//
[2026] FWC 555
General information, not legal advice.
Fair Work Commission
2026-02-23
Original judgment source is linked above.
[2026] FWC 555 [Note: An appeal pursuant to s.604 (C2026/3835) was lodged against this decision.]
s.394 - Unfair dismissal
Application for relief from unfair dismissal - serious workplace health and safety breach -valid reason related to conduct - dismissal not unfair - application dismissed
[1] On 20 August 2025, Mr Anton Tikhanovsky made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) for a remedy, alleging that he had been unfairly dismissed from his employment with IDK Pty Ltd (IDK).
[3] For the reasons outlined below I find that there was a valid reason for Mr Tikhanovsky's dismissal and further, that the dismissal was not harsh, unjust, or unreasonable. It was therefore not unfair.
[4] There is no dispute, and I find for the purposes of s.396 of the FW Act, that:
[6] Mr Tikhanovsky was represented at the determinative conference by his sister, Ms Anna Armstong. Mr Tikhanovsky gave evidence on his own behalf, as did Ms Armstrong.
[7] IDK was represented by Ms Mariam Noorzai and Ms Amanda Said. The following witnesses gave evidence on behalf of IDK:
Background and timeline leading to the dismissal
[8] Prior to his dismissal, Mr Tikhanovsky had been employed by IDK in the role of casual Process Worker since 3 June 2022.
[9] Mr Tikhanovsky's employment was subject to a contract of employment and the Food, Beverage and Tobacco Manufacturing Award 2020. Mr Tikhanovsky's role was classified as a Level 3, and he was paid an hourly rate that was inclusive of 25% casual loading.
[11] On 7 July 2025, Mr Tikhanovsky was working in the Ambient Product Store. At approximately 1:30pm Mr Tikhanovsky was attempting to retrieve a pallet from the racking with a forklift. Mr Tikhanovksy made multiple attempts to unload a pallet from the pallet racking unsuccessfully. The pallet racking collapsed which resulted in boxes containing salsa products (raw material) dropping onto the racking and the floor of the Aisle on the other side of the pallet racking.
[12] There is no dispute that Mr Tikhanovsky then left the forklift, with a suspended load, removed his Hi-Visibility clothing (PPE) and began cleaning the spilled product on the floor with the assistance of two other employees.
[13] Once the floor was cleaned, Mr Tikhanovsky was said to have climbed the pallet racking up to the second level in order to recover raw material from between the pallet racking. Mr Tikhanovsky began to load the damaged and loose stock onto a forklift, driven by coworker Mr Saya Lee.
[14] Mr Vitkus was working in the warehouse that day. Mr Vitkus is not Mr Tikhanovsky's direct supervisor but is the Production Supervisor for the Juice Outwards Goods Department. Mr Vitkus observed Mr Tikhanovsky preparing to climb down from the racking and instructed that he stop what he was doing. Mr Vitkus then instructed Mr Lee to retrieve the Gopher (a small, elevated work platform) and Mr Tikhanovsky was safely lowered to the ground.
[15] Mr Vitkus then assisted Mr Tikhanovsky to retrieve the empty pallet from the racking on the other side before completing a hazard report form and notifying Mr Tikhanovsky's supervisor, Mr Jonas Kohi of the incident. The following day, 8 July 2025, Mr Damien Fiege, HSE Advisor for IDK, commenced an investigation into the incident.
[16] The parties disagree as to the many of the facts and circumstances of the incident, as such, it is necessary for me to consider the evidence further before making findings of fact. There is, however, no dispute that it was Mr Tikhanovsky's conduct in relation to this incident that led to his dismissal.
[17] Between 9 and 11 July 2025, Mr Fiege conducted interviews with:
[18] Interviewees were asked a series of questions regarding the incident. Mr Fiege took contemporaneous notes, copies of which were attached to his witness statement.
