Fair Work Act 2009

s 394 - Unfair dismissal

Kaldome Investments Pty Ltd - ATF Kaldome Unit Trust

Application under s 589(1) to vacate directions and adjourn proceedings

1 Background to application under s 589(1)

• [1] On 8 May 2025, Ashleigh Winikerei (the Applicant) made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Cth) (the Act) in relation to her dismissal from Kaldome Investments Pty Ltd (the Respondent). Prior to her dismissal the Applicant was employed by the Respondent as a café manager on a full-time basis at its café in Secret Harbour, Western Australia.

• [2] The Respondent opposes the application on the grounds that the dismissal was not unfair but raises no jurisdictional objections to the application. Insofar as it is relevant, I am satisfied that the application was made within the 21-day period required by s 394(2) of the Act and that the Applicant was a person protected from unfair dismissal, as she had served the minimum employment period and earned less than the high-income threshold. The case presented was not one of a genuine redundancy and the Respondent is not a small business employer, rendering the Small Business Fair Dismissal Code irrelevant to this matter.

• [3] The Applicant was dismissed on the grounds of serious misconduct. The letter of termination outlined that the Applicant had:

a) falsified timesheet records;

b) failed to follow the reasonable direction of her manager without explanation;

c) failed to follow company policies, including those relating to tender and cash management and banking; and

• d) withheld information relating to the location of missing cash and cash deposit bags belonging to the Respondent.[1]

• [4] Specifically, the letter of termination set out the following regarding the cash deposit bags:

The discussion moved to your failure to address a direct instruction of your manager, Michael Davy, Franchise Owner of Dome Secret Harbour, who requested that you deposit all outstanding cash deposit bags at the bank on Friday the 11 of April. This was an instruction that you did not follow, and when asked for an explanation, you claimed to have not seen the message.

However, regardless of the message, the requirement to bank all outstanding Cash Deposit Bags on a Friday has been a clear, enduring and ongoing requirement for many years with your employer, and one that you failed to do on this occasion and were unwilling to provide an explanation for during this meeting.

You once again stated that you would reply to all questions in writing in 7 days' time.

It was then communicated that you had been seen on Monday the 14th of April, via CCTV, in the office, opening, recounting and adjusting amounts of cash in various cash bags - and then removing all outstanding cash bags from the café.

That all outstanding Cash Bags had been removed by you was confirmed on Monday evening, by Elaine Fortmann upon inspection of the safe in person at Dome Secret Harbour, and verbally by the Supervisor on Duty who was present when you removed them.

The safe was also counted, and it was established that a further $2218 was missing from the Safe Float and Till Floats, and you were also unwilling to explain this during our meeting.

I explained that some of the cash bags that you had removed had been deposited at the bank, however some had not. I reminded you that the policy that you were aware of, was that when Cash Bags are removed from a café for banking, that the person in possession of the cash bags is to proceed directly to the bank to do so and is not to make any stops or detours along the way.

I then asked you if you had any explanation of where the missing cash deposit bags or the cash missing from the safe was. You responded with the following; you confirmed that you knew where the missing cash bags were, but also that you were unwilling to say where that was - and once again, reiterated that you would only respond to the questions in writing in 7 days' time.

• [5] Directions in respect of the unfair dismissal application were issued on 25 June 2025 and thereafter on 1 July 2025. In the latter directions it was noted that the Applicant had made a 'request that the Deputy President consider staying this matter until [related] criminal proceedings are finalised'. The parties were informed that the statement was insufficient to constitute an application and that if the Applicant intended to make an application to this effect under s 589 of the Act, she or her representative were to use a Form F1 Application and, in addition, file an outline of submissions and any evidence the Applicant wished to rely upon (in the form of witness statements) by no later than 7 July 2025.

• [6] The Applicant subsequently filed an application on 7 July 2025 seeking an order pursuant to s 589(1) of the Act that the directions in matter U2025/5801 (UD Proceedings) issued on 1 July 2025 (the UD Directions) are vacated and the UD Proceedings are stayed pending the outcome of criminal proceedings. The Respondent opposed the application.

• [7] In light of the dispute between the parties in relation to the application, I issued directions for the parties to file any written material in respect of the issue and listed the matter for a hearing for 23 July 2025. Whilst the Applicant had engaged a legal representative to assist her with the preparation of her unfair dismissal application and application under s 589 of the Act, the Applicant was self-represented at hearing. At the commencement of the hearing the Applicant was cautioned in respect of privilege against self-incrimination. Permission was granted to the Respondent to be represented. Parties were informed that the determination of the application under s 589 of the Act, would result in a decision with reasons being published on the Commission website.

