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[67]
[2026] FWC 298
General information, not legal advice.
Fair Work Commission
2026-02-03
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Unfair dismissal - ex tempore reasons - Dismissal unfair - no valid reason for misconduct where employee sought compassionate leave on death of her grandmother and employer repeatedly requested documentary proof during period of grieving - reinstatement not appropriate - compensation awarded.
On 29 January I conducted a hearing in this matter at the conclusion of which I announced
my decision that the application for an unfair dismissal remedy was granted. An order for compensation in lieu of reinstatement has issued separately[1]. These reasons are an edited copy of my ex tempore reasons for that decision.
[1] Ms Bianca Knott has applied pursuant to s 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. Ms Knott was employed by Tru Ninja Pty Ltd from 4 June 2024 to 9 October 2025. She was employed part time as a Supervisor and Administrator. She was dismissed for serious misconduct. She claims her dismissal was harsh, unjust or unreasonable and seeks compensation.
[2] Tru Ninja Pty Ltd contests the application. It submits that it had a valid reason to dismiss Ms Knott due to her conduct in September 2025 and that it provided her with procedural fairness at the time of the dismissal.
[3] Ms Knott represented herself in the proceedings. Tru Ninja was represented by Mr Evan Wardrope, Director and Co-owner of the company. Ms Knott relied upon her own witness statement and the statements Jason Knott, Kaitlin Velecki and Violeta Knott. True Ninja relied on the witness statements of Ms Tania Romero General Manager and also Co-owner of the company and Mr Wardrope.
[4] The background to the matter is that Ms Knott commenced employment with Tru Ninja Pty Ltd as a part-time supervisor/ administrative worker. She worked 22.5 hours per week. True Ninja runs an indoor obstacle course located in Penrith NSW. The work was covered by the Amusement Award. Her contract of employment relevantly included a provision for bereavement leave, and a termination clause providing for 4 weeks' notice or payment in lieu of notice save for dismissal for serious misconduct. Serious misconduct is defined in the contract at clause 21.4 to include wilful or deliberate behaviour that is inconsistent with the continuation of your of your employment, including refusal to carry out lawful, reasonable instructions given by the company. The other definitions in the contract are not directly relevant to these proceedings, although I note that they deal with matters such as causing risk to health or safety and safety or the reputation, viability or profitability of the business, which is a matter that was referred to during the proceedings. The definition also refers to matters such as theft, fraud or assault, harassment, an impaired ability to carry out employment as a result of intoxication and engaging in conduct tending in the opinion of the company to bring the company or its clients into disrepute.
[5] Ms Knott worked for the company for almost 14 months without incident. Some reference was made during the proceedings to instances of staff being warned about drinking coffee at the establishment without paying and being on their phones while working. Mr Wardrope referred to those matters as being warnings given to Ms Knott. Ms Knott explains that she was not given these warnings. I prefer Ms Knott's evidence on that issue
[6] Most unfortunately on 19 September 2025 Ms Knott's grandmother passed away unexpectedly. Ms Knott informed Ms Olga Ilina who was the Operations Manager via text that she would be unable to work on 19-20 September 2025 and would provide an update on 22 September 2025.
[7] On 22 September 2025, Ms Knott informed Ms Ilina via text that she would be unable to work for the rest of the week and intended to use bereavement and personal leave. Later that day, Ms Ilina emailed Ms Knott requesting documentation to support her leave. Ms Knott was unable to provide documentation associated with the death of her grandmother because it was so soon after that death. She informed Ms Ilna about that during a phone call.
[8] On the 23rd of September 2025, a date that looms large in these proceedings there was a phone call to Ms Ilna. This was the first of a number of calls that day. The first was a call to Ms Ilna from Ms Knott's mother to discuss the request for documentation.
The substance of the phone call was, in essence, that it was too soon after the death to provide the evidence requested. Ms Ilna described the call as demanding and threatening. It was the tone of this phone call and a subsequent phone call that caused concern for the company. Ms Ilna had sent a further e-mail to Ms Knott asking that she provide a death certificate, funeral notice or statutory declaration to support her application for bereavement leave. She also inexplicably asked for a working with children check and first aid certificate from Ms Knott. Those matters were not canvassed in the proceedings, but they form part of that written communication.
[9] On the 24th of September 2025, Ms Tania Ramero, the general manager and the co-owner of the company emailed Ms Knott outlining the bereavement leave entitlements under the Fair Work Act and requesting evidence by the 28th of September of the death of Ms Knott's grandmother. In response Ms Knott called Ms Romero on her phone. Ms Knott however did not speak to Ms Romero her mother spoke with Ms Romero. In this further conversation, which was described by Ms Romero as aggressive and distressing, the substance of the call was that it was too soon after the death of Ms Knott's grandmother to provide the material requested and a request was made that the bereavement leave be paid because the required evidence would be provided shortly thereafter. That proposal was not accepted by Ms Romero, who ended the phone call quickly and in circumstances where she felt that the communication was disrespectful and threatening.