[19] Mr Tikhanovsky's interview was the last to be conducted on 11 July 2025. It was Mr Fiege's evidence that having conducted the other interviews he had formed the view that the incident was of such a serious nature that it should be fully investigated. As such, Mr Fiege sought the assistance of Ms Shay Mathew, Senior HR at IDK, regarding the process for the investigation. Consequently, prior to Mr Tikhanovsky's interview, Ms Mathew had prepared and signed a letter, confirming that Mr Tikhanovsky was to be stood down on full pay whilst an investigation was undertaken into the alleged serious misconduct.
[22] It is Ms Mathew's evidence that she then used Mr Fiege's findings to draft correspondence titled "Invitation to Disciplinary Meeting", that was sent to Mr Tikhanovsky on 21 July 2025.
"It is alleged that on 8 July 2025, you deliberately engaged in unsafe behaviour in the workplace. Specifically, it is alleged that you did the following:
[26] On 23 July 2025, Mr Tikhanovsky attended the meeting with Ms Mathew. Mr Tikhanovsky did not bring a support person to the meeting. The minutes of the meeting record the questions asked by Ms Mathew and Mr Tikhanovsky's responses, and indicate that Mr Tikhanovsky was shown the CCTV footage, though Mr Tikhanovsky asserts that the CCTV footage was not shown to him. The evidence suggests that Mr Tikhanovsky was at least shown stills and screenshots of the relevant conduct and did not seek to view the footage or any further stills. IDK refer to this meeting as the "disciplinary meeting"
[29] The follow-up meeting did not occur the following day as initially proposed but did occur on 30 July 2025. IDK refer to this meeting as the "outcome meeting". Ms Armstrong attended as Mr Tikhanovsky's support person. The parties have differing views as to the purpose of this meeting. IDK contend the purpose of the meeting was to provide Mr Tikhanovsky with the outcomes of the investigation, however Mr Tikhanovsky's evidence suggests he held an expectation that he would have a further opportunity to discuss the allegations.
[30] Notwithstanding the above, the parties agree that at the commencement of the meeting, Ms Mathew advised Mr Tikhanovsky that the allegations had been substantiated and that as a result, they were considering terminating his employment. It is IDK's submission that Mr Tikhanovsky was provided with an opportunity to respond to that proposal.
[31] Ms Armstong's evidence appears to align with this, at least to the extent that there was a discussion about termination, in which Ms Armstrong strongly argued for Mr Tikhanovsky to be given a "second chance".
Was the dismissal harsh, unjust or unreasonable?
[33] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[35] I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant's capacity or conduct
[38] It is relevant in this matter that section 387(a) includes a specific reference to the effect that a person's conduct may have had on the safety and welfare of other employees.
[40] After reviewing Mr Tikhanovsky's submissions, my understanding is that it is submitted that there was no valid reason as the incident was due to IDK's safety failures and not Mr Tikhanovsky's misconduct.
[41] Additionally, Mr Tikhanovsky contends in his F2 that his actions were an emergency response to an unstable pallet stacked by another worker, not misconduct and that his actions prevented greater harm to workers and property, fulfilling his duty of care. Mr Tikhanovsky goes on to state in his F2 that the supervisor team leader was present, which contradicts IDK's claim of "not reporting", and that the supervisor directed the use of unsafe equipment (Gopher Elevated Platform without lock) which he submits exposes IDK's own safety breaches.
[42] During the hearing, Ms Armstrong submitted that there was no valid reason as the alleged misconduct occurred in circumstances where there was no supervisor rostered to Mr Tikhanovsky's department and that Mr Tikhanovsky was not sure who his manager or supervisor was at the time. Further it was suggested that there was no procedure or training in dealing with such a situation.
[43] As to the incident itself. it was Mr Tikhanovsky's evidence that when he attempted to retrieve the pallet from the racking using his forklift, it began to collapse because the load was unstable. Mr Tikhanovsky says it was unstable because it had not been properly wrapped, an issue Mr Tikhanovsky says was not uncommon.
[45] On the other hand, IDK submits that according to the CCTV footage, Mr Tikhanovsky is clearly seen trying to load and unload boxes of product several times from the pallet racking. Mr Tikhanovsky is seen attempting to unload the entire pallet from the racking, causing the boxes of products to fall to the other side of the pallet racking. The pallet was not stuck prior to Mr Tikhanovsky attempting to unload and load the product, but only when he attempted to remove the entire pallet, causing the product to then become stuck in between the pallet racking.