1. Circumstances surrounding the Applicant's employment, dismissal and criminal charges

• [8] Whilst uncontentious that the Applicant was employed as a café manager with the Respondent business in a full-time capacity, the circumstances leading to the dismissal of the Applicant are in dispute.

• [9] The Applicant gave evidence that on 14 April 2025, Elaine Fortmann (Fortmann), Branch Manager of the Secret Harbour Dome café, sent her an email.[2] The email set out that the Applicant was suspended for a period of 72 hours and was not required to attend her rostered shifts for the next three days.[3] The reasons for the suspension as set out in the email, were anomalies in time and attendance records relating to the Applicant's roster, her attendance at the café and payroll records.[4]

• [10] The Applicant attended a meeting at the Waikiki Dome café on 17 April 2025 with Fortmann, Catherine Blizard (Blizard), the Human Resources Manager of Dome Coffees Australia, and Michael Davy (Davy), an owner of the Respondent.[5] The Applicant, accompanied by a support person, noted that during the meeting she was informed of the following:

a) after reviewing the Respondent's CCTV records and timesheets, discrepancies were found regarding the number of hours she had worked; and

• b) there was cash missing from the Respondent's cash reserves and she was responsible for the missing cash.[6]

• [11] Whilst the Applicant states that she informed Blizard that she would review the time discrepancies and respond in writing, that there were insufficient specifics for her to respond to, that she was not responsible for any missing cash, and that the Respondent's systems should have been upgraded two years ago and the failure to do so may have lead to errors, Blizard informed her that the allegations were simple enough and she was to respond verbally with no written response being permitted.[7]

• [12] According to the Applicant, there was a break in the meeting for the Respondent to consider her responses, and some 15 minutes later the break concluded, and Blizard informed her that her employment was terminated effective immediately on the grounds of serious misconduct.[8]

• [13] At hearing, Blizard gave evidence that as the Applicant had not informed the Respondent where the missing cash bags were, it was a wise decision not to allow the Applicant's employment to continue.

• [14] The Applicant states that she received a letter of termination on 22 April 2025, some of the contents of which, are extracted at paragraph [4].

• [15] At the hearing, Blizard gave evidence that shortly after the meeting with the Applicant on 22 April 2025, she made a complaint to the WA Police regarding the cash bags (that were purportedly missing) and the safe float. Blizard was accompanied to the police station by Davy and Formann.

• [16] The Applicant reports that on 28 May 2025 the WA Police visited her house to conduct a search. The Applicant states that she was taken to the police station, where she was informed that she had been charged with 'Stealing as a Servant'.

• [17] On 2 June 2025, the Applicant received a prosecution notice from the WA Police. The Prosecution Notice Summons to an 'Accused' (the Applicant), dated 2 June 2025, provided that the alleged offence was 'Stealing as a Servant', alleging that the Applicant, being the servant of Dome, stole $7,464.60, the property of Dome which came into her possession on account of her employment with Dome (Criminal Charge).

• [18] The Statement of Material Facts set out at Annexure AW-4 of the Applicant's witness statement, provides:

The accused is a floor manager of the Dome Cafe and has held this role for approximately 6-years. One of the accused's duties is to deposit the case bags which have been reconciled at the end of the business and deposit them directly to ANZ Bank, Mandurah Forum per her operating procedures.

On Monday 14 April 2025, the accused was at Dome Cafe, 420 Oasis Drive, SECRET HARBOUR 6173 WA and tasked with depositing 17 bags of cash into ANZ.

On Monday the 14th of April 2025, Ashleigh was tasked with taking and depositing 17 bags of cash to the value of $9109.60AUD into ANZ bank. On 15 April 2025, the bookkeeper confirmed a total of $8269.60AUD was outstanding ($5269.60AUD from the cash bags and a $3000.00AUD float).

An internal investigation within the business began and involved suspending the accused's employment while this was ongoing. On 17 April 2025, the accused participated in a meeting and was asked if she knew where the remaining cash bags were and she replied she did.

On Thursday 22 May 2025 the accused was arrested and conveyed to Mandurah Police Station where she declined to participate in an Electronic Record of Interview. The accused was released to summons with the present charge preferred

Police were provided with extensive notes and bookkeeping receipts which still show the balance aforementioned outstanding.

