Fair Work Commission|2025-09-26

The Applicant had met with the competitor in her own time and at time when Mr Bando knew the Applicant was to be away from work.

[39] While it is clear that the Applicant had been talking to Ms Stocco about moving on from the Respondent, Mr Bando did not have a basis for the belief that that the Applicant had used work time or email for the purposes of her job search activities or that she had proactively approached the known competitor herself. At the time of the Applicant's termination he did not have any basis for a belief that the Applicant set out to disparage or harm the interests of the Respondent in engaging with the supplier or competitor, e.g. by misusing confidential information or intellectual property. I accept that the Respondent was concerned about how the Applicant's actions reflected on it as others in the industry had learned that the Applicant was 'on the move' but I do not accept that based on the limited information before the Respondent at the time of the dismissal, it had a reasonable basis for the belief that the Applicant's conduct was of such a serious nature that it justified immediate dismissal.

[40] In all the circumstances, I am not satisfied that the Respondent has proved that it has complied with the Code and find that the Code has not been complied with.

[41] Having considered each of the initial matters, I am required to consider the merits of the Applicant's application.

Was the dismissal harsh, unjust or unreasonable?

[42] 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.

[43] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[6]

[44] I set out my consideration of each below.

Was the dismissal harsh, unjust or unreasonable?

Section 387(a) - Was there a valid reason for the dismissal related to the Applicant's capacity or conduct?

[45] In order to be a valid reason, the reason for the dismissal should be "sound, defensible or well founded"[7] and should not be "capricious, fanciful, spiteful or prejudiced."[8] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[9]

[46] Where a dismissal relates to an employee's conduct, the Commission must be satisfied that the conduct occurred and justified termination.[10] "The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination."[11]

[47] It is apparent that the Applicant was dissatisfied with aspects of her employment with the Respondent. Mr Bando had indicated that he wanted to make the Applicant's role part time upon her return from holidays and the Applicant wanted to remain employed as a casual. The Applicant had concerns about late payment of superannuation and her wage rate, which she considered fell below market rates.

[48] I accept that the Applicant made known to Ms Stocco that she was open to other employment opportunities and while the Applicant may have received emails from Ms Stocco and Ms Hall about a potential opportunity, there is no evidence that the Applicant used company resources or time to respond to them. Based on the evidence before the Commission, I am satisfied that the Applicant was engaging about other work opportunities in her personal time and there was no restriction in her contract that prevented her from doing so. There is no evidence that in meeting with Ms Hall she was engaging in any course of action intended to or with the effect of harming the Respondent's interests such as disclosing intellectual property or confidential information. The Applicant was simply dissatisfied with aspects of her employment with the Respondent and was networking in the industry in hope that a new opportunity opened up for her. I do not consider that this in and of itself constitutes a valid reason for dismissal.

[49] The Applicant's engagement with Ms Stocco of Indesign that led to Ms Stocco making the introduction to Ms Hall warrants further consideration. During the hearing the Applicant indicated that Ms Stocco had called her after hours in November 2024, told her that she was finding it difficult to get an invoice paid by the Respondent and asked the Applicant if there was something she could do to assist. The Applicant's evidence was that she told Ms Stocco she could not assist but started chatting to Ms Stocco about Melbourne, where both the Applicant and Ms Stocco are from. The Applicant's evidence was that she had an argument with Mr Bando on the same day about non-payment of superannuation and her wage rate. The Applicant indicated that Ms Stocco had rung her at a time that she was very upset, that Ms Stocco had said "how difficult it was to get money out of [the Respondent]". The Applicant said that "although she had given a professional response" to Ms Stocco, she said to Ms Stocco that as she was the industry person and knew everyone, if she heard of anyone looking for work to let her know. The Applicant then said, "that was about as far as the discussion went". However later during the hearing the Applicant elaborated on this and said that when Ms Stocco called:

the Applicant almost burst into tears on the phone;
Ms Stocco asked "What's wrong, what's wrong?"
The Applicant said "Oh my God, I just had a fight with Simon", in reference to Mr Bando;
Ms Stocco said "we are trying to get money out of him, it's not so easy"; and
The Applicant said "if you every hear anything, you're an industry person" which was a comment in passing and not a request that Ms Stocco find her a job.