[46] IDK say that Mr Tikhanovsky attempted to initially unload the product off the pallet, when he was unsuccessful, the product was left on top of the pallet in an unstable position. When Mr Tikhanovsky attempted to remove the entire pallet, the unstable product on the top fell off the pallet.
[47] IDK submit that Mr Tikhanovsky has profoundly failed to provide any facts, matters or
any circumstances to substantiate his claim that the incident was a result of IDK's "systematic safety failures".
[48] Given Mr Tikhanovsky's tenure with IDK, and further, his active involvement in toolbox meetings, IDK submit he was more than aware of what machinery and equipment was readily available to him and the processes he must follow when product or pallet racking is damaged. IDK's evidence included CCTV footage of the incident as well as relevant processes and procedures including signed verification of competency certificates (VOC's), signed by Mr Tikhanovsky relating to forklift safety procedures , loading dock operations, dock safety gate procedures and packing paperwork as well as evidence of Mr Tikhanovsky's attendance at various toolbox training meetings, in particular training held in April 2025 on the topic of "Incident reporting".
[49] IDK suggest these documents demonstrate that Mr Tikhanovsky was fully and unambiguously aware of what was expected of him when such an incident occurred, his misconduct was in fact willful, deliberate and dishonest. Therefore, his actions are inconsistent with the contract of employment and caused a serious and imminent risk to the health and safety of himself, others and IDK's business.
[50] IDK submits that they undertook an arduous and detailed investigation to ensure that it was accurate in its allegations against Mr Tikhanovsky and any other employees who were involved in the incident.
[51] As such, it is IDK's position that the Commission will conclude that Mr Tikhanovsky was dismissed for a valid reason and that reason was sound, defensible and justifiable based on an objective analysis of the relevant facts; and not for a reason which was capricious, fanciful, spiteful and unsound.
[52] CCTV evidence relating to the incident was made available to the parties in advance of the determinative conference. The CCTV evidence was provided by way of footage from two separate cameras and a range of stills. The first camera was in the aisle that Mr Tikhanovsky's forklift remained (Aisle 1), and the second in the aisle to the left (Aisle 2), where the product that fell from the collapsed racking had landed.
[53] Ms Armstrong maintained the view that the CCTV footage had been cut or otherwise edited, and that sections which may have shown IDK to have been at fault had been removed. In response Mr Fiege explained that the cameras do not record indefinitely, rather they are triggered by motion sensors and switch on and off depending on activity. Mr Fiege spent some time talking to me through how the footage was captured and pointed to examples of what appear to be gaps, which correspond with the cessation of movement or the person or machine moving out of range of the motion sensors. Mr Fiege accepts that as a result footage of the full incident does not exist. Mr Fiege confirmed that all available footage was provided. I accept Mr Fiege's evidence in this regard and have not been convinced that the footage has been tampered with in any way.
[54] The footage was played during the conference, and all parties were provided the opportunity to make submissions about what was being shown as it was viewed. The footage commences in Aisle 1 where Mr Tikhanovsky can be seen making his first attempt to retrieve the pallet with his forklift. Mr Tikhanovsky makes much of the fact that the pallet he is trying to retrieve is "double stacked" (not sitting on the racking but stacked on top of another pallet) and that the pallets were poorly wrapped. It is important to note that whilst the initial investigation did look into the cause of the initial collapse, this was not the conduct for which he was dismissed. Mr Tikhanovsky was dismissed as a result of conduct, found to have occurred after the racking had collapsed. As such, what caused the pallet to collapse is of limited relevance to my considerations.
[55] In any case, it is clear that after making several attempts to lift the pallets, the lower one collapsed, causing the pallet on the top to slip off, losing much of its contents into the back of the racks. After this occurs, Mr Tikhanovsky steps out of the forklift, leaving it extended with the load still attached. The forklift remained in this position, unattended for the entirety of the incident. I find this was a clear breach of the workplace health and safety requirements, guidelines and procedures of which Mr Tikhanovsky was aware.