Explanation: "My daughter dropped the bags off".[9]

• [19] It is the Applicant's evidence that on 30 June 2025, she attended the Magistrates Court of Western Australia, where she pleaded not guilty to the Criminal Charge.

• [20] A hearing to deal with the Criminal Charge has been listed for 13 October 2025.[10]

3 Power of the Commission to stay an unfair dismissal application

• [21] It is well established that the Commission has the discretionary power to adjourn a matter by vacating directions issued, effectively granting a stay on proceedings under s 589 of the Act.[11] Whilst the considerations that bear upon the decision to grant a stay will vary according to the individual case, the Full Bench has said that there is considerable latitude regarding the decision to be made, because the discretion is confined only by the subject matter and objects of the Act.[12]

• [22] Proceeding on the basis that the consideration of such an application must be undertaken within the statutory framework for dealing with an unfair dismissal application, the objects of the Act in relation to unfair dismissal applications under Part 3-2 warrant recording:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(b) to establish procedures for dealing with unfair dismissal that:

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the

manner of deciding on and working out such remedies, are intended to ensure that a

"fair go all round" is accorded to both the employer and employee concerned.

• [23] The Commission's central obligation is to provide a fair hearing to parties in proceedings before it. Such an obligation arises directly from s 577(a) of the Act, which directs the Commission to perform its functions and exercise its powers in a manner that 'is fair and just', and from the implied obligation to act judicially. One aspect of the duty to act judicially is the obligation to afford a party a reasonable opportunity to allow her or his case to be put.[13]

• [24] In the ordinary course, the Applicant's unfair dismissal application is at a stage where it would be listed for hearing. In fact, the UD Directions have already issued for the parties to file the materials they seek to rely upon for the purpose of a hearing and a notice of listing for the hearing has issued. Other interlocutory matters would also be attended to, for example, addressing requests for representation by a legal representative or paid agent, programming the matter for conference and attending to any applications under s 590(2) of the Act.

• [25] The consideration of the application before the Commission must be undertaken, as noted, within the statutory framework for dealing with unfair dismissal applications. It is therefore necessary to consider the current application and to apply the principles outlined above within a framework that recognises and balances competing needs, does not introduce unnecessary delay, but provides for a "fair go all round" in its process. I have, in undertaking my consideration of the matter, taken guidance from the decision of Gostencnik DP in Bowker and Others v DP World Melbourne Ltd[14] and the decision of the Full Bench in Visy Board Pty Ltd v Ulben Rustemovski and Fahim Ahmadyar.[15]

• [26] The Respondent submits that the only overlap in the Applicant's evidential material to date in respect of the Criminal Charge and the UD Proceedings, is an alleged admission by the Applicant that she knew where the cash bags were. The Respondent argues that otherwise the two proceedings are based on substantially different matters because the reasons for the Applicant's dismissal and the subject matter of the criminal proceedings differ.

• [27] Expanding upon this submission, the Respondent pressed that the criminal proceedings require evidence of the Respondent's property being stolen by the Applicant, whereas the UD Proceedings will focus on allegations of conduct in relation to the falsifying timesheets, failing to follow reasonable directions, breaching company policies, and withholding information. In the Respondent's view, the two proceedings draw upon completely different evidential matters apart from the evidence of the missing cash deposit bags.

• [28] The Respondent acknowledges that it has referred to the Applicant's purported concession during the disciplinary meeting that she knew the location of the missing cash deposit bags and that this purported concession is relevant to both proceedings. However, the Respondent states that this does not create undue prejudice and the Respondent would, if the application under s 589 was dismissed, be prepared to agree to have all evidence in relation to this issue subject to a suppression order, or alternatively not relied upon at any hearing so as to not present a notional appearance of prejudice to the Applicant.

• [29] The Respondent's argument about the limited nature of the overlap between the UD Proceedings and the criminal proceedings, is, in my opinion, implausible in light of the evidence adduced.

• [30] Blizard gave evidence that the allegations presented to the Applicant on 17 April 2025 included, amongst others:

a) failure to follow a direct instruction from Davy to deposit all outstanding cash depot bags at the bank on 11 April 2025; and

• b) breaches of company policies relating to cash and tender management, including the reopening of cash deposit bags, when previously properly sealed, and the transfer of cash from one bag to another, and then removal from the café that did not result in a corresponding deposit.[16]

• [31] That the matter of the missing cash deposit bags was addressed at the meeting on 17 April 2025 is an indubitable fact. The allegations presented to the Applicant in the meeting, as outlined in the preceding paragraph, focused squarely on the missing cash deposit bags. Whilst framed as a failure to follow a direct instruction from Davy to deposit the cash bags or a breach of a company policy relating to cash and tender management - namely the purported removal (of the cash bags) from the café that did not result in a corresponding deposit, the allegations are unable to be disentangled from the assertion that the Applicant had knowledge about the missing cash deposit bags.

