many of the comments are identical to those in the version of the 2023 

performance review considered above. It is also noted that this document is not signed or dated.  

 

[131] Mr Mullins maintains that he was never shown this document and notes that there is no 

result for the “Overall Performance Rating” as it appears blank.40 Mr Fraser confirmed that this 

document was not reviewed by Mr Mullins, stating that he was planning to do so upon his return 

from India41, however it appears that no such discussion took place. Mr Fraser did not discuss 

this document with Mr Mullins on his return, nor was the performance review process 

progressed. Consequently, this document has been afforded appropriate weight in my 

considerations. 

 

Was Mr Mullins dismissed due to his performance?  

 

[132] During cross examination, Mr Fraser was asked if Mr Mullins was dismissed because 

of his performance. Mr Fraser insisted that he was not. Mr Fraser was subsequently shown the 

suspension letter dated 19 March 2024 and referred to the line which stated:42 

 
“We write to you in respect to various concerns we have in respect to your conduct and performance at 

work in your role.”  

 

[133] Mr Fraser was then taken to KAB’s 5 April 2024 letter which stated:43 

 
“Indeed, in the absence of a satisfactory and reasonable explanation, your performance in the role of 

Accountant may very well amount to gross negligence and/or serious misconduct.”   

 

and lastly to the termination letter which states:44 

 
“As you are aware we have advised you in our previous letters that we have serious concerns following 

an investigation regarding your conduct, performance and failure to follow policies and procedures as the 

Accountant for KAB…” 

 

[134] Mr Fraser’s insistence that performance issues existed as far back as April 2023 does 

however seem completely at odds with his insistence, during cross examination that Mr 

Mullins’ performance was not the reason for his dismissal, despite unambiguous evidence that 

it was a major factor in his dissatisfaction with Mr Mullins. As such, based on the material 

provided, in particular the show cause letters and termination letter, it is quite clear that KAB’s 

view on Mr Mullins’ performance formed part of, if not all, the reason for his dismissal. 

 

Was there a valid reason for the dismissal related to the Applicants capacity of conduct?  

 

[135] As described above, KAB’s allegations against Mr Mullins appear to have been 

somewhat of a moving feast. The first show cause letter contained 16 allegations. Further 

allegations were raised in the second letter however the termination letter of 12 April 2024 

summarily dismissed Mr Mullins for serious misconduct and/or gross negligence.  

 

[136] I have not been convinced that Mr Mullins’ actions constituted serious misconduct, nor 

that he acted dishonestly.  

 

[137] Whilst I accept that there were examples of situations in which Mr Mullins may not 

have met KAB’s performance expectations, I also find it harsh that, contrary to their 








[2025] FWC 371 

 

21 

performance management policy, KAB did not bring many of the issues raised in the show 

cause letters to his attention prior to initiating the disciplinary process. Of greater concern, is 

Mr Fraser’s admission that he knowingly let Mr Mullins continue to pursue his mapping 

concerns for the sole purpose of catching him in a lie.  

 

[138] Rather than taking this approach, it was open to Mr Fraser to have clearly communicated 

his requirements and expectations to Mr Mullins, and if Mr Mullins had not responded 

appropriately, to have begun a performance management process. 

 

[139] I do not accept that Mr Mullins’ explanations were unsatisfactory or unreasonable. To 

the contrary, I find that Mr Mullins provided a number of reasonable explanations, where able, 

and sought further particulars to enable him to provide a more fulsome response. This 

information was not forthcoming from KAB. Through the process, Mr Mullins expressed a 

willingness to better understand KAB’s expectations and to conform to any reasonable requests 

regarding his future conduct and performance. KAB did not respond to Mr Mullins’ suggestions 

in this regard. 

  

[140] I find that Mr Fraser’s views of Mr Mullins’ performance were a significant factor in 

his decision to dismiss Mr Mullins, however many of these issues had already been addressed 

and resolved, others were not adequately evidenced or particularised and those that may have 

warranted further attention, were not of such significance to have warranted his dismissal, 

summarily or otherwise. Consequently, I find KAB did not have a valid reason to dismiss Mr 

Mullins.   