[56] Having left the forklift, Mr Tikhanovsky is then seen to assess to situation from the ground, before moving out of of the cameras range.
[57] The next series of stills show Mr Tikhanovsky in Aisle 2. In clear view are several boxes of raw product that have hit the ground and smashed open on the concrete floor. Mr Tikhanovsky and Mr Lee are seen clearing up the spill. Mr Tikhanovsky is not wearing his Hi-Vis Jacket.
"If you do not have the PPE, the PPE does not fit you correctly, is damaged or is not fit for purpose, DO NOT START THE TASK!!!! Inform your supervisor and they will supply you with the adequate PPE. THEN you can start the task!"[24]
[60] The next video is taken from the camera in Aisle 2. Mr Tikhanovsky comes into shot as he emerges, having crawled through the racks from Aisle 1, into Aisle 2. Mr Tikhanovsky says he did this to avoid other forklifts, suggesting it was safer than walking around. It was Mr Tikhanovsky's evidence that the racking on this level was empty however the video clearly shows him stepping over and around product. IDK confirmed this was not standard practice and should not have occurred. I find this was a clear breach of the workplace health and safety requirements, guidelines and procedures of which Mr Tikhanovsky was aware.
[61] The next video from Aisle 2 commenced with Mr Tikhanovsky standing on the outside of the second level of the racking, approximately 2 meters off the ground, and not wearing the required PPE. Mr Lee is sitting in a forklift that is parked alongside the racks where Mr Tikhanovsky is situated.
[62] During this video, Mr Vitkus is seen in the background driving a forklift in the end aisle, some distance from where Mr Tikhanovsky and Mr Lee are situated. Mr Vitkus maintains that at this stage, he had not noticed what Mr Tikhanovsky was doing and as such had no reason to approach. Curiously, whilst maintaining on one hand that Mr Tikhanovsky was doing nothing out of the ordinary, Ms Armstrong also suggested that Mr Vitkus, as the supervisor, should have seen what was going on, and come over to assist. I prefer Mr Vitkus's evidence on this point and accept that at this stage of the footage, Mr Vitkus did not notice that anything was out of the ordinary or requiring his attention.
[64] Ms Noorzai put to Mr Tikhanovsky that he knew that he was not supposed to be climbing the racking, which is why no ladders are provided. Ms Armstrong responded by again suggesting that "it was not high for him - only about 2 meters high". When I asked Mr Tikhanovsky directly whether he knew that he was not supposed to be climbing the racking, he maintained that he was not aware of any specific policy.
[65] Ms Noorzai then took me to the Forklift/Walk behind VOC instructions, which Mr Tikhanovsky had signed as completed on 31 October 2023. Ms Armstrong noted the VOC did not specifically include an instruction not to climb the racking. Both Mr Vitkus and Mr Fiege noted that Mr Tikhanovsky was a licensed forklift driver and would have known that climbing racks was prohibited. It is also noted that the purpose of a forklift, and pallets is to negate the need for someone to physically load material from heights, and that the racking systems have not been designed for the purpose of manual handling.
[66] In any event, the absence of a specific instruction does not negate Mr Tikhanovsky's responsibility to assess the risk involved before acting. In his own admission, Mr Tikhanovsky had identified a hazard that required an emergency response. Even in these circumstances, common sense would dictate that climbing anything without the appropriate fall protection would present a further hazard. I cannot then accept that Mr Tikhanovsky, an experienced, licensed forklift driver, would not have been aware of the hazards involved in such conduct. This view is supported by Mr Tikhanovsky's own submissions in which he acknowledges the risk of his actions, stating:
"I was forced to climb the racking without fall protection because YouFoodz failed to provide safe alternatives"[27]
[68] As the video progresses, Mr Lee can be seen using his forklift to raise an empty pallet up to where Mr Tikhanovsky is standing. At the same time, Mr Tikhanovsky ducks under the beam above and moves further into the rack. He then begins removing a number of loose boxes and placing them on the pallet which is suspended to his left. Mr Lee unloads the first pallet and returns with a second. Mr Tikhanovsky can be seen inside the racking, directing Mr Lee. Once the second pallet is in place, Mr Tikhanovsky begins to load it with what appears to be the last of the boxes, many of which are broken, exposing raw product. As Mr Lee attempts to remove the second pallet, the unsecured boxes start to shift, prompting Mr Tikhanovsky to adjust them. Mr Lee attempts to move the pallet again and the unsecured boxes continue to shake and shift. Mr Tikhanovsky has made much of his view that the boxes on the slipped pallet were poorly wrapped, contending that such breaches contributed to the racking failure. It is therefore somewhat surprising to see Mr Tikhanovsky proceeding to load completely unwrapped and unsecured boxes and debris onto a pallet and suggesting that this was ordinary and acceptable.