• [32] Blizard's own evidence was that the Applicant acknowledged at the meeting on 17 April 2025, that she knew the location of the missing cash deposit bags she had removed from the café but declined to disclose the information.

• [33] It is therefore unsurprising that the letter of termination provided to the Applicant set out the following:

a) the Applicant had not followed an instruction to deposit all outstanding cash deposit bags on 11 April;

b) all outstanding cash bags had been removed by the Applicant;

c) it was established that a further $2218.00 was missing from the safe float and till floats, and the Applicant was unwilling to explain the missing floats in the meeting;

d) some of the cash bags removed had been deposited at the bank, however some had not;

e) the Applicant had been reminded of the policy that when cash bags are removed from a café for banking, the person in possession of the cash bags is to proceed directly to the bank to do so and is not to make any stops or detours along the way; and

f) the Applicant had been asked if she had an explanation for where the missing cash deposit bags or the missing cash from the safe was and had stated she knew where the missing cash bags were, but she was unwilling to say where that was and reiterated she would respond in writing in seven days' time.

• [34] Blizard stated that the Applicant's misconduct included breaching company policies relating to cash and tender management and withholding information regarding the location of missing cash deposit bags.[17] Both allegations sit within the context of assertions that certain cash deposit bags had not been deposited at the bank by the Applicant. It is what was professed to be inside those cash deposit bags and cannot be accounted for, that forms at least part of the allegations that had been levelled against the Applicant, and part of the reasons for dismissing the Applicant on the basis of serious misconduct. Whether framed, in part, as a breach of company policy and tender management or the withholding of information, there is an inextricable connection to the alleged facts giving rise to the Criminal Charge and the UD Proceedings.

• [35] The Respondent proposed that the parties proceed with the UD Proceedings and agree to have all evidence in relation to the Criminal Charge subject to a suppression order or alternatively not relied upon at any hearing, to prevent a notional appearance of prejudice to the Applicant.

• [36] Turning first to the suggestion of a 'suppression order', whilst the Commission may make a confidentiality order under s 594 of the Act, restricting or prohibiting the publication of evidence given to the Commission in relation to a matter, it nevertheless remains that the Applicant would be placed in the invidious position of being asked questions about the missing cash bags - as was the case in the stay hearing, in circumstances where that very subject matter forms part of the factual matrix to the Criminal Charge.

• [37] Second, in cases relating to alleged misconduct, the Commission must make a finding on the evidence provided as to whether, on the balance of probabilities, the conduct occurred.[18] The Commission does not stand in the shoes of the employer and determine what the Commission would have done if it had been in the employer's position.[19] The question the Commission must address is whether there was a valid reason for dismissal, in the sense there was a substantiated reason that was sound, defensible or well-founded.[20]

• [38] The Applicant was alleged to have engaged in certain conduct, which included, amongst other allegations, alleged conduct with respect to the handling of, or dealing with, certain cash deposit bags. The Respondent addressed the Applicant about such allegations and premised its decision to dismiss the Applicant, in part, upon the purported handling of, or dealing with those same missing cash deposit bags. That the Respondent now wishes to hive off part of the factual matrix to allow the UD Proceedings to progress uninterrupted, would appear, on its face, to be premised on expediency only.

• [39] Part 3-2 of the Act speaks of procedures for dealing with unfair dismissal to be 'quick, flexible and informal', however, that edict is required to be read in light of the Commission's function to exercise its powers in a manner that is fair and just and accords a 'fair go all round' - the latter involving a broad evaluative task assigned by the Act. Removing from consideration all evidence in relation to the Criminal Charge will, in my view, prove problematic on at least two fronts. First, an arbitrary line will need to be drawn as to the evidence that may or may not be considered. Determining where this line sits will arguably give rise to disputation and distraction. Second, adoption of the proposition will compromise the Commission's statutory task of making findings as to alleged conduct for the purposes of taking into account whether there was a valid reason for dismissal under s 387(a) of the Act or as a matter considered to be relevant under s 387(h) (serious misconduct).