[10] There are different accounts of that conversation, and the tone taken, in the evidence. Ms Knott's mother provides a witness statement describing the conversation and making it clear that she was firm but did not feel that she was rude nor threatening. Ms Romero's account.
that the tone of the conversation was aggressive and distressing for her. The company was concerned about the tone taken given Ms Romero was pregnant at the time. I don't think it is necessary to resolve the dispute as to how aggressive or otherwise the phone call was.
I have no doubt that in the circumstances, Ms Knott's mother was abrupt in her phone call and felt that she needed to represent her daughter firmly and that she may well have been frustrated by the fact that she wasn't getting anywhere in her conversation with Ms Romero. That, to an extent, is understandable. I'm not inclined to find that the phone call was aggressive, although it may well have been distressing for Ms Romero.
[11] Ms Knott's cousin also sent an email to Ms Romero and Mr Wardrope on 24 September explaining in very clear terms the trauma that Ms Knott had experienced with the sudden passing of her grandmother two days before and pointed out that there were no documents available yet to satisfy the requests being made. The e-mail asked that the compassionate leave be processed in any event rather than being paid as annual leave. It explained the trauma Ms Knott had experienced with the sudden passing of her grandmother two days prior and pointed out that there were no documents available yet to satisfy the request. It appears from the material that a suggestion was made that Ms Knott take annual leave, rather than compassionate leave. The email also notified Tru Ninja that Ms Knott would take personal leave for the following week.
[12] On the 25th of September Mr. Evan Wardrope took carriage of the matter and emailed Ms Knott repeating the request for evidence and proposing that annual leave be used for her absence from the 23rd to the 27th of September. Ms Knott emailed Mr. Wardrope providing a medical certificate and a police event number as interim evidence of the death of her grandmother. On 26 September 2025, Mr Wardrope responded, requesting additional evidence - a police report or official acknowledgment email to verify the police event number. He stated that compassionate leave would only be paid once the required evidence was received.
[13] On 29 September 2025 Ms Knott responded by email and complained that she had a right to disconnect from work and provided a funeral notice. Mr Wardrope responded, rejecting her right to disconnect and warning of disciplinary action if she failed to comply with lawful directions. Mr Wardrope also informed Ms Knott of a formal meeting scheduled for 9 October 2025.
[14] On 2 October 2025 Ms Knott was removed from the work WhatsApp group by Ms Romero.
[15] On 8th of October 2025, Ms Knott received a written warning by e-mail citing alleging issues associated with the communications in September. It was dated 7 October 2025 but Ms Knott did not receive it until the 8th of October when it was provided to her in an e-mail.
[16] The disciplinary meeting occurred on the 9th of October as scheduled by Mr. Wardrope on the 29th of September Ms Knot attended a formal disciplinary meeting with Mr. Wardrope and Ms Ilana. Ms Knott said that she didn't know it was a disciplinary meeting because she was told on the 29th of September it would simply be a check in. It seems to me that if the disciplinary letter or warning letter was received on the 8th of October Ms Knott would have been aware that the meeting on the 9th of October had a disciplinary character to it. She was provided in the meeting with a written warning letter. There's some dispute in the evidence as to whether that warning letter was a final written warning dated the 9th of October 2025, or whether it was a print out of the e-mail of the letter attached to the e-mail that had been provided on the 8th of October. I don't think the resolution of that contest is of great significance in the matter. But I prefer Ms Knott's evidence as given the gravity of the situation, I consider that she would have looked at that letter and considered it at the time it was provided and noted that it was the letter from the 8th of October. Indeed, she told me that the reason it was printed out is because she wanted to address it. She did not get an opportunity to do so because the meeting moved on to allegations of serious misconduct and the termination of her employment.
[17] On the 10th of October Ms Knott requested an official termination letter and payment for her four weeks' notice. She was provided with that letter and told that because the dismissal was for serious misconduct, there was no entitlement to payment in lieu of notice. The letter stated that the serious misconduct giving rise to the termination was:
[18] The final sentence of the letter stated that the misconduct had irreparably damaged the employment relationship and breached the standards expected of you as an employee of True Ninja.
[19] Section 390 of the Act provides that the Commission may order a person's reinstatement, or the payment of compensation to a person, if satisfied that the person was protected from unfair dismissal at the time of being dismissed and the person has been unfairly dismissed.
[20] Section 382 provides that a person is protected from unfair dismissal if the person is an employee who has completed a period of employment of at least the minimum employment period and the person is covered by a modern award, an enterprise agreement applies to the person, or the person earns less than the high-income threshold. It was not contested, and I am satisfied, that Ms Knott is protected from unfair dismissal for the purposes of s. 382.