[69] Mr Tikhanovsky's actions in this regard were not specifically noted as a reason for his dismissal, however the risk of the boxes falling while being transported was evident from the footage and has been afforded appropriate weight in my considerations.
[70] At this same time, Mr Vitkus can be seen driving along the end Aisle towards Aisle 1 but then reverses back into Aisle 2. It was Mr Vitkus's evidence that he could see the forklift driver had a load suspended and that he looked towards Mr Vitkus, indicating to him that something was wrong. He said that Mr Lee kept looking at him then looking up. It was at this point that Mr Vitkus noticed Mr Tikhanovsky in the racks. Mr Vitkus is then seen moving his forklift away. As he does this, he sees Mr Tikhanovsky about to start climbing down. Mr Vitkus motions to Mr Tikhanovsky to stop, which he does.
[71] I accept Mr Vitkus' evidence that he then asked Mr Lee if he could drive the Gopher and that Mr Lee confirmed he could. Mr Vitkus then asked Mr Lee to retrieve the Gopher so that Mr Tikhanovsky could be safely lowered from the rack. Mr Vitkus is then seen moving his forklift out of the aisle to make way for the Gopher but continues to supervise the situation. Mr Lee then arrives with the Gopher and Mr Tikhanovsky is safely lowered to the ground.
[72] Again, somewhat curiously given the earlier view that Mr Tikhanovsky was just a step off the ground, Ms Armstrong asserted that the use of the Gopher to retrieve Mr Tikhanovsky had somehow put Mr Tikhanovsky's life in danger. I do not accept this, and prefer Mr Vitkus' evidence that, having assessed the situation, he felt the Gopher, which is rated to hold 370 kilograms, was the most appropriate option to get Mr Tikhanovsky safely to the ground.
[73] I accept that Mr Tikhanovsky's intentions were to get the spill cleared and get back to work as quickly as possible, however the fact remains that rather than notifying his supervisor of the incident immediately, Mr Tikhanovsky took matters into his own hands. Pursuant to the WHS Act, IDK is the Person Conducting a Business or Undertaking (PCBU) responsible for ensuring the safety of all persons at their sites. PCBU's commonly discharge their responsibilities through the development of policies and procedures and by requiring that incidents, such as the one that occurred in this matter, are immediately reported so that a relevant authorized and qualified person can make the call as to the safest and most appropriate response. IDK have done just this.
"Any incident involving a forklift must be reported to your supervisor immediately. Any damage to the forklift, racking, facilities structures, or other plant must be immediately reported to your supervisor"[30]
[76] I have not been convinced by Mr Tikhanovsky's suggestions as to why he did not immediately report the incident to his supervisor. I do not accept that he did not know who to report it to, nor that there was no one readily available. Mr Vitkus and others were clearly in the vicinity and could have been notified. Had Mr Vitkus or others been notified, it is reasonable to conclude that a full risk assessment would have been undertaken and a safe method for recovering the damaged pallets, cleaning the spill, and securing the loaded forklift could have been implemented. Considering all of the facts and circumstances, I find that Mr Tikhanovsky failed to report both the collapsed pallet, and the damage to raw material in accordance with established workplace procedures and instead put himself and others in danger attempting to fix the issue himself.