 

Was the Applicant notified of the valid reason? And, was the Applicant given an 

opportunity to respond to any valid reason related to their capacity or conduct? 

 

[141] Having found that KAB did not have a valid reason to dismiss Mr Mullins, further 

consideration of this question is not required.45 However, for completeness, I again note the 

everchanging nature of the allegations put to Mr Mullins and KAB’s failure to provide the 

information requested by Mr Mullins to enable him to provide a fulsome response. In the 

alternative, had I found Mr Mullins’ conduct to have been a valid reason for his dismissal, I 

would not have been satisfied that he had been afforded a proper opportunity to respond.  

 

Did the Respondent unreasonably refuse to allow the Applicant to have a support person 

present to assist at discussions relating to the dismissal? 

 

[142] This issue was not in dispute in this instance nor was it applicable to this matter. I find 

that KAB did not refuse Mr Mullins access to a support person. 

 

Was the Applicant warned about unsatisfactory performance before the dismissal? 

 

Submissions of Mr Mullins 

 

[143] Mr Mullins submits that, based on the nature of the allegations provided by KAB as the 

reason for his dismissal, he was dismissed as a result of performance issues regarding the 

timeliness, accuracy and quality of his work as well as his communication with others in the 

workplace, rather than serious misconduct or gross negligence.46 








[2025] FWC 371 

 

22 

 

[144] Mr Mullins therefore argued that he should have been provided with a real opportunity 

to receive support and demonstrate improvement as would normally be expected in situations 

where there are performance concerns.47 Prior to issuing the show cause letter, KAB had not 

provided a written warning or notice to Mr Mullins about his unsatisfactory performance, nor 

had it been conveyed to him that his employment was at risk due to unsatisfactory 

performance.48 Mr Mullins submitted that KAB had not properly managed his performance in 

accordance with its company policy. If he had received adequate notice, his performance issues, 

“could have been resolved without terminating his employment”.49 

 

[145] Mr Mullins further submitted that while he offered and welcomed suggestions as to how 

to handle minor issues in the future in his letters responding to the allegations raised by KAB, 

but KAB did not provide a response to this effect.50 

 

Submissions of KAB 

 

[146] KAB acknowledged in its oral submissions that it had not provided Mr Mullins with 

any formal warning about his unsatisfactory performance prior to issuing the allegation letters. 

Nonetheless, KAB submits that Mr Mullins should have been aware that his performance was 

unsatisfactory. This is namely because there was a considerable delay in his preparation of 

financial statements for the KPMG audit and he had also received repeated follow up emails 

from KPMG and Mr Fraser about outstanding work and tasks. KAB further submits that since 

Mr Mullins should have been aware of his unsatisfactory performance, he should have also in 

turn, known that his employment was at risk if he did not complete his outstanding tasks. 

 

[147] Aside, KAB noted that as some of Mr Mullins’ misconduct only became apparent after 

his suspension, it could not have provided him with an earlier warning in relation to such issues.  

 

Consideration 

 

[148] A mere urging for an employee to improve their performance would not be a sufficient 

warning. A warning must:51 

 

• identify the relevant aspect of the employee’s performance which is of concern to the 

employer; and 

• make it clear that the employee’s employment is at risk unless the performance issue 

identified is addressed. 

 

[149] I do not accept KAB’s assertion that Mr Mullins “should have known” that his 

performance was unsatisfactory. Further to my findings as they relate to s.387(a), I find KAB 

did not follow its own performance management process to address any real or perceived 

performance issues prior to starting the disciplinary process, nor was Mr Mullins provided with 

a real opportunity to receive support and demonstrate improvement as would normally be 

expected in situations where there are performance concerns. I find that Mr Mullins was not 

warned about unsatisfactory performance before his dismissal.  

 

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 








[2025] FWC 371 

 

23 

dedicated human resource management specialists or expertise in the Respondent’s 

enterprise be likely to impact on the procedures followed in effecting the dismissal? 

 

[150] Both parties agreed that KAB is not a small business. Further it is not contested that 

KAB has a dedicated human resources team. As such I do not find these considerations to be 

relevant.  