[21] Section 385 provides that a person has been unfairly dismissed if the Commission is satisfied of four matters; the person has been dismissed, the dismissal was harsh, unjust or unreasonable, the dismissal was not consistent with the Small Business Fair Dismissal Code, and the dismissal was not a case of genuine redundancy. Tru Ninja employs more than 15 people so it is not a small business and the Small Business Fair Dismissal Code does not apply. The dismissal was also not said to be a case of genuine redundancy.
[22] The issue for determination is whether the dismissal was harsh, unjust, or unreasonable.
[23] Section 387 of the Act sets out the matters that are to be taken into account in determining whether the Commission is satisfied that the dismissal was harsh, unjust, or unreasonable.
[24] The reason for dismissal were stated in the termination letter as:
This conduct has irreparably damaged the employment relationship and breached the standards expected of you as an employee of TRU NINJA.
[25] In the proceedings, Mr. Wardrope stressed that the reason for the dismissal or the focus of the dismissal was on the communications between Ms Knott's mother and members of staff. In particular, the business was concerned about the interference of a third party in the company's affairs and was also concerned about Ms Knott's refusal to respond.
[26] Section 387 (a) of the Act requires me to take into account whether there was a valid reason for the dismissal related to capacity or conduct. The dismissal for serious misconduct here is conduct related and in such cases the Commission must consider the conduct that led to the dismissal and determine whether it constitutes a valid reason for dismissal.
[27] Here the conduct that is relied upon is described as serious misconduct. It arises from the communications following the death of Ms Knott's grandmother, and at that time, those communications were about Ms Knott attempting to access her legal entitlements to compassionate leave and personal leave. The circumstances surrounding those attempts and the company's response have already been set out. True Ninja's main concern is that Ms Knott's mother became involved and in her communications was rude and abusive.
[28] I do not find that the communications from Ms Knott's mother were rude and abusive. They may well have been abrupt and firm, but I would not consider them to be rude or abusive. They followed a number of e-mail exchanges in which Ms Knott continued to attempt to access to access her entitlements. The company's responses, in my view, were unreasonable. Seeking proof of death in the days after the passing of Ms Knott's grandmother was an unreasonable request. The requests made by Ms Knott's mother, and her cousin in emails, as well as Ms Knott herself, to be given time to provide that evidence were reasonable requests. They should have been heeded by the company.
[29] I do not consider anything in the communications either from Ms Knott's mother, nor from Ms Knott, nor from her cousin, amounted to communications that can be considered as serious misconduct on the part of Ms Knott. I can also see no justification for the view that Ms Knott's conduct irreparably damaged the employment relationship or breached any of the other matters in the definition of serious misconduct in the contract of employment.
[30] Consequently, I find that there was no valid reason for dismissal.
[31] The next matter to consider is whether Ms Knott was notified of the reason for dismissal. The company relies on the communications to Ms Knott about the conduct that they were concerned about on the 8th of October and a final warning letter which they say was provided at the meeting on the 9th of October. Reading those documents, so far as they go, they do give notification of concerns about Ms Knott's conduct so as to give some indication of the what was ultimately the reason for dismissal. And as there was no valid reason for dismissal they do not rise to being, in my view, a notification of a valid reason for dismissal. And I take that into account in making my final decision about fairness. There was not a valid reason for dismissal. While Ms Knott was notified of the reason for dismissal on 9 October she was not notified of a valid reason for her dismissal (s 387(b)).
[32] Further, the process of issuing a warning on 8 October, then providing a final warning at the disciplinary meeting in 9 October and then dismissing Ms Knott on the same day, does not amount to an opportunity to respond to the reasons for dismissal for the purposes of s 387(c).
[33] There was no unreasonable refusal of a support person (s 387(d)). That factor is neutral in the proceedings.
[34] I find that Ms Knott was not warned about poor performance (s 387(e)).
[35] As to ss 387(f) and (g), I consider that the relatively small size of the respondent's enterprise and the apparent absence of human resources advisers had a negative impact on the process followed in effecting the dismissal. and so there was some reason that can be relied upon by True Ninja for the way it conducted itself, Mr. Wardrope explained saying that he did have access to the Workplace Ombudsman small business hotline to discuss the issues of the leave, but he didn't refer to that hotline over the dismissal decision that was made and he was proceeding without specialist human resource advisors at the time that he took the action on the 8th and 9th of October.
[36] As to other relevant factors (s 387(h)), I consider that True Ninja did not take into account Ms Knott's personal circumstances, that she had just lost her grandmother in traumatic circumstances and that had caused her distress and that indeed the communications that they were sending were also causing her distress. So much is clear from the e-mail her cousin sent on her behalf, indicating that she was quite distressed about the circumstances. I consider that after that e-mail was sent, True Ninja should have stepped back and given Ms Knott the time that she needed to grieve. It did not. Instead, it continued with emails and requests for information and engaging with Ms Knott at a time where she should have been given time to herself. I think that sounds in unfairness as well.