[77] Whilst not being relied upon by IDK as a reason for Mr Tikhanovsky's dismissal, I accept Mr Tikhanovsky's submission with respect to any suggestion that he failed to file the appropriate incident reports after the fact. I accept it was reasonable for him to have presumed that he did not need to take any further action in this regard, because Mr Vitkus had done so himself.
[78] Having considered the evidence and submissions of the parties I find that:
[79] Having regard to the matters I have referred to above, I find that there was a valid reason for the dismissal related to Mr Tikhanovsky's conduct. This consideration does not weigh in favour of a finding that the dismissal was unfair.
Was the Applicant notified of the valid reason?
[82] Mr Tikhanovsky submitted that the notification was "inadequate" because:
[83] IDK submitted that Mr Tikhanovsky was notified of the valid reason on the basis that:
[85] Having regard to the matters referred to above, I find that Mr Tikhanovsky was notified of the reason for his dismissal prior to the decision to dismiss him being made, in explicit, plain and clear terms. This consideration does not weigh in favour of a finding that the dismissal was unfair.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
[86] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee's employment.[39]
[88] Mr Tikhanovsky submitted that the process was procedurally unfair and that the investigation was flawed, with no genuine opportunity afforded for him to respond, including Mr Tikhanovsky being denied access to the full CCTV footage.
[89] IDK denies verbally denying Mr Tikhanovsky or similarly access to the CCTV footage. However, during the disciplinary process, Mr Tikhanovsky did not request to see the full CCTV footage, therefore IDK was not able to deny request/access if such request or access was not made. Nonetheless, IDK submits that it is not obligated to give Mr Tikhanovsky exclusive access to its security system.
[91] IDK submits the allegations were substantially identified for Mr Tikhanovsky to be able to be provided with a fair chance to respond to them. It is submitted that both parties went through each and every event that occurred on the day of the incident. Additionally, whilst IDK did not provide the entirety of the CCTV footage, Mr Tikhanovsky was shown images extracted from the CCTV footage illustrating the key aspects of the incident.
[92] There is no legal or procedural requirement for the Respondent to provide a recording of the footage to the Applicant. In any event, I prefer the evidence of Ms Mathew, that she offered Mr Tikhanovsky an opportunity to review the footage, which he did not take up.
[93] Further, I note that two disciplinary meetings were conducted on 23 July 2025, followed by a further meeting on 30 July 2025, with the dismissal occurring on 31 July 2025.
[94] In those circumstances, I am satisfied that Mr Tikhanovsky was afforded ample time and reasonable opportunities to respond to the allegations and to the reason for his dismissal prior to the decision to dismiss being made. This consideration does not weigh in favour of a finding that the dismissal was unfair.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
[95] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[96] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
"This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them."[44]
[97] It is relevant to note that Mr Tikhanovsky was without a support person only at the first meeting held on 23 July 2025. However, at the subsequent meeting on 30 July 2025, Mr Tikhanovsky was accompanied by Ms Armstrong, who attended as his support person.
[99] IDK submitted that it did not unreasonably refuse to allow Mr Tikhanovsky to have a support person present to assist at discussions relating to the dismissal on the basis that:
[101] In all circumstances, I find that IDK did not unreasonably refuse to allow Mr Tikhanovsky to have a support person present at discussions relating to the dismissal. This consideration does not weigh in favour of a finding that the dismissal was unfair.
Was the Applicant warned about unsatisfactory performance before the dismissal?
[102] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent's enterprise be likely to impact on the procedures followed in effecting the dismissal?
[105] Having regard to the matters above, I find that the size of the IDK's enterprise was not likely to impact on the procedures followed in effecting the dismissal. I have treated this consideration as neutral.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent's enterprise be likely to impact on the procedures followed in effecting the dismissal?
[106] Mr Tikhanovsky submitted that the "Respondent had dedicated HR expertise (HR Business Partner Shay Mathew) throughout the process. The presence of HR expertise increases the harshness because:
(a) Procedural failures are inexcusable when conducted by HR professional;
(b) HR should have ensured CCTV access, genuine opportunity to respond, meaningful support, consistent policies, accommodation for impaired capacity, and progressive discipline".[53]
[107] IDK submitted that it relied largely on external human resources advisors for assistance and that this fact is neutral as it had the opportunity to seek advice from a human resources expert.