[50] On the basis of this evidence it seems likely that Applicant did express her dissatisfaction with Mr Bando to Ms Stocco during the call and this prompted Ms Stocco to do the same. Given that Ms Stocco was a representative of a long term supplier of the Respondent and connected in the industry, I consider that the manner in which the Applicant interacted with Ms Stocco was unprofessional. The Applicant should not have aired that she had had an argument with Mr Bando to Ms Stocco.

[51] As this evidence was revealed during the course of the hearing Mr Bando would not have known about the nature of the discussion between the Applicant and Ms Stocco in November 2024. It seems it was a case of the Applicant exercising poor judgement in the heat of the moment and after she had argued with Mr Bando a short time before taking the call. However, this interaction occurred some months before the Applicant's dismissal and there is no evidence that the Applicant sought to disparage the Respondent or Mr Bando subsequent to the discussion in November 2024. While unprofessional, I do not consider that this isolated discussion between the Applicant and Ms Stocco in November 2024 gives rise to a valid reason for dismissal.

[52] The Applicant was simply an employee who had become dissatisfied with her employment and had approached her network in the industry, in her own time, to look for other opportunities.

[53] I am not satisfied that the Respondent had a valid reason for dismissal.

Section 387(b) - Was the Applicant notified of that reason?

[54] As I am not satisfied that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[12]

Section 387(c) - Was the Applicant given an opportunity to respond to any reason related to her capacity or conduct?

[55] As I have not found that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[13]

Section 387(d) - Was there unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to dismissal?

[56] 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.

[57] 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."[14]

[58] There is no evidence that the Applicant made a request for a support person to assist at the discussion concerning the dismissal.

[59] I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.

Section 387(e) - If the dismissal related to unsatisfactory performance, by was the Applicant warned about that unsatisfactory performance before the dismissal?

[60] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.

Section 387(f) and (g) - The degree to which the size of the Respondent's enterprise and 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

[61] The Respondent is a very small business without human resources expertise. This likely had some effect on the procedures followed in effecting the Applicant's dismissal. However, I do not consider this would have prevented the Respondent from bringing to the Applicant's attention that it had concerns about her conduct giving her a proper chance to respond to any concerns it had before making the decision to dismiss her. Instead, it appears that the Respondent had already made its decision to dismiss the Applicant upon her return to work from holidays, and a termination letter drafted which Mr Bando gave her during the discussion on 18 March 2025.

Section 387(h) - Other matters that the Commission considers relevant.

[62] Procedural fairness is one factor that the Commission may take into consideration when deciding if a dismissal has been harsh, unjust or unreasonable. It concerns the decision-making process followed or steps taken by a decision maker, rather than the actual decision itself.

[63] In the context of administrative decision-making, the rules of natural justice are flexible and require fairness in all the circumstances, including the nature of the power exercised and the statutory provisions governing its exercise.[15] Ordinarily, procedural fairness requires that an allegation be put to a person and they be given an opportunity to answer it before a decision is made.[16]

[64] I find that the Applicant was not afforded procedural fairness in that she was not given a genuine opportunity to respond to the concerns the Respondent had about her conduct before a decision to dismiss her summarily was made. I consider that this denial of procedural fairness and the sudden nature in which the decision to terminate the Applicant was made is relevant to my consideration of whether the dismissal was harsh, unjust or unreasonable.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

[65] I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[17]

[66] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was unjust. The Applicant was looking for other work opportunities in the industry in her personal time and while a supplier may have facilitated an introduction to a potential employer for this purpose, I do not consider that the Applicant's conduct was such that it gives rise to a valid reason for her dismissal and this carries significant weight. The dismissal lacked procedural fairness in that the Applicant was not given a genuine opportunity to respond to the concerns the Respondent had about her conduct before a decision to dismiss her summarily was made.

