s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application dismissed

[1] Bradley Hodder has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). From 25 March 2025 until 22 October 2025 Mr Hodder was employed by CAG Management Services Pty Ltd (CAG) as a casual cleaner. He was dismissed after walking off the job on 15 October 2025 and later telling CAG that he would not work with a particular manager, Trevor Humphreys. Mr Hodder contends that his dismissal was unfair, including because Mr Humphreys had bullied him and it was not reasonable to expect him to work with Mr Humphreys.

[2] Mr Hodder submitted three witness statements which he adopted as part of his evidence, together with his F2 application and written submissions, and gave oral evidence to the Commission. Mr Hodder's evidence was that on 10 October 2025 he complained to the general manager, Mr Sherpherdley, about Mr Humphreys's aggressive behaviour towards him, but that no action was taken. Mr Hodder said that Mr Humphreys had a history of swearing and using an aggressive tone and that this was corroborated by an anonymous witness statement he produced from a former colleague who said that supervisors often used degrading language towards staff.

[3] Mr Hodder said that on 15 October 2025, Mr Humphreys swore at him for not immediately responding to his questions. He said that because his earlier complaint about Mr Humphreys had not resulted in any improvement, he determined that the workplace was unsafe, and so he left. Mr Hodder described this as a 'safety withdrawal'. He said that later that day Mr Shepherdley stood him down and he was not allocated any further casual shifts.

[4] Mr Hodder's evidence was that on 22 October 2025 Mr Shepherdley called him into a meeting, which was described to him as a 'warning' meeting. Mr Hodder said that during the meeting, Mr Shepherdley was angry, yelled, and spoke over him, and said, 'I don't care what you have to say', and then proceeded to dismiss him without giving him a chance to respond and without any warnings. Mr Hodder acknowledged that at the meeting he told Mr Shepherdley that he did not want to work with Mr Humphreys but said that this was reasonable because Mr Humphreys had bullied him by being aggressive and swearing, both on 15 October 2025 and on other occasions, and his complaint to Mr Shepherdley about Mr Humphreys had not changed anything.

[5] Mr Hodder said that the workplace was 'toxic' and that this was supported by the statement from the unnamed colleague, which spoke of unprofessional behaviour from management and supervisors. Mr Hodder said that the workplace culture and the conflicting instructions he received were part of a systematic failure of management and did not reflect any poor performance on his part. Mr Hodder also responded in his evidence to various allegations of poor performance levelled at him by the company.

[6] Mr Hodder said that the decision to dismiss him was disproportionate to the alleged shortcomings on his part, and that the dismissal had a significant impact on his health. He referred to a psychologist's report which spoke of his emotional distress and persistent anger resulting from unfair treatment. Mr Hodder also contended that the decision to dismiss him was connected to the cessation of government disability funding for his role. Mr Hodder said that he has autism, that the company knew this, and that he was 'treated like shit'.

[7] Mark Shepherdley gave evidence that Mr Hodder had complained to him that Mr Humphreys was aggressive and had said that he did not want to have anything to do with him. Mr Shepherdley said that he raised this with Mr Humphreys, who acknowledged raising his voice but explained that Mr Hodder would not do what he was told. Mr Shepherdley said that Mr Humphreys had a direct manner and appeared to be frustrated with Mr Hodder's behaviour. Mr Shepherdley said that on 15 October 2025, while he was interstate, Mr Humphreys called him and said that Mr Hodder had walked off the job. Mr Shepherdley then called Mr Hodder, who told him that he did not want to work with Mr Humphreys anymore. Mr Shepherdley replied that Mr Humphreys was the senior person on site and that he needed to take directions from him. Mr Hodder said that he did not want to do this. Mr Shepherdley decided to stand Mr Hodder down until he returned to site.

[8] Mr Shepherdley said that on 22 October 2025, he met with Mr Hodder and asked him whether he wanted to continue to work at the company. Mr Hodder replied, 'Not with Trevor'. Mr Shepherdley then said that they should part ways. Mr Hodder asked if he could say goodbye to people, and Mr Shepherdley agreed. Mr Shepherdley denied that he was angry during the meeting. He denied shouting at Mr Hodder, or speaking over him, or saying, 'I don't care what you have to say'. Mr Shepherdley did not recall saying that the meeting would be about a warning but agreed that he had not intended it to be a termination meeting. Mr Shepherdley said however that after Mr Hodder stated that he did not want to continue working at the company if he had to work with Mr Humphreys, he decided that the employment should end.

[9] Mr Shepherdley said that Mr Hodder had autism and that his position had been created as part of the company's disability employment initiative. He said that Mr Hodder was provided with additional assistance, such as a simple one-page instructions sheet, and regular supervision. He said that on several occasions during Mr Hodder's employment the company had needed to contact the disability support provider, Wise Employment, about Mr Hodder's behaviour. Mr Shepherdley said that he decided to terminate Mr Hodder's employment because of ongoing performance concerns, which included his failure to follow work instructions, his refusal to work with Mr Humphreys, who was his second in charge, and Mr Hodder's conflicts with other employees, which had led to complaints. He said that another significant factor in the decision to end the employment was the fact that Mr Hodder had walked off the job on 15 October 2025 without telling Mr Humphreys that he was leaving. Mr Shepherdley denied that the dismissal had anything to do with government funding, which was to the value of some $3,000 for the entire period of his employment, and that the company had not even wanted this payment.