[108] Having regard to the foregoing, I find that IDK did not lack dedicated human resource management specialists and expertise. I have treated this consideration as neutral.
[109] Mr Tikhanovsky submitted that the following other matters are relevant to the Commission's consideration of whether the dismissal was harsh, unjust or unreasonable:
a) "Length of service (3+ years continuous service, regular 38+ hours);
b) Management involvement (supervisor witnessed and directed actions per F3 admission, including directing Applicant to use unauthorized gopher);
c) WHSQ enforcement notices (issued on or around 27 October 2025 confirm Respondent's WHS breaches);
d) Severe hardship (financial scam, suspension wage shortfall $3,053, depression, anxiety, subsequent job loss at Digger);
e) Strong mitigation (69+ applications, rapid re-employment twice);
f) Ongoing loss ($400-600/week lost penalty rates, Christmas period loss, probation instability);
g) Disproportionate (dismissal for emergency response to employer-created hazards);
h) Inconsistent treatment (May 2024 "serious misconduct" received warning; July 2025 received dismissal);
[110] IDK did not make any written submissions as to any other matters that may be relevant to my consideration of whether the dismissal was harsh, unjust or unreasonable.
[111] An employee's long and satisfactory work performance or history may be taken into consideration under s.387(h) of the FW Act and, depending on all the circumstances, may weigh in favour of a conclusion that the dismissal of the employee was harsh, unjust or unreasonable.[55] However, in the present case, I do not consider that a period of just over three years of employment warrants special or determinative weight. Accordingly, I treat this matter as neutral to my consideration.
[112] I do not identify any material in the Form F3 or elsewhere indicating that the Supervisor directed Mr Tikhanovsky to engage in any unauthorized conduct. Accordingly, I treat this matter as neutral to my consideration.
[113] Whilst Mr Tikhanovsky submitted that Workplace Health and Safety Queensland issued notices confirming breaches by IDK on or about 27 October 2025, there is no material evidence before me to substantiate that assertion, or any specific details as to the nature of the alleged breaches. In any case, had such evidence been provided, I have not been convinced it would have impacted my conclusions regarding Mr Tikhanovsky's conduct. I treat this matter as neutral to my consideration.
[114] Mr Tikhanovsky's submissions concerning his ongoing loss, despite his strong mitigation efforts, are matters relevant to the assessment of compensation. They are not, however, relevant to the determination of whether the dismissal was harsh, unjust or unreasonable.
[115] Similarly, whilst I appreciate Mr Tikhanovsky's submissions regarding the impact of the decision on his mental health, I have seen no evidence to suggest that this was a known factor to IDK at the time they made the decision to dismiss him. Accordingly, I treat this factor as neutral to my consideration.
[117] Mr Tikhanovsky submitted that he was subjected to inconsistent treatment when compared with IDK's response to an incident in May 2024 involving the taking of company property intended for disposal, as contrasted with the incident of 7 July 2025. I do not accept that this constitutes a valid and meaningful comparison. The two matters are not analogous in nature, character, or seriousness, and do not give rise to any proper inference of inconsistent disciplinary treatment. Accordingly, I treat this matter as a neutral consideration.
[118] Mr Tikhanovsky's claim that he was escorted from the workplace without an opportunity to say goodbye to colleagues, while potentially distressing, is not relevant to the determination of this unfair dismissal application. Accordingly, I treat this matter as a neutral consideration.
[119] Mr Tikhanovsky's claims concerning an alleged "false certificate" are not relevant to my determination, having found that the dismissal was based on a valid reason, namely Mr Tikhanovsky's misconduct. Accordingly, I treat this matter as a neutral consideration.
[120] Mr Tikhanovsky's conduct on 7 June 2025 represented multiple breaches of IDK's health and safety requirements, guidelines and procedures and created a serious risk to the safety of himself and others.