[67] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was unjust. I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the FW Act.

made an application for an order granting a remedy under section 394;

was a person protected from unfair dismissal; and

was unfairly dismissed within the meaning of section 385 of the FW Act,

I may, subject to the FW Act, order the Applicant's reinstatement, or the payment of compensation to the Applicant.

[69] Under section 390(3) of the FW Act, I must not order the payment of compensation to the Applicant unless:

(a) I am satisfied that reinstatement of the Applicant is inappropriate; and

(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.

Is reinstatement of the Applicant inappropriate?

[70] The Applicant submitted that she did not want to be reinstated, had lost trust and believed the workplace was unsafe and the working environment was hostile. During the hearing the Applicant confirmed that she did not wish to be reinstated. The "Applicant's disposition is a sure guide to the Commission as to whether or not it would be appropriate to reinstate or re-employ the Applicant. To act contrary to the Applicant's desired position in this respect would be to give effect to an order that may not yield a productive or cooperative workplace."[18] It also is apparent that the Applicant was dissatisfied with her employment and Mr Bando, Mr Bando had become aware that she was looking for another role and the relationship between the Applicant and Mr Bando has deteriorated significantly. In a very small workplace in which there are only two or three employees it is unlikely that reinstatement will lead to a productive or cooperative workplace in these circumstances.

[71] Having regard to the matters referred to above, I consider that reinstatement is not inappropriate.

Is an order for payment of compensation appropriate in all the circumstances of the case?

[72] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, "[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one..."[19]

[73] In all the circumstances of this matter I am satisfied, that an order for payment of compensation is appropriate.

Compensation - what must be taken into account in determining an amount?

[74] Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:

(a) the effect of the order on the viability of the Respondent's enterprise;

(c) the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed;

(d) the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal;

(e) the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation;

(f) the amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the Commission considers relevant.

[75] I consider all the circumstances of the case below.

Section 392(2)(a) - Effect of the order on the viability of the Respondent's enterprise

[76] There is no evidence that an order for compensation would have an effect on the viability of the employer's enterprise and I find it would have no such effect.

Section 392(2)(b) - Length of the Applicant's service

[77] There is no evidence that an order for compensation would have an effect on the viability of the employer's enterprise and I find it would have no such effect.

[78] The Applicant commenced employment on 16 November 2023 and was dismissed on 18 March 2025. This is not a particularly long period, being one year and four months, however I do not consider this warrants any adjustment to the amount of compensation ordered in the circumstances of this matter.

Section 392(2)(c) - Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed

[79] As stated by a majority of the Full Court of the Federal Court, "[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive... the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination."[20]

[80] It is apparent that the Applicant was dissatisfied with her employment and Mr Bando, that the Applicant was looking for another work opportunity in the industry and that Mr Bando had become aware of this. In these circumstances it is unlikely that the Applicant's employment would have continued for a lengthy period, and I find that but for her dismissal the Applicant would have remained employed by the Respondent beyond her notice period of 4 weeks.

[81] The Applicant was employed on a casual basis, was paid $40 per hour and worked between 9am and 4pm 2-3 days per week.[21]

[82] Had the Applicant not been dismissed she would have continued to receive weekly remuneration calculated by reference to her rate of $40 per hour and assuming an average of 2.5 days per week, with a day's work being 6.5 hours, including a half hour lunch break on her working day, this equates to $650 gross per week and $2,600 over four weeks. I find that the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed, was $2,600.

Section 392(2)(d) - Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal

[83] The Applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal.[22] What is reasonable depends on the circumstances of the case.[23]

[84] The Applicant was searching for alternative employment even before her dismissal took place, there is no reason to assume this would not have continued post dismissal I am satisfied that the Applicant took reasonable steps to mitigate her loss.

Section 392(2)(e) and (f) - Amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation and mount of income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation

[85] There is no evidence of the Applicant earning any remuneration since her dismissal or factors to suggest she will between the making of the order for compensation and the actual compensation. However, I have found that the Applicant's employment would have continued for four weeks, this is the period that warrants focus and despite the Applicant seeking other opportunities I find that she would not have earned any income in that four week period.