• [40] There are a number of factors that support vacating the UD Directions and therefore effectively staying the UD Proceedings, for a definite period. These include:

a) an apparent substantial factual overlap between the Criminal Charge and the UD Proceedings;

b) material commonalities between the Criminal Charge (Stealing as a Servant) and the position advanced by the Respondent regarding at least one of the reasons relied upon for the Applicant's dismissal (albeit it is to be appreciated that the evidential onus and elements between an offence and civil proceedings differ); and

c) the cost, attention and resources required of the parties, particularly the Applicant, in conducting dual proceedings in different jurisdictions in relation to similar contentious issues involving the same parties.

• [41] The hearing of the Applicant's unfair dismissal application is listed for 22 August 2025. The criminal proceedings are scheduled for 13 October 2025. The Applicant understands that at that time, the Criminal Charge will be dealt with in full. This understanding accords with the Notice to the Accused of An Adjournment, which sets out that the charge of Stealing as a Servant has been adjourned for hearing and determination to the Magistrates Court on 13 October 2025 and that the Court, will, at that time, hear any evidence the Applicant wishes to give and any witnesses the Applicant wishes to call.

• [42] An order vacating the UD Directions and therefore staying the UD Proceedings until after 13 October 2025, will cause at least three months of delay. I appreciate that the uncertainty of outcome for the unfair dismissal application may, over the delay period, give rise to some level of discomfort. However, the practical difficulty in having the two proceedings running in parallel is apparent from that which I have outlined above and from the very hearing in respect of the order sought under s 589 of the Act. The issue of the cash deposit bags was traversed by the Respondent in its cross examination, the Applicant having been asked '... would you like to change your statement where you say you were not responsible for any missing cash ...?'. The prejudice to the Applicant that may arise should the UD Proceedings progress in the ordinary manner is discordant with the provision of a fair hearing to the parties.

• [43] Blizard gave evidence that there had been ongoing issues with the café, for example, there was a purported atmosphere of discontent and that discontent was said to have arisen due to how the café had been previously run. Blizard's evidence, in part, regarding the Respondent's staff, essentially amounts to a report of scuttlebutt about the circumstances of both proceedings. I am not persuaded that the determination of the Applicant's unfair dismissal application as initially listed, would have bearing on such issues and most certainly, in these circumstances, does not justify compromising the fairness of a hearing.

• [44] I have considered that the unfair dismissal application was made on 8 May 2025, and the criminal proceedings were instituted approximately a month later, initially by Blizard making the complaint to the WA Police. However, the unfair dismissal application, has, at this time, only been programmed for hearing, with parties yet to file their materials in relation to the merits of the matter. I have weighed the advantages and disadvantages to each were the UD Proceeding to be delayed.

• [45] I consider that a case has been made out, on balance, for the UD Directions to be vacated and it follows, for a stay of the Applicant's unfair dismissal application for a limited period only. On the facts as they are currently before me, I consider there to be reasonable grounds to stay the unfair dismissal application for approximately three months, to enable the criminal proceedings before the Magistrates Court scheduled for 13 October 2025 to take place. That would permit both parties to prepare for the criminal proceedings without being further required to prepare and submit materials for the UD Proceedings. That may eliminate some actual and perceived prejudice.

• [46] I will relist the matter for a status conference on 16 October 2025. Subject to hearing further from the parties at that time, my intention is to then list the UD Proceedings for a future date on which the application will be determined, and issue directions for the preparation of the matter in advance of that determination.

[1] Respondent's Outline of Submissions [16]; Exhibit A1 - Witness Statement of Ashleigh Winikerei (Exhibit A1), [AW-2].

[11] See for example Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] FWC 7282 [42]; Poposki v Warrigal Care [2018] FWC 4553.

[12] Visy Board Pty Ltd v Ulben Rustemovski and Fahim Ahmadyar [2018] FWCFB 1255 [46].

[13] Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corp Pty Ltd [1993] HCA 18; (1993) 67 ALJR 389, 390; see generally Re Australian Railways Union and others; Ex parte Public Transport Corporation [1993] HCA 28; (1993) 117 ALR 17, 23-24.

[14] [2014] FWC 7326.

[15] [2018] FWCFB 1225.

[16] Exhibit R1 - Witness Statement of Catherine Blizard, [12].

[18] Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561, 564; King v Freshmore (Vic) Pty Ltd (Australian Industrial Relations Commission, Ross VP, Williams SDP, and Commissioner Hingley, 17 March 2000) [24].

[19] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, 685.

[20] Selvachandran v Peterson Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373.

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