[10] Mr Humphreys gave evidence that on 15 October 2025, he asked Mr Hodder to ensure that all rubbish bins had been emptied and that the floors were swept. Mr Hodder did not acknowledge what he said and Mr Humphreys thought he had not heard. He called to Mr Hodder, and noticed that he had earbuds in, which are not allowed. Mr Hodder said, 'Yes, I heard you Trevor'. Mr Humphreys then asked Mr Hodder to remove his earbuds and told him to acknowledge him when he was asked to do something. Mr Humphreys denied swearing at Mr Hodder. He said that when Mr Hodder denied having earbuds in his ears, he said, 'Rubbish'. Mr Humphreys said that he would not swear at Mr Hodder, as he was aware that he had a disability. Shortly after their exchange, Mr Humphreys saw Mr Hodder leave the workplace and drive off, without having told him that he was leaving the site. Mr Humphreys's evidence was that Mr Hodder had told him that he did not like him, and that he only took orders from Mr Shepherdley. Mr Humphreys denied ever swearing at Mr Hodder. He acknowledged that he could be aggressive in the sense that he was a person who has high standards and that sometimes he raised his voice, but never to the point of yelling.

[11] Justin Liddelow, the company's owner, gave evidence that Mr Hodder's position was one that he created for the purpose of hiring a person with a disability. He said that he had collaborated with Wise Employment on finding roles for a number of workers with disabilities, and that four such workers are currently employed by the company. Mr Liddelow said that he involved Mr Hodder's case worker from Wise Employment as part of the on-boarding process and that the management team worked consistently with Mr Hodder to accommodate his preferred hours of work. Mr Liddelow said that he asked a senior employee to look after Mr Hodder and mentor him, but after some weeks Mr Hodder did not want to take directions from him. Mr Liddelow said that he and Mr Shepherdley created a simple one page instructions sheet with Mr Hodder's daily work schedule, but Mr Hodder appeared to only want to do the tasks that suited him. Mr Liddelow said that he and his team acted in good faith, but that insubordination was not acceptable and that in his view management acted appropriately in dismissing Mr Hodder.

[12] I make the following findings on disputed points of fact. First, I prefer and accept the evidence of Mr Shepherdley about what occurred at the meeting on 22 October 2025. Mr Shepherdley's evidence was detailed, clear and credible. I do not accept that he shouted at or talked over Mr Hodder, or that he was angry or said that he did not care what Mr Hodder said. He denied this and I believe him.

[13] Secondly, I accept Mr Shepherdley's evidence that the dismissal of Mr Hodder had nothing to do with funding. The government subsidy for Mr Hodder's position was a small amount, and it is not credible to suggest that the dismissal was somehow connected to funding. Further, it is clear that the reason for the dismissal was the conduct of Mr Hodder, including in particular his refusal to work with Mr Humphreys.

[14] Thirdly, I find that Mr Hodder's claim that he was bullied by Mr Humphreys is unsubstantiated. Aside from the allegation that Mr Humphreys swore at him on 15 October 2025, Mr Hodder offered little detail of the alleged aggression and bullying by Mr Humphreys. I do not accept Mr Hodder's claim that Mr Humphreys had a history of using profanities. I prefer and accept Mr Humphreys's evidence that he did not swear at Mr Hodder, either on 15 October 2025 or at other times. I found Mr Humphreys to be a credible witness. He made concessions against his interests. He acknowledged that he could be aggressive insofar as he sometimes raised his voice. But he denied yelling, and I accept this. I also accept Mr Shepherdley's evidence that Mr Humphreys has a manner that is direct. I found that a certain brusqueness was evident in Mr Humphreys's evidence to the Commission. But there is nothing inherently wrong with this. People are different. Evidently, Mr Hodder did not like Mr Humphreys or his manner. Mr Hodder's mother, who attended the proceeding, said that Mr Hodder was often upset about Mr Humphreys. But this does not mean that Mr Humphrey's did anything wrong or that his conduct was unreasonable. Mr Hodder suggested that CCTV footage would have supported his contention that Mr Humphreys behaved inappropriately, but he did not make an application for orders to produce.

[15] Fourthly, the anonymous witness statement does not establish any inappropriate conduct by Mr Humphreys. It is unattributed hearsay. It also speaks generally and vaguely of unprofessional behaviour by managers and supervisors generally. It has little evidentiary value.

