s.394 - Unfair dismissal

[1] On 9 October 2025, Mr Brandon Carnevale applied in time for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth) (the Act) in relation to his employment as a Production Assistant by Jet Multimedia Pty Ltd (Jet). The matter was listed for hearing on 29 January 2026. There was no appearance from Mr Carnevale and the hearing proceeded in his absence.

[2] Under section 382 of the Act, a person is protected from unfair dismissal if, at the relevant time:

• They have completed at least the minimum employment period; and
• They are either covered by a modern award, employed under an enterprise agreement that applies to them or earn an annual income of less than the "high income threshold".

[3] Mr Carnevale is protected from unfair dismissal. Relevantly, there is no dispute that Mr Carnevale was dismissed, that he had completed the minimum employment period of 12 months and his annual income was less than the high income threshold.

• [4] Under section 385, a person has been unfairly dismissed if the Commission is satisfied that they have been dismissed; the dismissal was not consistent with the Small Business Fair Dismissal Code; was not a case of genuine redundancy; and was harsh, unjust or unreasonable.[1]

[5] The dismissal was not a case of genuine redundancy. Having been satisfied that Mr Carnevale was dismissed, the question is whether I am satisfied that the dismissal was not consistent with the Small Business Fair Dismissal Code. For the reasons that follow, I find the answer to be 'No'. It follows that Mr Carnevale has not been unfairly dismissed.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

• [6] The Small Business Fair Dismissal Code applies to small business employers with less than 15 employees.[2] At the time of Mr Carnevale's dismissal, he was Jet's only employee. Mr Carnevale was summarily dismissed on 9 October 2025. The relevant[3] provisions of the Code are extracted below:

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.

[7] Examples of serious misconduct described in the Small Business Fair Dismissal Code (theft, fraud, violence and serious safety breaches) are not an exhaustive list. In this case, Jet alleges theft against Mr Carnevale in relation to the misuse of company property while its Director, Mr Andrew Hawkins, was overseas. There is no evidence of any police report made in relation to the theft allegations. The remaining allegations are for conduct not otherwise described in the Code but said to constitute serious misconduct.

• [8] It is not necessary to decide whether the alleged serious misconduct in fact occurred or that Jet was correct in beliefs that it held.[4] The questions are instead: did Jet genuinely hold a belief that Mr Carnevale had committed an act of serious misconduct? Was the belief, objectively speaking, based on reasonable grounds?[5]

[9] Mr Carnevale was terminated with immediate effect due to alleged serious misconduct. The examples given in his letter of termination were these:

• Refusing to follow lawful and reasonable instruction that is part of your job while Mr Hawkins was overseas on three separate occasions, and failing to make contact during work hours in circumstances that were intentional and malicious
• Theft (taking the work editing computer and office key without authorisation, and using a Nissan Navara ute for personal use including taking it home without authorisation)
• Fraudulent and deceitful behaviour (unplugging a dashcam installed in the Nissan Navara to hide personal use of the vehicle, acting deceitfully by making Mr Hawkins think Mr Carnevale was at the office when he was not, and concealing unauthorised absence from work)
• Jeopardising the profits of Jet Multimedia by failing to complete work tasks
• Non-attendance to workplace with no warning, doctor's certificate or reason for 6 days while Mr Hawkins was overseas.

[10] At the time of dismissal, I am satisfied that Mr Hawkins genuinely believed Mr Carnevale had engaged in serious misconduct for the reasons given. An earlier warning letter had sought to address some of the concerns about his performance. After the concerns were not resolved, Mr Hawkins researched his options and concluded that the conduct of Mr Carnevale fell within the description of serious misconduct.

[11] Having read the materials and heard from Jet, I am unable to resolve some of the factual disputes between the parties in the absence of direct evidence from Mr Carnevale. But it is not necessary to do so for the purposes of dealing with whether dismissal was consistent with the Small Business Fair Dismissal Code. As best as I can ascertain, and dealing with the allegations in turn:

1. Jet had reasonable grounds for concluding that Mr Carnevale had once again not completed all allocated work tasks while Mr Hawkins was overseas. There is written evidence to support the conclusion, and the materials filed by Mr Carnevale do not contradict the assertions made. While I am satisfied that Jet had reasonable grounds for concluding that Mr Carnevale's actions in this regard were intentional, I am not satisfied that the information it held provided a reasonable foundation for assuming malicious intent. This was a serious allegation to make and one that required more than inference or assumption. The performance concerns held by Jet were not objectively capable of constituting serious misconduct.

