1
Fair Work Act 2009
s.394—Unfair dismissal
Keith Rutty
v
Smartdollar
(U2024/10411)
COMMISSIONER SCHNEIDER PERTH, 7 MARCH 2025
Application for an unfair dismissal remedy
[1] On 2 September 2024, Keith Rutty (Mr Rutty or the Applicant) made an application to
the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009
(Cth) (the Act) for a remedy, alleging that he has been unfairly dismissed from his employment
with Smart Dollars Western Australia Pty Ltd (Smart Dollar). The Applicant seeks
compensation.
[2] As the matter could not be resolved at conciliation, the matter was listed for a
determinative conference which was held on 17 December 2024. Neither party sought
permission to be represented by a lawyer or paid agent, both parties were self-represented at
the determinative conference. Mr Rutty gave evidence on his own behalf. Mr Kelvin Di Wang
gave evidence on behalf of Smart Dollar. Mr Rutty filed submissions in the Commission on 21
November 2024. Smart Dollar filed submissions in the Commission on 8 December 2024.
[3] It was not disputed that Mr Rutty was dismissed at the initiative of the Smart Dollar. Mr
Rutty is a person protected from unfair dismissal as his employment was covered by the
General Retail Industry 2020 Award. Mr Rutty filed his application within the 21-day time
period as required by the Act. Mr Rutty’s dismissal was not a case of genuine redundancy.
Smart Dollar initially submitted that the Small Business Fair Dismissal Code (SBFDC) applied
to the employment of Mr Rutty. However, during the determinative conference before the
Commission on 17 December 2024, Mr Wang confirmed that Smart Dollar had several stores
across Western Australia that were all associated businesses which employed more than 15
employees. As a result, I am not satisfied that the SBFDC applied to Mr Rutty’s employment.
[4] Smart Dollar submits that, from 2022 to 2023, the business experienced a significant
decline in revenue during the tenure of Mr Rutty’s employment and inferred that this was due
to the performance and attitude of Mr Rutty. Smart Dollar did not provide any empirical data,
witness testimony, or other evidence to support this accusation. When pushed for an explanation
on how Mr Rutty’s performance and attitude were a concern for Smart Dollar, Mr Wang
provided two examples:
[2025] FWC 685
DECISION
AUSTRALIA FairWork Commission
[2025] FWC 685
2
• The first incident: In 2023, Mr Wang travelled to the Warnbro store to pick up a lamp
that a customer requested from another store and Mr Rutty provided him with the
incorrect lamp.
• The second incident: Mr Wang directed Mr Rutty to complete a certain task but, after
a discussion with another team member, Mr Rutty completed a different task.
[5] Both of these examples occurred some months before the dismissal of Mr Rutty and,
whilst these may indicate extremely minor areas of concern regarding Mr Rutty’s performance,
neither example provided would, in isolation or combined, provide a valid reason for
termination nor would they reasonably warrant the termination of Mr Rutty’s employment.
[6] Smart Dollar also made other comments concerning Mr Rutty’s conduct, including that
he was too talkative with customers, spent time on his mobile phone whilst at work, and asked
for additional shifts despite not always being able to complete the shifts when rostered. Smart
Dollar did not provide detailed information or evidence regarding the above alleged conduct,
nor does it appear any warnings were issued to Mr Rutty for these areas of concern.
[7] Smart Dollar submits that, in 2024, a new manager (Mr John Hsiu-Chung Sung) was
appointed the store Mr Rutty worked at. Prior to his appointment as store manager, Mr Sung
and Mr Rutty were colleagues. Mr Sung provided a written statement, however, did not attend
the determinative conference, so he was not available for questioning and further examination
of his evidence. Mr Sung’s evidence is that, on 12 June 2024, he had a formal performance
discussion with Mr Rutty concerning his performance. Smart Dollar submits that, following
this meeting, there was improvement from Mr Rutty. However, after a further two weeks, Smart
Dollar submits that Mr Rutty’s performance regressed. As a result, on 24 July 2024, Mr Wang
“personally discussed the situation with Mr Keith, advising him to seek alternative
employment”. Smart Dollar did not provide any detailed reasons for this decision, only that Mr
Rutty’s performance was not satisfactory, asserting that the lack of diligence from Mr Rutty
resulted in multiple work-related errors which adversely affected the business.
[8] Mr Rutty filed very limited material with the Commission in support of his application.
However, during the determinative conference, I found Mr Rutty to be forthcoming in his
statements and generally appeared to be a credible witness. Mr Rutty states that Mr Wang
informed him in July 2024 he would be out of the job, at the end of August 2024, due to his
age. Mr Rutty disputes the assertions and version of events put forth by Smart Dollar.
[9] A primary issue of contention between the parties was the conversation between Mr
Rutty and Mr Sung, that Smart Dollar submit occurred on 12 June 2024, in which Mr Sung
states he had a formal performance management discussion with Mr Rutty. Not having had the
benefit of being able to question Mr Sung on his evidence, and noting the evidence of Mr Rutty
to the contrary alongside his general reliability as a witness, I have formed the view that this
conversation did not occur or if it did, the conversation was not of such a manner that Mr Rutty
could have reasonably understood it to be a warning or formal performance management
meeting. There are no accompanying notes or other evidence that this meeting occurred, and
no written warning or similar was provided to Mr Rutty at the conclusion of the meeting.
