s.394 - Unfair dismissal

Application for an unfair dismissal remedy - summary dismissal - dismissal consistent with the Small Business Fair Dismissal Code - application dismissed

• [1] This Decision involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009. The Application was made by Alexandra Wilkinson. The Respondent Employer is Cambridge Hair Collective Pty Ltd (Cambridge Hair).

• [2] The Application was filed on 4 August 2025, and it indicated that the date of the Applicant's dismissal was 16 July 2025. Cambridge Hair filed a response to the Application dated 25 August 2025.

• [3] On 18 September 2025, I issued a notice of listing and directions to the parties regarding the jurisdictional objection and asked parties to provide submissions in relation to whether Cambridge Hair is a small business employer (employing fewer than 15 employees at the time of the dismissal), and if so, whether Cambridge Hair complied with the Small Business Fair Dismissal Code (the Code).

• [4] On 31 October 2025, the parties agreed to the jurisdictional question being dealt with on the papers.

• [5] Cambridge Hair is a women's Hair Salon located in Wynnum, Queensland, owned by Ms Marrion Gay. Ms Gay describes Cambridge Hair as a "small business".

• [6] Ms Wilkinson commenced employment with Cambridge hair 12 November 2019. Ms Wilkinson was covered by the Hair and Beauty Award [MA000005] (the Award). Whilst neither party has provided a copy of Ms Wilkinson's contract of employment, I understand there is no dispute that one existed, and that it contained a restraint of trade clause.

• [7] 27 June 2025, Ms Wilkinson sent a text message to Ms Gay advising her intention to resigned from Cambridge Hair.[1] The parties exchanged a series of emails regarding Ms Wilkinson's future plans, in which she indicated that she had not secured alternate employment. Ms Wilkinson confirmed she would "email you my notice".[2]

• [8] 27 June 2025 Ms Wilkinson sent an email to Ms Gay confirming her resignation and stating, "I would like to give 4 weeks' notice and will be finishing on Friday 25th July 2025".

• [9] 10 July 2025, Ms Wilkinson received a reply from Ms Gay confirming that her resignation had been "received, accepted and will be filed".[3] Ms Gay also asked Ms Wilkinson to "provide details on your decision as to whether you will be renting a chair in another local salon".[4]

• [10] Ms Wilkinson replied, confirming she had decided to accept a rental chair position in another salon in Manly.[5]

• [11] On Tuesday, 15 July 2025, Ms Wilkinson noted that her schedule had been blocked out for an hour at 2pm that day for a "meeting with Marriane".

• [12] During the meeting, Ms Gay advised Ms Wilkinson that she was not required to serve 4 weeks' notice, rather, she preferred the Ms Wilkinson serve only two weeks' notice. The parties also discussed the non-compete clause and Ms Gay raised her concern that Ms Wilkinson had allegedly been soliciting Cambridge Hair's clients.

• [13] Ms Wilkinson says that she felt "blindsided" by those discussions and submits that she subsequently absented herself from work on personal leave.[6]

• [14] The following day, 16 July 2025, Ms Wilkinson emailed Ms Gay asking if she was expected to return to work for the remainder of her notice period. Ms Gay replied later that afternoon saying, "Your resignation was accepted however your finish date was not discussed or agreed upon. Given the circumstances your finish date will be end of your shift this current pay week, Wednesday 16th July 2025".[7]

• [15] When Ms Wilkinson requested payment of her notice up to 25 July 2025, Cambridge Hair advised Ms Wilkinson that, "As there has been a breach in your Employment Agreement contacting salon clients, your employment is terminated effective immediately."[8]

• [16] It is relevant to note that Ms Wilkinson had already resigned from her employment on 27 June 2025, and the summary dismissal occurred during the balance of her notice period. Although the timing may make it difficult to distinguish between the effect of the resignation and the dismissal, Ms Gay's action nonetheless brought the employment relationship to an end earlier than the date specified in Ms Wilkinson's notice of resignation. Accordingly, Ms Wilkinson was "dismissed" for the purposes of the Act, notwithstanding that she had already given notice of her resignation.

