Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether valid reason - whether dismissal was harsh, unjust or unreasonable

• [1] This decision concerns an application by Mr Brett Butcher for an unfair dismissal remedy[1] against his former employer, Bentleigh RSL Sub Branch Inc (Bentleigh RSL). Mr Butcher claims that Bentleigh RSL did not give him a clear reason for dismissal, or alternatively, the reasons given relating to his conduct and operational requirements, are not valid grounds for dismissal. Mr Butcher further claims he should have been given a warning instead of dismissal or at least notice of dismissal. This decision considers whether Mr Butcher's termination was harsh, unjust or unreasonable.

• [2] Mr Butcher commenced employment with Bentleigh RSL on 5 August 2024. Mr Butcher was employed as a casual chef. Mr Butcher's weekly hours with Bentleigh RSL varied. His usual shift was between 10am - 3pm, and he was rostered between 2 - 6 shifts per week. In the lead up to Christmas 2024, and over the January 2025 holiday period Mr Butcher worked between 4- 6 shifts a week. However, after the holiday season, from early February 2025 onwards, Mr Butcher only worked 2 shifts (or 10 hours) per week.[2]

• [3] Mr Butcher was one of a small team working in the RSL kitchen. The kitchen was run by a Head Chef, Mr Raad, and Sous Chef, Mr Turcic. With the exception of Mr Butcher and one other casual employee who worked one day a week over the holiday period, all other employees engaged in the kitchen were permanent full-time staff.

• [4] It is clear Mr Butcher and the Sous Chef had a difficult relationship. Mr Butcher claims that Mr Turcic has acted aggressively towards him during his employment with RSL Bentleigh. Mr Butcher says he did not report the behaviour formally to "keep the peace".[3] However, Mr Butcher claims he raised the matter informally with a former manager who is no longer at the workplace.

• [5] Mr Turcic denies acting aggressively towards Mr Butcher. Mr Turcic claims that Mr Butcher would not follow his directions and would be argumentative and aggressive towards him. Both Mr Raad, and Executive Chef, Ms Higgins, gave evidence that they had received informal complaints about Mr Butcher taking issue with Mr Turcic's directions.

• [6] On Friday 28 March 2025 there was an incident in the kitchen involving Mr Butcher, Mr Turcic and Mr Raad. The following account is based on uncontested evidence and CTV footage (with no audio):

• [7] Mr Butcher, Mr Turcic and Mr Raad were working closely in a confined area in the kitchen - with a sink and benches with chopping boards on one side, and a stove top with numerous pots of boiling water and a large oven on the other.

• [8] Mr Butcher was preparing a bowl of carrots for cooking. Mr Turcic said to Mr Butcher words to the effect that the carrots should be put in cold water first, rather than going straight into boiling water.

• [9] Mr Butcher became upset at this remark and replied, "cook the carrots yourself!" and rather than cooking the carrots, he heatedly picked up the bowl of carrots, walked towards and then past Mr Turcic, and left the carrots near the sink.

• [10] Mr Raad witnessed this interaction and told Mr Butcher he needed to finish up his shift in the hour. There were a number of heated exchanges between the Mr Raad and Mr Butcher where Mr Raad directed Mr Butcher to finish up his shift in the hour pointing at the clock, and Mr Butcher refused. After one of these exchanges Mr Butcher said words to the effect "let's step outside to deal with this." Mr Raad refused to step outside.

• [11] During the heated exchanges between Mr Raad and Mr Butcher, Mr Butcher uses arm gestures, including waving his hand while holding the knife he was using to chop vegetables.

• [12] Mr Butcher did not leave his shift early but remained for the entire shift.

• [13] Later on 28 March 2025, Mr Turcic and Mr Raad made a written complaint regarding Mr Butcher's behaviour. The complaint raised concerns regarding aggressive behaviour, failure to follow instructions and negative impact on team morale. The complaint sought urgent action by management.[4]

• [14] On 3 April 2025, Mr Butcher was sent an email by Joelene Sash, General Manager Operations of Bentleigh RSL, raising performance concerns regarding Mr Butcher engaging in inappropriate behaviour which may constitute bullying and harassment. Mr Butcher was required to attend a meeting on Friday 4 April at 3.30 pm. The letter attached to the email states:

"Given the nature of the matters raised, we want to inform you that disciplinary action, up to and including termination of employment, may be considered, depending on the outcome of this meeting. You are welcome to bring a support person with you." [5]

• [15] The meeting was rescheduled to 9 April 2025. During the meeting Ms Sash again informed Mr Butcher that disciplinary action, up to and including termination of employment, may be considered.