 

Other relevant matters  

 

[151] With respect to other relevant matters, Mr Mullins submits that KAB’s conduct 

was especially harsh, unjust and unreasonable where: 

 

a. Mr Mullins had been employed by KAB for almost 2 years; 

b. Mr Mullins had never received written notice that his conduct was below standard; 

c. on 19 March 2024 he received a letter from KAB setting out numerous allegations 

against him that spanned a period of about 4 months; 

d. on that same day, he was locked out of KAB’s systems and told not to attend the 

premises.  

 

[152] Further, that KAB’s conduct in this instance was harsh when considered in the 

context of his age and occupation. Noting Mr Mullins was 61 years old when he was dismissed 

and has work experience in a specialised field. As such, he contended that KAB should have 

known that in dismissing him as it did, he would be placed in a disadvantaged position in the 

labour market. These submissions have been considered  

 

[153] KAB submit Mr Mullins engaged in conventional serious misconduct and was therefore 

not entitled to notice of termination or payment in lieu of notice, and precluded from working 

out a notice period due to his own deliberate acts or omissions. Additionally, KAB submit that 

Mr Mullins was provided with training, ongoing support and access to ongoing support to 

perform his work.  

 

[154] KAB submit the potential cost to KAB and its operations in Australia, including impact 

on other staff, in respect to errors in the budget FY2024 and fines for late lodgement of tax 

returns and payment of tax due to the delay in finalisation of the company accounts should also 

be considered. These submissions have formed part of my overall consideration. 

 

Conclusion on Merits 

 

[155] I have found that Mr Mullins’ action were not serious misconduct and that KAB did not 

have a valid reason for dismissing Mr Mullins. 

 

[156] Having made findings in relation to the matters specified in section 387 as relevant, I 

am satisfied that Mr Mullins was unfairly dismissed, and that the dismissal was harsh, unjust 

and unreasonable. I am therefore satisfied that Mr Mullins was unfairly dismissed within the 

meaning of s. 385 of the Act. 

 

Remedy 

 








[2025] FWC 371 

 

24 

[157] With respect to remedy, section 390 of the Act provides that the Commission must only 

make an order for the payment of compensation if satisfied that reinstatement is not appropriate, 

and where it is considered that compensation is appropriate in all the circumstances of the case. 

 

Reinstatement  

 

[158] Mr Mullins does not seek reinstatement and has found new employment commencing 

on 6 November 2024. As such I do not consider reinstatement appropriate in this case. 

 

Is an order for compensation appropriate in all the circumstances? 

 

[159] The Full Bench has noted that the question of whether to order a remedy in a case where 

a dismissal has been found to be unfair remains a discretionary one, and whether an applicant 

has suffered financial loss may be a relevant consideration.52 

 

[160] I am of the view that in all the circumstances of this case, it is appropriate to order 

compensation. My reasons and assessment of the amount are set out below. 

 

[161] The long-established approach to assessing compensation in unfair dismissal matters 

was set out in Sprigg v Paul Licensed Festival Supermarket (Sprigg),53 which the Full Bench 

of this Commission has since applied under the current Act.54 

  

[162] I summarise the Sprigg formula as follows: 

 

1. Estimate the remuneration that employee would have received if the employer had 

not terminated the employment; 

 

2.  Deduct monies earned since termination; 

 

3.  Discount the remaining amount for contingencies;  

 

4.  Calculate the impact of taxation. 

 

[163] While Sprigg sets out the method, I must nevertheless take account of all the 

circumstances of the case and of the specific criteria listed in s 392.55 

 

[164] The overall consideration is that the level of compensation must nevertheless be 

appropriate (that is, neither clearly excessive nor clearly inadequate) having regard to all the 

circumstances of the case.56 My consideration follows. 

 

Section 392(2)(a) – Viability 

 

[165] KAB did not make submissions regarding this factor, though I do note that KAB’s 

profits are below its expectations.  However, there is no evidence that KAB are in liquidation. 

As such, I am not persuaded that my consideration of this factor means that I should not make 

an order for compensation. 