• [17] Under s.396 of the Fair Work Act 2009, the Commission is obliged to decide the following matters before considering the merits of an unfair dismissal application:

a) whether the application was made within the period required in subsection 394(2); > > b) whether the person was protected from unfair dismissal; > > c) whether the dismissal was consistent with the Small Business Fair Dismissal Code (SBFDC); > > d) whether the dismissal was a case of genuine redundancy.

• [18] Ms Wilkinson's unfair dismissal application was filed within the statutory time limit.

Was Ms Wilkinson a person protected from unfair dismissal?

• [19] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and > > b) one or more of the following apply: > > (i) a modern award covers the person; > > (ii) an enterprise agreement applies to the person in relation to the employment; > > (iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high-income threshold.

• [20] There is no dispute that Cambridge Hair had only seven employees when Ms Wilkinson was dismissed. Ms Wilkinson was employed by Cambridge Hair for over five years, which means she had completed the minimum employment period of 12 months for a small business.

• [21] Cambridge Hair accepted in its Form F3 that the Hair and Beauty Award [MA000005] covered Ms Wilkinson's employment with the Respondent. Ms Wilkinson's annual rate of earnings was also below the high-income threshold.

• [22] I find Ms Wilkinson was a person protected from unfair dismissal.

• [23] Ms Wilkinson was dismissed for alleged serious misconduct. Cambridge Hair did not argue that the dismissal was a case of genuine redundancy. I find Ms Wilkinson's dismissal was not a case of genuine redundancy.

Was Ms Wilkinson's dismissal consistent with the Small Business Fair Dismissal Code?

• [24] Cambridge Hair summarily dismissed Ms Wilkinson for alleged serious misconduct on 16 July 2025. In the Form F3 Response and in its written submissions, Cambridge Hair identified the reasons relied upon for the Applicant's summary dismissal. The Respondent's principal contention is that Ms Wilkinson was dismissed because she attempted to solicit, or "poach," clients of Cambridge Hair for the benefit of her new enterprise. Cambridge Hair further alleges that the dismissal was affected on the basis of:

a) Theft - giving unauthorised discounts and nil charges to family and friends > > b) Breaching Intellectual Property Law's - confidential client information > > c) Data Transfer

• [25] Cambridge Hair further assert that Ms Wilkinson behaved inappropriately during the meeting on 15 July 2025 by making accusatory statements about other employees, including pointing towards staff in the salon area and stating words to the effect that "they're all the problem, not me".

• [26] As Cambridge Hair is a small business, the Small Business Fair Dismissal Code (the Code) applied to Ms Wilkinson's employment. It is therefore necessary to consider whether Cambridge Hair complied with the Code in relation to the dismissal. The Code provides:

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job. The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity. A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.

• [27] In Pinawin v Domingo[9], a Full Bench of then Fair Work Australia stated the following concerning the test to be applied for summary dismissal under the SBFDC at [29]:

"There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee's conduct was sufficiently serious to justify immediate dismissal.

Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held."

• [28] Fair Work Regulation 1.07 defines serious misconduct.[10] Serious misconduct is conduct that is wilful or deliberate and that is inconsistent with the continuation of the employment contract.[11] It is also 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.[12] Where serious misconduct is alleged the test for a valid reason for dismissal does not change. The test remains whether the reason was 'sound, defensible or well founded'.[13] A valid reason for dismissal does not require conduct amounting to a repudiation of the contract of employment.[14] Where an employee has been dismissed without notice (summary dismissal) for serious misconduct the Commission may find that, although there was a valid reason for the dismissal, the dismissal was harsh because summary dismissal was a disproportionate response.[15]

• [29] I was provided with screenshots exhibited in the Respondent's submissions showing Ms Wilkinson using her personal Instagram account to contact clients of the Respondent. The Communications indicate that Ms Wilkinson invited those clients to attend her new enterprise and offered to transfer their existing appointments from the Respondent's salon to her new enterprise. This conduct had the capacity to divert revenue and undermine profitability of the Respondent's business. I am satisfied that such conduct constitutes serious misconduct and justified Cambridge Hair bringing the employment relationship to an end immediately.