• [16] At this meeting, Mr Butcher did not deny the allegations that he had told Mr Turcic to cook the carrots himself, that he had asked Mr Raad to "step outside", or that he had refused to go home when Mr Raad directed. Mr Butcher did deny the allegation that he had "thrown" the carrots at Mr Turcic. He also claimed that Mr Raad and Mr Turcic had acted inappropriately towards him including being very demanding and swearing a lot.

• [17] Mr Butcher was then sent home, and Bentleigh RSL reviewed the responses presented and the CTV footage. Following a review of the CTV footage, Bentleigh RSL emailed Mr Butcher later on 9 April 2025, terminating his employment. The email provides as follows:

"After evaluating the information that you provided to us today and investigating the incident further, we have decided to terminate your casual employment.

I have also included a separation certificate shall you require it."

• [18] A letter of termination was attached to the email. The reasons given in the termination letter for the dismissal were "We no longer require your services as a casual employee. As a casual employee, we are able to terminate your casual engagement... without notice."

• [19] The attached separation certificate gave reason for dismissal was "Unsuitable for this type of work".

• [20] At the time of the determinative hearing in this matter, no other casual employee had been engaged in the kitchen by Bentleigh RSL since Mr Butcher's termination.

• [21] This matter was heard at a determinative conference on 30 June 2025. Mr Butcher represented himself and gave evidence on his own behalf. Ms Jolene Sash, General Manager Operations represented Bentleigh RSL. Ms Sash, Mr Raad, Mr Turcic and Ms Higgins gave evidence for Bentleigh RSL.

Was the dismissal harsh, unjust or unreasonable?

• [22] Section 387 of the 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.

• [23] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[6] I set out my consideration of each below.

Was there a valid reason for the dismissal related to Butcher's capacity or conduct?

• [24] Bentleigh RSL gives two reasons for Mr Butcher's dismissal.

• [25] First, as per the termination email, Bentleigh RSL claims Mr Butcher was terminated because of his conduct on 28 March 2025 (the Conduct reason).

• [26] Second, Bentleigh RSL says the downturn in business after the holiday period meant that there was no longer any work for Mr Butcher to perform (the Operational reason).[7]

• [27] Mr Butcher submits that the reason for his dismissal in not clear because the termination email (above at 16) refers to the Conduct reason, the separation certificate (above at 18) states he was unsuitable for this type of work, and he was verbally told that there was no work available for him. In any event, Mr Butcher states that the Conduct Reason and the Operational Reason are not valid.

• [28] I consider whether Mr Butcher was notified of the reasons for dismissal below at [37]. I firstly consider whether the Conduct Reason and the Operational Reason were valid reasons for dismissal.

• [29] Mr Butcher submissions the Conduct reason is not a valid reason because Mr Turcic was aggressive towards him and provoked him. Alternatively, Mr Butcher submits his conduct did not justify dismissal.

• [30] While it is clear there was a difficult relationship between Mr Turcic and Mr Butcher, I am not satisfied on the evidence before me that Mr Turcic engaged in inappropriate behaviour towards Mr Butcher. I also find that Mr Butcher challenged Mr Turcic's directions. I make this finding based on evidence of the 28 March 2025 incident as well as the evidence of Mr Turcic, Mr Raad, and Ms Higgins.

• [31] In relation to the incident on 28 March 2025, I make the following findings:

• Mr Turcic direction to Mr Butcher to put the carrots in cold water was a reasonable direction.
• While I do not find that Mr Butcher threw the carrots at Mr Turcic, Mr Butcher's response to Mr Turcic reasonable direction by becoming angry and stating "do the carrots yourself" was inappropriate and unreasonable.
• While I do not find that Mr Butcher intentionally threatened Mr Raad with a knife, I find that his confrontational manner, including making hand gestures while holding a knife, was a safety risk in the confined space.
• I find Mr Butcher's comment "Let's discuss this outside" was objectively threatening.
• I find Mr Butcher's refusal to follow Mr Raad's repeated reasonable direction to go home was misconduct.

• [32] If 28 March 2025 had been a one-off incident, it may not have justified dismissal. However, given there is evidence that Mr Butcher had previously challenged Mr Turcic direction's and caused disruption in the kitchen by arguing in his relatively short time with Bentleigh RSL, I am of the view Mr Butcher's conduct was a valid reason for dismissal. I consider below whether dismissal was harsh despite there being a valid reason.

• [33] Mr Butcher submits that there was always work to be done in the kitchen, and therefore he should not have been dismissed for downturn in business. Mr Butcher submits that he should have been given notice that work was slowing down and he would be put off.

• [34] RSL Bentleigh has provided uncontested evidence that after the holiday period their business slows down. Ms Sash and Ms Higgins provided evidence that after the holiday period, hours have been cut both in the kitchen and front of house. Ms Sash, Ms Higgins and Mr Raad provided uncontested evidence that after Mr Butcher's termination, no other casual employee has been engaged in the Bentleigh RSL Kitchen.