 

Section 392(2)(b) – Length of service 








[2025] FWC 371 

 

25 

 

[166] KAB submits that Mr Mullins employment from on or about 29 August 2022 until 12 

April 2024 is a very short period of employment during which it has been identified there were 

significant issues with performance of his work and conduct at least in the last six to ten months.  

 

[167] Noting Mr Mullins submits he commenced employment on 29 August 2022, I am 

satisfied that Mr Mullin’s length of service is 1 year, 7 months and 2 days. This is a relatively 

short period of time and has been taken into consideration.  

 

Section 392(2)(c) – Remuneration the person would have received 

 

[168] As stated by a majority of the Full Court of the Federal Court in the He v Lewin57 (as 

quoted in Zeng v Conrock Australia Pty Limited) 

 

“[i]n determining the remuneration that the Applicant would have received, or would 

have been likely to receive... the Commission must address itself to the question 

whether, if the actual termination had not occurred, the employment would have been 

likely to continue, or would have been terminated at some time by another means. It is 

necessary for the Commission to make a finding of fact as to the likelihood of a further 

termination, in order to be able to assess the amount of remuneration the employee 

would have received, or would have been likely to receive, if there had not been the 

actual termination.” 

 

[169] It is clear that KAB had concerns regarding Mr Mullins’ performance, and that the 

relationship between he and Mr Fraser had become strained. In this environment, had Mr 

Mullins not been summarily dismissed for serious misconduct/gross negligence, it is likely that 

KAB would have initiated a formal performance management process at some stage.  

 

[170] It is of note however, that in response to performance issues raised as a part of the 

disciplinary process that led to his dismissal, Mr Mullins expressed his willingness to work with 

KAB and do whatever was in his power to address their concerns. I expect that he would have 

taken a similar approach to any formal performance process and would have done his best to 

meet KAB’s expectations. I therefore consider that had KAB initiated an appropriate process 

in the future and afforded him this opportunity he may well have been able to meet their 

expectations and remained in employment. 

 

[171]  However, I have also taken account of the significant breakdown in the relationship 

between Mr Mullins and Mr Fraser, a consequence of which may well have been that it was 

impossible for Mr Mullins to have met KAB’s expectations. Consequently, I consider it likely 

that Mr Mullins would have exited the organisation either voluntarily, or following a properly 

identified and managed performance process in the future.    

 

[172] Taking the above into consideration, I believe that Mr Mullins was likely to have 

remained in KAB’s employment for another 12 to 18 months.  I note however that Mr Mullins 

did commence a new job on 6 November 2024. On that basis, I consider his loss to be the 29 

weeks between his dismissal and the commencement of his new employment.   

 

Section 392(2)(d) – Efforts to mitigate loss 








[2025] FWC 371 

 

26 

 

[173] It was Mr Mullins’ evidence that he had been on job seeking websites daily to locate 

alternative employment.58 Further that he had utilised his network to see if any jobs suitable to 

his qualifications and experience are available.59 

 

[174] At the time of the hearing, Mr Mullins had been unable to obtain alternative employment 

and remained unemployed. Mr Mullins submitted that this was partly because he is an 

accountant specialised in manufacturing accountancy and as such, there are limited roles 

available in these fields.60  

 

[175] KAB submitted that Mr Mullins has provided no evidence of his attempts to mitigate 

his loss, other than mere assertion in his statement that he has been looking at websites such as 

SEEK and asking people who may be able to assist with employment. KAB states a search on 

Google for ‘inventory accounting jobs in Brisbane’ returned results on SEEK for some 64 jobs 

as of 17 July 2024. Furthermore, there are jobs listed with equivalent or similar salaries to that 

of Mr Mullins at the time of termination. As such, Mr Mullins bears the onus of taking 

reasonable steps to minimise the impact of the dismissal, KAB submits that “mere looking” 

does not constitute reasonable steps or any substantial effort to find work.  