[86] I have not identified any other relevant matters.

Compensation - how is the amount to be calculated?

[87] As noted by the Full Bench, "[t]he well-established approach to the assessment of compensation under s.392 of the FW Act... is to apply the "Sprigg formula" derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul's Licensed Festival Supermarket (Sprigg).[24] This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages[25]."[26]

[88] The approach in Sprigg is as follows:

Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 2: Deduct monies earned since termination. Workers' compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation ordered.

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.

[89] I have estimated the remuneration the Applicant would have received, or would have been likely to have received, if the Respondent had not terminated the employment to be $2,600. on the basis of my finding that the Applicant would likely have remained in employment for a further period four weeks. This estimate of how long the Applicant would have remained in employment is the "anticipated period of employment".[27]

[90] I have found that the Applicant did not earn any income from the date of dismissal and was not reasonably likely to earn any between the making of the order for compensation and the payment of compensation.

[91] I now need to consider the impact of contingencies on the amounts likely to be earned by the Applicant for the remainder of the anticipated period of employment.[28]

[92] I do not consider it appropriate to make any adjustment for contingencies.

[93] I have considered the impact of taxation but have elected to settle a gross amount of $2,600 and leave taxation for determination.

[94] Having applied the formula in Sprigg, I am nevertheless required to ensure that "the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case,"[29] including my findings that:

an order for compensation would not have an effect on the viability of the Respondent's enterprise;
the Applicant's length of service does not warrant adjustment;
that but for her dismissal the Applicant would have remained employed by the Respondent for a period of 4 weeks would have earned $2,600 in the period;
that the Applicant took reasonable steps to mitigate her loss;
that the Applicant has not earned income from employment or other work in the relevant period.

[95] I am satisfied that this amount of compensation I have determined, being $2,600, takes into account all the circumstances of the case as required by s.392(2) of the FW Act.

Section 392(3) - Is the amount to be reduced on account of misconduct?

[96] I have not made findings of misconduct and the amount of the order for compensation of $2,600 is not to be reduced on account of misconduct.

[97] The amount of $2,600 is below the compensation cap prescribed by s.392(5) of the Act.

[98] The Applicant stated in her Outline of Argument that she was seeking 4 weeks' pay for the notice period required by her contract and an additional 2-4 weeks' compensation for distress, unfair process and harm to her reputation.

[99] In this regard, s.392(4) of the FW Act provides that the amount ordered by the Commission must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal.

[100] The amount of compensation does not include any component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the Applicant's dismissal.

[101] In light of the above, I will make an order that the Respondent pay $2,600 gross less taxation as required by law to the Applicant in lieu of reinstatement within 14 days of the date of this decision.

[5] Pinawin T/A RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359 at [29].

[6] 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].

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

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

[10] Edwards v Justice Giudice [1999] FCA 1836, [7].

[11] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

[12] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].

[13] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].

[14] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

[15] Kioa v West [1985] HCA 81, [11] (per Gibbs CJ).

[17] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].

[18] Taylor v C-Tech Laser Pty Ltd [2013] FWC 8732, [58].

[19] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [9].

[20] He v Lewin [2004] FCAFC 161, [58].

[22] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O'Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].

[23] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O'Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.

[26] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [16].

[27] Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].

[28] Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001), [39].

[29] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [17].

Printed by authority of the Commonwealth Government Printer

Work Regulations 2009

Belinda Taft v The Trustee for Simon Bando Family Trust trading as Go Home Lifestyle Products [2025] FWC 2014 (26 September 2025)

Belinda Taft v The Trustee for Simon Bando Family Trust trading as Go Home Lifestyle Products [2025] FWC 2014

At a glance

Court

Decision date

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Judgment (138 paragraphs)

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Legislation Cited (2)

Cases Cited (5)

Belinda Taft v The Trustee for Simon Bando Family Trust trading as Go Home Lifestyle Products [2025] FWC 2014 (26 September 2025)