• [35] I am satisfied on the evidence before me that a downturn in business after the holiday period meant that Bentleigh RSL no longer required a casual chef on operational grounds. Mr Butcher was a casual employee, engaged to cover the ebbs and flow of business. There is no requirement to give him notice when there is a downturn in business.

• [36] I find that the operational reason of dismissal was also a valid reason dismissal.

Was Butcher notified of the reason for dismissal?

• [37] Mr Butcher's main argument is that it was unclear why he was terminated because the termination email (above at 16) refers to the Conduct reason, the separation certificate (above at 18) states he was unsuitable for this type of work, and he was verbally told that there was no work available for him. He argues that the separation certificate which provides that he is "unsuitable for this type of work" is wrong given he has been doing that work for 9 months. He also argues that the Separation Certificate should have said misconduct and shortage of work if these were the actual reasons for termination.

• [38] RSL Bentleigh submits that it did not state conduct issues as the reason for termination as it did not want to impact Mr Butcher's future employment opportunities or cause further distress.[8]

• [39] I am of the view that Mr Butcher was reasonably notified and aware of the reasons for dismissal. On 3 April 2025, Mr Butcher was sent an email from Bentleigh RSL raising concerns regarding his behaviour and requiring him to attend a meeting. In the letter attached to this email, Mr Butcher was informed that he could face disciplinary action up to termination of employment. I note the Mr Butcher claims he did not see this letter because he is unsure how to open an email attachment on the phone. However, Ms Sash's contemporary notes regarding the 9 April 2025 meeting confirm that Mr Butcher was told in the meeting that he may face disciplinary action, including termination. I am of the view that the termination email clearly indicates that the reason for termination related to Mr Butcher's behaviour on 28 March 2025.

• [40] I am also of the view that Mr Butcher was notified that Bentleigh RSL was cutting hours because of operational needs. The evidence before me shows that Mr Butcher constantly contacted Ms Higgins asking for hours in February and March 2025, and was repeatedly told that there were no shifts available.

• [41] Accordingly, I find that Mr Butcher was notified of the reason for dismissal.

Was Butcher given an opportunity to respond to any reason related to the capacity or conduct?

• [42] I am satisfied that Mr Butcher had the opportunity to respond to reasons relating to his conduct in the meeting on 9 April 2025.

Did Bentleigh RSL unreasonably refuse to allow Butcher a support person present to assist at any discussions relating to dismissal?

• [43] Mr Butcher was invited to bring a support person to the meeting on 4 April 2025. I am satisfied that there was no unreasonable refusal by Bentleigh RSL to allow the Mr Butcher support person.

If the dismissal related to unsatisfactory performance - was Butcher warned about that unsatisfactory performance before the dismissal?

• [44] The dismissal did not relate to unsatisfactory performance, so this factor is not relevant.

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 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?

• [45] Neither party raised any matter going considerations in s 387(f) or (g) of the Act, and I do not find s 387(f) or (g) relevant to this matter.

Or any other matters that the FWC considers relevant?

• [46] Mr Butcher argues he should have received a warning in relation to this behaviour before termination and therefore the termination was harsh. I find that given:

• the nature of the Mr Butcher's conduct, including refusing to follow reasonable directions,
• The context of a small team that has to work together in a confined environment,
• the fact Mr Butcher was a casual employee without any guarantee of ongoing employment, and
• Bentleigh RSL operational requirements.

• [47] Mr Butcher also argues that his age, and the fact he was surprised by the termination and had to go on Centrelink payments, made the termination harsh. Mr Butcher argues he should have received notice of termination to give him a chance to find another job. While I have empathy for Mr Butcher's situation and understand he was put in a difficult and unexpected situation, ultimately given my finding above regarding Mr Butcher's conduct and RSL Bentleigh's operational needs, these factors were not enough to make the dismissal unfair.

• [48] Mr Butcher feels his termination was unfair, and in particular, he says Bentleigh RSL have changed their reasons for dismissing him, that he feels that the termination was harsh given he received no notice, and he was left in a difficult financial position. I have empathy for Mr Butcher's situation and understand he found himself in an unexpected and difficult financial situation.

• [49] However, having taken into account all the considerations I am required to under s 387 of the Act, as well as all the circumstances of this case (particularly the incident on 28 March 2025, and the fact that at the time of dismissal Bentleigh RSL no longer had hours for a casual chef) ultimately I find that Mr Butcher's dismissal was not unfair, unjust or unreasonable. I therefore dismiss the application.

[1] Pursuant to s.394 of the Fair Work Act 2009 (the Act).

[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] DHB at 29 RSL Bentleigh's submissions.

[8] Bentleigh RSL submissions at DHB 29.

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