 

[176] During the hearing Mr Mullins was referred to the list of inventory accountant jobs in 

Brisbane, as compiled by Ms Sutton, and was asked whether the jobs were suitable. Mr Mullins 

stated that out of the 22 jobs, only two jobs were suitable for his experience as the other jobs 

were not in manufacturing. When asked, Mr Mullins confirmed that though he was a 

manufacturing accountant, he had previously dealt with inventory management accounting, 

project accounting and cost accounting as other duties in his role. It was then put to Mr Mullins 

his statement of being unable to find similar employment is not accurate as he has experience 

in inventory accounting and cost accounting. Mr Mullins conceded that those roles would be in 

his experience but not what he would want to do. When asked if he would be able to do these 

jobs, Mr Mullins agreed he would. 

 

[177] Mr Mullins further stated that he has not been applying for jobs he says he believes he 

is not suitable for, or a job that is in a head office in the city. Mr Mullins went on to state that 

he wants to do something he has been doing his whole life — working in a factory, half an 

hour’s drive from his home.  

 

[178] On 3 January 2025 I sought further submissions from the parties regarding Mr Mullins’ 

efforts to mitigate his losses since the hearing.  

 

[179] Mr Mullins states that according to the records accessed on or about 5 January 2025, he 

had applied for 26 positions through SEEK between 20 August 2024 and 30 October 2024, one 

of which he was successfully employed for. Mr Mullins states that his SEEK records only go 

back as far as 90 days, and as such he is unable to retrieve all his applications, but he estimates 

that he applied for a further 10 positions from the date of the hearing to 1 November 2024. 

Further, Mr Mullins states he had attended seven (7) interviews between the hearing and the 

date Mr Mullins was offered the position with KB Seafood Co Pty Ltd. 

 

[180] With respect to Mr Mullins’ supplementary statement, KAB notes that since the hearing 

Mr Mullins has applied for roles not limited to that of a “management accountant,” despite 








[2025] FWC 371 

 

27 

being critical of evidence tendered by KAB of advertised roles that may be available to him to 

apply for as an accountant advertised online. It is also noted, that the position Mr Mullins has 

obtained is a full-time role as a Cost Accountant with KB Seafood Co Pty Ltd based at 

Morningside (10 min drive or 5km in distance from his home at Camp Hill).  

 

[181] KAB submit that Mr Mullins has demonstrated that with a broader search for work he 

was able to secure employment in an accounting role, within approximately 9-10 weeks 

following the hearing of the matter on 16 August 2024, close by to where he resides. As such, 

KAB submits that there is a reasonable inference to be drawn that Mr Mullins made no real 

attempt to mitigate his loss and apply for work prior to the hearing of this matter and did not 

make reasonable efforts until after the hearing of this matter concluded. 

 

[182] Mr Mullins submits that when considering his career specialisation and that he was in 

the later stage of his career, it is beyond reasonable to expect that he mitigates his loss by 

looking for work outside of his field of specialisation. Mr Mullins argues that as a late-career 

specialist, it was reasonable for him to have attempted to find work within his specialised field. 

Once that opportunity had been afforded to him, it would then become reasonable to expect 

him to broaden his parameters. Mr Mullins looked for work within his specialised field for four 

months without success. Following that, it became reasonable to expect he would broaden his 

search and look for work outside of his specialised field, which he did.   

 

[183] Whilst I acknowledge Mr Mullins submissions and preferences, I did not find his 

explanation as to why he did not apply for other work that he was both capable and experienced 

to do, as a sufficient barrier to him mitigating his loss.  

 

[184] Taking the above into consideration, I find that Mr Mullins did not make all reasonable 

attempts to find alternative employment, particularly in the period between his dismissal and 

the hearing. I have balanced this finding with the consideration that Mr Mullins’ capacity to 

find alternative employment may have been impacted by his age, and by the fact that he was 

not able to provide prospective employers with a letter of reference or statement of service from 

KAB. I have also considered the additional loss that Mr Mullins has incurred because of 

accepting a role at a lessor rate of remuneration than his role with KAB.  Taking all of these 

factors into consideration, I find it appropriate to reduce the amount of compensation awarded 

to Mr Mullins by 30%. 