[16] Fifthly, I find that Mr Hodder's statement to Mr Shepherdley on 22 October 2025 that he did not want to work with Mr Humphreys was in substance a refusal of a direction that he do so. Mr Shepherdley had told Mr Hodder that he needed to follow the instructions of Mr Humphreys, who was his second in charge at the site. It was not for Mr Hodder to decide who he would take instructions from. Mr Hodder refused a lawful and reasonable direction.

[17] Sixthly, Mr Hodder's allegation that the workplace was toxic is both conclusory and unsubstantiated. The anonymous statement is not reliable or informative, and Mr Hodder's own evidence does not establish that the working environment was toxic or hostile or otherwise unsafe. On the contrary, I consider that CAG made reasonable efforts to support Mr Hodder. In this regard, I accept the evidence of Mr Liddelow about the creation of Mr Hodder's role and the steps he took to provide assistance to Mr Hodder during his employment.

[18] I take note of the detailed unsworn statement submitted by Omer Ozturk of Wise Employment about his involvement with CAG in creating the cleaning role for Mr Hodder in March 2025. Mr Ozturk said that the company had contacted Wise Employment about becoming an inclusive employer and providing opportunities for people facing barriers to employment. He said that Mr Liddelow had wanted to employ someone on the autism spectrum or with mental health challenges. Mr Ozturk said that he conducted workplace visits and had telephone calls with Mr Hodder to ensure that he was being supported and that in his opinion the company demonstrated patience, flexibility and support. Mr Ozturk also said that CAG employs other persons with disabilities associated with Wise Employment and they had reported positive experiences. Mr Hodder said that Wise Employment did not come to all of the meetings that he wanted them to attend. I accept this. I have not relied on Mr Ozturk's unsworn statement in reaching my conclusions about the working environment. I do however note that the tenor of Mr Ozturk's statement is consistent with my conclusions.

[19] CAG contended that Mr Hodder had failed to follow numerous other work directions and raised various other concerns about Mr Hodder's performance and conduct at work, including an incident involving Mr Hodder's alleged unsafe use of an airgun towards a coworker but it will not be necessary to set out these matters, or Mr Hodder's responses to them. Favourably to Mr Hodder, I proceed on the basis that these complaints are not substantiated.

[20] Based on my findings, I conclude that CAG had a valid reason for the dismissal that was related to the conduct of Mr Hodder (s 387(a)). He refused to work with Mr Humphreys. Mr Shepherdley had told Mr Hodder that he was required to do so. Mr Hodder defied a lawful and reasonable direction. There was no basis for him to do so. The refusal was misconduct and a valid reason for dismissal. A second valid reason was Mr Hodder's walking off the job without good reason on 15 October 2025. This too was misconduct. Neither of these things was justified by Mr Hodder's desire not to work with Mr Humphreys. The allegation that Mr Humphreys bullied or mistreated Mr Hodder are unsubstantiated. Mr Hodder found Mr Humphreys unlikeable. But that is not a sufficient justification to refuse to work with someone. There are many other matters that CAG relies on as valid reasons for dismissal, but it is not necessary for me to deal with these issues. Section 387(a) requires the Commission to take into account whether there is a valid reason for dismissal related to the employee's conduct or capacity. One valid reason will engage the section. In this case there are two. It is not necessary for an employer to prove that all of its reasons for dismissal are made out.

[21] I find that Mr Hodder was notified of a valid reason for dismissal at the meeting with Mr Shepherdley on 22 October 2025 and that he had an opportunity to respond to it (ss 387(b) and (c)). From the context of the meeting, I consider that it was clear that a reason for dismissal was Mr Hodder's refusal to work with Mr Humphreys. In my assessment, Mr Hodder had an opportunity to respond to this; he could have changed his mind and agreed to work with Mr Humphreys. But he did not do this. The second valid reason - walking off the job on 15 October 2025 - does not appear to have been notified to Mr Hodder as a reason for dismissal, but it is sufficient that one valid reason be notified. Even if I had concluded that ss 387(b) and (c) were not engaged because there was no explicit notification of reasons or formal process for responding, it would not have altered my conclusion in this matter.

[22] As to the other mandatory considerations, there was no refusal of a support person (s 387(d)). It seems no support person was requested. The valid reasons for the dismissal were related to conduct rather than performance, therefore s 387(e) has little relevance. I do not consider that the matters in ss 387(f) and (g) carry weight in this matter. As to s 387(h), I consider that CAG made reasonable efforts to accommodate Mr Hodder's autism, as described in the evidence of Mr Liddelow. The company's desire to support disability employment and its creation of a position for Mr Hodder warrant praise. Of course, these matters in no way lower the standard of fairness that applies to Mr Hodder's dismissal. But the fact is that Mr Hodder did not want to work with Mr Humphreys and refused Mr Shepherdley's reasonable direction that he do so. He also walked off the job without good reason on 15 October 2025. These were good reasons to end the employment. In the assessment of whether the dismissal was unfair, these reasons are not outweighed by other factors.

[23] Taking into account the matters in s 387, I conclude that the dismissal was not harsh, unjust, or unreasonable, and that it was not unfair.

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