• [30] It is not disputed that Ms Wilkinson contacted clients of the Respondent. Both parties accept that Ms Wilkinson initiated communication with those clients for the purpose of inviting them to attend her new enterprise.

• [31] On the evidence before me, I find that Ms Wilkinson engaged in conduct involving the solicitation of the Respondent's clients for the purpose of directing them to her new business. I find that this conduct was sufficiently serious to justify immediate dismissal per the first criterion detailed in Pinawin v Domingo.[16]

• [32] I am further satisfied that Ms Gay's belief was based on reasonable grounds. This is supported by the screenshot evidence provided by one of Cambridge hair's clients, which establishes that Ms Wilkinson was attempting to solicit or "poach" Cambridge Hair's clientele for her new business. Per Pinawin v Domingo,[17] I find that the second criterion is also satisfied, as the Respondent's belief that Ms Wilkinson engaged in serious misconduct was based on reasonable grounds. The screenshot evidence provided by the Respondent's client constitutes a reasonable basis for that belief.

• [33] Ms Wilkinson contends that, during the meeting on 15 July 2025, Cambridge Hair did not provide her with evidence supporting the allegation that she had been soliciting clients. Ms Wilkinson further submits that she was not afforded the opportunity to have a support person present at that meeting. I note, however, that these considerations do not bear upon the fairness of a summary dismissal where the employer has formed a reasonable belief that the employee has engaged in serious misconduct. In such circumstances, Cambridge Hair is not required to disclose evidentiary material at the meeting or to offer Ms Wilkinson the presence of a support person. Accordingly, these matters are not relevant in the present case.

• [34] There is no substantial evidence before me to support the allegations of theft or breaches of intellectual property. While it is apparent that confidential client information was used by Ms Wilkinson to contact Cambridge Hair's clients, it is not clear whether the reference to "data transfer" in Cambridge Hair's submissions relates specifically to the taking or copying of client records. In any event, these allegations are not supported by probative evidence.

• [35] Further, there is no contemporaneous or corroborated evidence before me regarding what occurred during and after the meeting on 15 July 2025. The competing accounts constitute untested verbal assertions. I therefore do not rely on these matters in forming my reasoning or conclusions in the decision.

• [36] The Respondent's jurisdictional objection is upheld. Ms Wilkinson's unfair dismissal application is dismissed. I order accordingly.

[1] P.7-8 of the DCB - Attachment to Form F2

[2] P.8-9 of the DCB - Attachment to Form F2

[4] P.10 of the DCB - Attachment to Form F2

[5] P.10-11 of the DCB - Attachment to Form F2

[7] P.50 of the DCB - Respondent's Submissions

[8] P.57 of the DCB - Respondent's Submissions

[9] Pinawin v Domingo [2012] FWAFB 1359.

[13] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), [(1995) 62 IR 371 at p. 373]; cited in Annetta v Ansett Australia Ltd (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000) at para. 10, [(2000) 98 IR 233].

[14] Annetta v Ansett Australia Ltd (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000) at para. 10, [(2000) 98 IR 233].

[15] Potter v WorkCover Corporation (Ross VP, Williams SDP, Foggo C, 15 June 2004) at para. 55, [(2004) 133 IR 458]. See also Annetta v Ansett Australia Ltd (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000) at para. 10, [(2000) 98 IR 233].

[16] Pinawin v Domingo [2012] FWAFB 1359.

[17] Pinawin v Domingo [2012] FWAFB 1359.

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