1. The alleged 'theft' in each case was plainly conduct objectionable to Jet and based on well-founded beliefs as to its unauthorised nature. However, it was not reasonable for Jet to characterise the conduct as theft in the absence of any indication of intent not to return the items of property:

1. Mr Carnevale admits that he took the office computer home. Although he says this was authorised, the computer was 'a desktop computer that stays in that office' and not a laptop, and the allegation of unauthorised conduct is supported by messages between the parties. It is not alleged that the computer was taken with no intention to return it, or that it was not returned in fact.
2. Mr Carnevale admits to taking the office key home temporarily when he misplaced his own key. Jet accepts that the office key was returned by Mr Carnevale.
3. Information provided by a witness gave Jet reasonable grounds for considering that Mr Carnevale had used the Nissan Navara for personal reasons without asking while Mr Hawkins was overseas. The materials indicate continuing use of the vehicle also for work purposes, in circumstances where it remained accessible to Jet as required.

1. There were reasonable grounds for Jet to consider that Mr Carnevale had unplugged the dashcam to conceal his use of the vehicle while Mr Hawkins was away, and that he had not been transparent about his whereabouts at times when he was expected to be at the office during this time. If proven, the actions were objectively capable of being characterised as serious misconduct because they indicated that Mr Carnevale was no longer willing to be bound by essential terms of his employment, including that he deal honestly with Jet, attend for work during working hours and take due care of Jet's property and equipment. Mr Hawkins expressed his loss of confidence in the employment relationship as that he 'couldn't trust' that Mr Carnevale could be employed while he was overseas; 'couldn't be trusted' with Jet's equipment, and 'couldn't trust that he wouldn't do those things again'.

1. There is a lack of evidence to support the allegation that Jet's profits were put in jeopardy by Mr Carnevale's performance. Further, evidence about gaps in performance discovered later cannot have informed any such reasonable belief at the time of dismissal.

1. Finally, Jet had reasonable grounds for considering that Mr Carnevale did not attend the workplace on successive days while Mr Hawkins was overseas. It had witness accounts of a closed office, a vehicle not being where it should be and seen driving erratically toward the office in the same timeframe as Jet was waiting on a response from Mr Carnevale about a parcel left unattended. It had vague and sometimes conflicting information from Mr Carnevale about these matters. There is no evidence of any prior notice of absence or any medical certificate provided by Mr Carnevale for absences from work that Jet says were unauthorised. Mr Carnevale admits some of the absences for reasons including sleep and that he was working from home. He accepts that his productivity had declined in the weeks prior to dismissal. This is consistent with Jet's oral submission that Mr Carnevale's response to the dismissal was 'Yeah, I saw this coming'.

[12] In summary, I am satisfied that Jet (through Mr Hawkins) genuinely believed that Mr Carnevale had committed acts of serious misconduct in relation to matters described above. I have found that for some of the alleged acts, these beliefs were objectively based on reasonable grounds. That is sufficient to render the dismissal consistent with the Small Business Fair Dismissal Code.

[13] It follows that Mr Carnevale was not unfairly dismissed. It is not necessary to deal separately with whether the dismissal was harsh, unjust or unreasonable, such as for reasons of denial of procedural fairness or other issues raised in Mr Carnevale's written submissions about the substantive merits of the case.

[1] Fair Work Act 2009 (Cth), s.385

[2] Fair Work Act 2009 (Cth), s.23

[3] Ryman v Thrash Pty Ltd t/as Wisharts Automotive Services [2015] FWCFB 5264

[4] Hart v Forex 1 Pty Ltd ATF Trading Rental Trust [2018] FWC 942

[5] [2015] FWCFB 5264; Grandbridge Limited v Wiburd [2017] FWCFB 6732, Steri-Flow Filtration Systems (Aust) Pty Ltd v Erskine [2013] FWCFB 1943 and Pinawin v Domingo [2012] FWAFB 1359

Printed by authority of the Commonwealth Government Printer