[2025] FWC 685
3
[10] Mr Rutty’s responses during the determinative conference were rational and appeared
consistent with the, albeit limited, evidence before the Commission. I found Mr Rutty to be
sincere in his explanation of events that occurred at Smart Dollar during his employment. For
example, Mr Rutty did not deny that he accidentally provided Mr Wang with the wrong lamp
for a customer. However, Mr Rutty states that this was an innocent mistake. Mr Rutty also
clarified that this incident occurred over 12 months prior to his dismissal taking place.
[11] Mr Rutty outlines that many of the customers of Smart Dollar were older and liked
friendly customer service, which involved the expected level of verbal communication and what
one may describe as a bit of chit chat. Mr Rutty notes that many of the other staff at Smart
Dollar in Warnbro do not have English as a first language and, as a result, he would provide
additional assistance with customer communication when required. Mr Rutty concedes that he
did have his mobile phone with him during work hours, however, this was to enable
communication with his daughter who, due to her medical issues and care needs, would
occasionally need to contact him while working out of necessity.
[12] Mr Rutty submits that he was not provided with any written warnings nor was he ever
subject to any formal disciplinary proceedings during his employment with Smart Dollar. Mr
Rutty said that, except for being told he was too old by Mr Wang, he has not been provided
with a reason for his dismissal.
[13] For an employer to terminate the engagement of a worker after the duration of
employment that Mr Rutty had with Smart Dollar, there needs to be a valid reason giving rise
to termination which is sound, defensible, or well founded. Smart Dollar has not provided any
evidence that the conduct or capacity of Mr Rutty was such an issue that it gave rise to a valid
reason and the right to terminate.
[14] On the contrary, the examples of alleged problem conduct, and performance issues
provided by Smart Dollar as contributing to Mr Rutty’s dismissal were vague, trivial in nature,
infrequent, not supported by any notable evidence, and occurred well before the termination
took place.
[15] I have formed the view that Smart Dollar decided Mr Rutty was no longer required by
the business and, as a result, they opted to terminate his employment without any care. Smart
Dollar seems to rely on alleged conduct and performance issues, even if this was the case, it
still enacted a dismissal without affording any due process or clarity to Mr Rutty. I note that the
examples provided by Smart Dollar, concerning Mr Rutty’s performance, were not recent in
the engagement and, on assessment of all that is before me, appear to have been brought up
simply as convenient excuses in a desperate attempt to justify the problematic termination of
Mr Rutty.
[16] Mr Rutty may not have been the perfect employee for Smart Dollar and Smart Dollar
may have had concerns over Mr Rutty’s performance, however, there is no evidence to suggest
Mr Rutty was provided with any formal warnings in relation to the concerns held about his
performance. Having met with Mr Rutty and understanding how important this job was to him;
I am certain that, had Mr Rutty been given the opportunity to improve his alleged performance
issues, he would have made all possible attempts to do so.
[2025] FWC 685
4
[17] For the reasons outlined above, I have determined that there was no valid reason for the
termination of Mr Rutty’s employment by Smart Dollar (s387(a) of the Act). As I have found
there was no valid reason for the termination of Mr Rutty’s employment, there could not have
been notification of a valid reason or opportunity to respond to such (ss387(b) – (c) of the Act).
There is no evidence to suggest that Mr Rutty was unreasonably refused a support person
(s387(d) of the Act). Smart Dollar submits that it did have concerns about Mr Rutty’s
performance at work, however, I do not believe that these performance concerns were ever
formally or reasonably addressed with Mr Rutty nor am I satisfied that the reason for
termination was unsatisfactory performance (s387(e) of the Act). Smart Dollar is not a small
business for the purpose of the SBFDC code, however, from its conduct during proceedings, it
is evident that Smart Dollar is not a large employer and that they lack the required human
resources management support in dealing with employment related issues. This lack of support
and structure were factors that led to Mr Rutty’s employment being dismissed in a manner
which lacked any of the expected or required formalities (ss387(f) – (g) of the Act). In
determining the matter, I have also considered that Mr Rutty was engaged by Smart Dollar for
over three years with no formal warnings or similar which could be produced into evidence. At
the determinative conference, Mr Rutty explained that he had not been able to find new
employment and the impact this termination has had on his family has been significant. Mr
Rutty submits that his age impacts his ability to find new employment (s387(h) of the Act).
[18] I have made findings in relation to each matter specified in section 387 of the Act as
relevant. Having considered each of the matters specified in section 387 of the Act, I am
satisfied that the dismissal of the Applicant was harsh, unjust, and unreasonable. There was no
valid reason for the termination of Mr Rutty. The examples provided by Smart Dollar
concerning Mr Rutty’s performance do not individually or collectively justify the termination
of Mr Rutty’s employment and termination for such issues would be disproportionate. Smart
Dollar’s termination of Mr Rutty cannot be supported by anything that has been put forth, and,
of most concern, it appears that Smart Dollar was not concerned with the fact that the
termination was unjustified.
Conclusion
[19] I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of
section 385 of the Act. The parties will be contacted regarding the programming of the matter
to determine remedy.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
PR785052
IWORK COM THE FAIR WORK C ALOTMANI MISSION THE SEAI