 

Section 392(2)(e) & (f) – Remuneration and income earned 

 

[185] As indicated above and the absence of any submissions from either party, noting KAB 

submit that any income earned by employment prior to hearing should be considered, Mr 

Mullins has been employed and has received income in new employment since 6 November 

2024. Mr Mullins says that his current salary is $85,000 per annum plus superannuation. 

 

[186] I am satisfied that the total earned by Mr Mullins from employment or other work during 

the period since the dismissal is $21,250, however as this amount was wholly earnt outside of 

the period I have identified as Mr Mullins’ loss, it will not be deducted from the total. 

 

Section 392(2)(g) – Any other matter 

 








[2025] FWC 371 

 

28 

[187] Mr Mullins states that his legal costs at the time of his statement are about $8,950 and 

that by the end of the hearing they will total about $13,000 to $15,000.61 

 

[188] KAB submit, and I accept, that costs are subject to s.402 of the Act and that the time for 

consideration of an application for costs should be considered at the conclusion of the entire 

proceeding. 

 

[189] It is unclear whether Mr Mullins seeks cost, however in any event a person must bear 

their own costs in relation to a matter before the Commission per s. 611(1) of the Act. 

 

Section 392(3) – Contribution to dismissal by misconduct not relevant 

 

[190] KAB contends that Mr Mullins’ conduct constitutes serious misconduct and gross 

negligence for which any amount of compensation should be reduced by 100% considering his 

conduct.62 As I have not found this to be the case, Mr Mullins’ compensation will not be reduced 

in this regard.  

 

Section 392(4) – Shock, distress etc disregarded 

 

[191] I have not ordered an amount of compensation for shock and distress. 

 

Taxation 

 

[192] Consistent with prior decisions,63 I propose to order payment of a gross (that is, before  

tax) amount of compensation, to be taxed according to law. 

 

Section 392(5) Compensation Cap 

 

[193] Based on the material provided, Mr Mullins earned a weekly pay of $2,221.15 per week. 

I accept this figure. 

 

[194] Under s 392(5) the compensation cap is the lesser of 26 weeks of Mr Mullins’ pay 

or half the amount of the high-income threshold.  

 

• $83,750 is half the amount of the high-income threshold that applied immediately before 

Mr Mullins’ dismissal, which was $167,500. 

• $57,749.90 is 26 weeks of Mr Mullins’ weekly pay. 

 

[195] The compensation cap that applies to Mr Mullins is therefore $57,749.90. 

 

Calculations 

 

My calculations are set out in the following table: 

 

Step 1 – Remuneration if employee had not been dismissed Amount 

• Weeks wages per week $2,221.15 

• Projected further weeks of employment (loss) 29 

Total Remuneration $64,413.35 








[2025] FWC 371 

 

29 

Step 2 – Discounts    

s 392(2) (Mitigation of Loss)  30% 

s 392(3) Deduction for Misconduct 0 

Step 3 – Discount other contingencies  0 

Total after deductions $45,089.34 

Step 4 – Taxation - To be taxed according to law To be taxed according to 

law 

Step 5 – s 392(5) Apply compensation cap $45,089.34 

 

Conclusion on Remedy 

 

[196] Having weighed each of the considerations under section 392, I intend to issue an order 

that the Respondent, KAB, pay to the Applicant, Mr Justin Mullins, the sum of $45,089.34 

gross, taxed in accordance with law. An order to that effect will be issued separately and 

concurrently with this decision. 

 

 
 

COMMISSIONER 

 

Appearances: 

P. Diaz for the Applicant   

J. Ford for the Respondent   

 

Hearing details: 

2024   

Brisbane   

15 & 16 August  

 

Printed by authority of the Commonwealth Government Printer 

 

PR784164 

 

 

 
1 DHB at pg. 195 & 333 – Witness Statement of Ashley Sant at 7 & Witness Statement of Ben Gao at 5. 

2 DHB at pg. 333 – Witness Statement of Ben Gao at 5. 

3 DHB at pg. 340 – Witness Statement of Bill Fraser at 16. 

4 DHB at pg. 13 – Show Cause Letter dated 19 March 2024. 

5 Ibid at pg. 13 to 15. 

6 Ibid at pg. 16. 

 


EF R WOA THE MMISSION THE SEAL OF




 



[2025] FWC 371 

 

30 

 
7 DHB at pg.13 – Show Cause Letter dated 19 March 2024. 

8 DHB at pg.35 – Termination Letter. 

9 Fair Work Act 2009 (Cth) s.382. 

10 Raj Bista v Group Pty Ltd t/a Glad Commercial Cleaning [2016] FWC 3009 

11 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373. 