[121] Having considered the entire factual matrix, I have found Mr Tikhanovsky's conduct to be a valid reason for his dismissal. Consequently, IDK's decision to dismiss Mr Tikhanovsky was sound, defensible and well founded.
[122] Having considered each of the matters specified in s.387 of the Act, I am not satisfied that Mr Tikhanovsky's dismissal was harsh, unjust or unreasonable. Accordingly, I find that his dismissal was not unfair. On that basis the application pursuant to s.394 is dismissed.
M Noorzai, Solicitor, of Irwell Law, for the Respondent.
A Said, Solicitor, of Irwell Law, for the Respondent.
[1] P.55 of the DHB - Termination Letter dated 31 July 2025.
[2] P.361 - Written Submissions of the Respondent.
[3] Fair Work Act 2009 (Cth) s 399.
[4] P.65 of the DHB - Employment Contract.
[5] P.530 of the DHB - Witness Statement of Damian Fiege.
[6] P.530 of the DHB - Witness Statement of Damian Fiege.
[7] P.49 of the DHB - Invitation to Disciplinary Meeting.
[8] P.49 of the DHB - Invitation to Disciplinary Meeting.
[9] P.49 of the DHB - Invitation to Disciplinary Meeting.
[10] P.49 of the DHB - Invitation to Disciplinary Meeting.
[11] P.525 of the DHB - Witness Statement of Shay Mathew.
[13] P.56 of the DHB - Termination Letter.
[14] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[15] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373.
[17] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, 685.
[18] Edwards v Justice Giudice [1999] FCA 1836, [7].
[19] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
[21] P.275 of the DCB - Written Submissions of the Applicant.
[22] P.268 of the DCB - Final Submissions of the Applicant.
[23] Video recording of Hearing at 1:01:35.
[24] P.504 of the DCB - Exhibit 3 of the Written Submissions of the Respondent.
[25] P.398 of the DCB - Exhibit 3 of the Written Submissions of the Respondent.
[26] P.356 of the DCB - Annexure B to Form F3.
[27] P.33 of the DCB - Attachment to Form F2.
[28] P.528 of the DCB - Witness Statement of Damian Fiege.
[29] P.357 of the DCB - Exhibit 3 of the Written Submissions of the Respondent.
[30] P.399 of the DCB - Exhibit 3 of the Written Submissions of the Respondent.
[31] P.505 of the DCB - Exhibit 3 of the Written Submissions of the Respondent.
[32] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
[33] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[34] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[36] P.281 of the DCB - Written Submissions of the Applicant.
[37] P.366 of the DCB - Written Submissions of the Respondent.
[38] P.40 of the DCB - Detailed Response of the Applicant; P.366 of the DCB - Written Submissions of the Respondent.
[39] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
[40] RMIT v Asher [2010] FWAFB 1200; (2010) 194 IR 1, 14-15.
[41] Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1, 7.
[42] Video recording of Hearing at 2:30:19.
[43] Video recording of Hearing at 2:32:24.
[44] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
[46] P.13 of the DCB - Attachment to Form F2.
[47] P.14 of the DCB - Attachment to Form F2.
[48] P.43 of the DCB - Attachment to Form F2.
[49] P.367 of the DCB - Written Submissions of the Respondent.
[50] P.50 of the DCB - Invitation to Disciplinary Meeting.
[51] P.282 of the DCB - Written Submissions of the Applicant
[52] P.367 of the DCB - Written Submissions of the Respondent.
[53] P.283 of the DCB - Written Submissions of the Applicant
[54] P.283 of the DCB - Written Submissions of the Applicant
[55] Telstra Corporation v Streeter [2008] AIRCFB 15, [27].
[56] Gelagotis v Esso Australia Pty Ltd t/a Esso [2018] FWCFB 6092, [117].
Printed by authority of the Commonwealth Government Printer
Anton Tikhanovsky
IDK Pty Ltd [2026] FWC 555
(1995) 62 IR 371
(1996) 142 ALR 681
(2000) 98 IR 137
(2010) 194 IR 1
(1995) 60 IR 1