[37] Taking all of the matters that I've just addressed into account, I find that Ms Knott was unfairly dismissed for the purposes of Section 385 of the Fair Work Act.
[38] Having found that the dismissal was unfair, I will move to the remedy.
[39] Both Ms Knott and Mr. Wardrope addressed me on the question of reinstatement, and they agree that reinstatement is an inappropriate remedy in these circumstances.
And I agree with them. And so I find that it's inappropriate to order reinstatement.
[40] Ms Knott seeks compensation rather than reinstatement. She was part-time and received $633.00 per week at the time of her dismissal. Ms Knott seeks 4 weeks compensation. I am not constrained by what is sought. I am required to apply the statutory test on compensation in the Act. In circumstances such as these, I need to consider each of the matters in section 392 of the Act. I'm satisfied that it's appropriate to make an order for compensation in lieu of reinstatement.
[41] The factors in section 392 will govern the amount of compensation that I award. I note that True Ninja is a small business and Ms Knott received a modest income as a part-time employee. She explains that she was studying at the time towards qualifications or a degree in forensic science, and that those studies were completed in December. The employment that she had with True Ninja strikes me as this sort of job that students take to assist them to get through their studies.
[42] The well-established approach to the assessment of the quantum of compensation under s.392 of the Act is to apply the "Sprigg formula". That formula is derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul's Licensed Festival Supermarket [1998] AIRC 989; (1998) 88 IR 21 which concerned compensation in similar provisions in earlier legislation. The application of that formula, in the context of the current legislation, was explained by the Full Bench in Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206.
[43] The first step is to consider what remuneration Ms Knott would have received, or would have been likely to receive, if she had not been dismissed. This requires an assessment of how long she would have remained at True Ninja and the remuneration she would have earned. The next step is to make the various adjustments in accordance with s.392 for matters that include the impact on the business, monies earned since dismissal, any reduction on account of the employee's misconduct and the application of the cap of no more than earnings in the six months prior to the dismissal. A reduction for contingencies has also been commonly applied to take into account likely changes in circumstances that may impact ongoing employment. This approach is subject to the overarching requirement to ensure that the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case.
[44] Some speculation is required in this case in determining what Ms Knott would have earned had she not been dismissed. Ms Knott was a supervisor and an administration worker working part-time in an amusement centre. I was not taken to any concerns about her performance of work, indicating that she would continue to work, given that she performed her work well, given there were no warnings about that performance. She was, however, a university student at the time she was dismissed. She has since completed her studies towards qualifications in another field, and those studies were completed in December 2025. Ms. Knott tells me she is looking for employment in her chosen field, and she tells me, and I accept that she would have continued to work for the company until around mid 2026, when she hopes to have achieved employment in her chosen field. She tells me she enjoyed her work. In those circumstances, if I assume that she would have worked until mid 2026, then she would have earned $24,687.
[45] Applying the next step in coming to a final figure involves making various adjustments for matters that include the impact on the business, monies earned since dismissal, any reduction on account of misconduct and a possible reduction for contingencies which may take into account likely changes in circumstances that may impact ongoing employment such as completing her studies. The length of employment is also a factor to take into account. Ther effect on the business is also relevant. Mr Wardrope tells me the business has run for 5 years but the owners have not received any return on the investment in that time. The business however is still running and all outgoings are being met. I was not told that the viability of the business would be significantly affected by an order, but I do note that it is a small business and that it is not a business that is currently paying dividends to owners.
[46] I will not make any adjustments in relation to misconduct. Because of the findings that I've made about the circumstances in September there was no misconduct justifying a deduction.
[47] My assessment of the loss is total loss is $24,687. That amount exceeds the earnings made in the six months prior to the dismissal, so the cap in the legislation must be applied.
I can only award a maximum amount of six months or $16,458. I will reduce that amount, taking into account the size of the business, the nature of the employment, it being a part-time job during studies and the contingency that those studies were completed in December 2025. Taking into account those matters, I will reduce the compensation amount to 12 weeks' pay or $7,596. Applicable taxes will need to be remitted to the ATO in relation to that amount. Superannuation will also apply at 12% and so a payment of $911.52 into Ms Knott' superannuation account will be ordered.
[48] My conclusion in these proceedings then is that I find that Ms Knott was unfairly dismissed. I find that it is inappropriate to order reinstatement and that it is appropriate to order compensation in lieu of reinstatement. The sum of compensation that I find is appropriate is $7,596 to be taxed as required and a payment on account of superannuation of $911.52.
Printed by authority of the Commonwealth Government Printer
Bianca Knott
Tru Ninja Pty Ltd [2026] FWC 298
(1998) 88 IR 21