12 Ibid. 

13 [2021] FWC 4 at 118. 

14 Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185, 

[46] citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413. 

15 DHB at pg. 58 – Applicant Submissions at 124. 

16 DHB at pg. 169 to 170 – Respondent Submissions at 20 to 24. 

17 Ibid at 24. 

18 Emma Horan v Tren Trading Pty Ltd t/a Dubbo Early Learning Centre [2019] FWC 3249. 

19 Ibid. 

20 Briginshaw v Briginshaw [1938] HCA 34 (30 June 1938), [(1938) 60 CLR 336]; cited in Barber v Commonwealth of 

Australia as represented by the Department of Parliamentary Services [2011] FWA 4092 (Thatcher C, 6 July 2011) at 

para. 33, [(2011) 212 IR 1] 

21 Briginshaw v Briginshaw [1938] HCA 34 (30 June 1938), [(1938) 60 CLR 336]. 

22 Ibid., [(1938) 60 CLR 336] at pp. 362‒3] 

23 DHB at pg. 20 – Response to Show Cause Letter dated 22 March 2024. 

24 DHB at pg.35 – Termination Letter. 

25 DHB at pg. 448 to 449 – Email Chain (Annexure BF-20). 

26 Ibid at pg. 448. 

27 DHB at pg. 344 – Witness Statement of Bill Fraser at 56. 

28 DHB at pg. 419 – Email Chain (Annexure BF-8). 

29 DHB at pg.35 – Termination Letter. 

30 DHB at pg. 109 – 22 March 2024 Response Letter from the Applicant. 

31 DHB at pg. 28 – Further Show Cause/Allegations Letter dated 5 April 2024. 

32 DHB at pg. 340 – Witness Statement of Bill Fraser at 21. 

33 DHB at pg. 131 – Second Witness Statement of Justin Mullins at 46. 

34 Ibid at 47. 

35 Ibid. 

36 Ibid. 

37 DHB at pg. 131 – Second Witness Statement of Justin Mullins at 48. 

38 Ibid. 

39 Ibid. 

40 DHB at pg. 131 – Second Witness Statement of Justin Mullins at 52. 

41 DHB at pg. 341 – Witness Statement of Bill Fraser at 22. 

42 DHB at pg. 13 – Show Cause Letter dated 19 March 2024. 

43 DHB at pg. 28 – Further Show Cause/Allegations Letter dated 5 April 2024. 

44 DHB at pg. 35 – Termination Letter. 

45 Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), 

[41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49]. 

46 DHB at pg. 58 – Applicant Submissions at 124. 

47 Ibid at 124 to 126. 

 






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https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc3249.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwa4092.htm
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[2025] FWC 371 

 

31 

 
48 DHB at pg. 58 – Applicant Submissions at 125. 

49 Ibid. 

50 Ibid at 126. 

51 Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44]. 

52 Vennix v Mayfield Childcare Limited [2020] FWCFB 550 at [20]. 

53 (1988) 88 IR 21. 

54 ERGT Australia Pty Ltd v Govender [2021] FWCFB 4508 at [35]. 

55 Elefantis v The Trustee for Timber Ridge Unit Trust [2022] FWCFB 43 at [67]. 

56 McCulloch v Clavary Health Care Adelaide [2015] FWCFB 873 at [29]. 

57 [2004] FCAFC 161 at [58]. 

58 DHB at pg. 73 – Witness Statement of Justin Mullins at 85. 

59 Ibid. 

60 Ibid at 86. 

61 Ibid at 88. 

62 DHB at pg. 174 – Respondent Submissions at 49. 

63 Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge [2013] FWCFB 431 at [55]; 

Vennix v Mayfield Childcare Limited [2020] FWCFB 550 at [32]. 

 

 






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https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb4508.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwcfb43.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb873.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb431.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb550.htm

Cases cited by this decision: