Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy-dismissal for misconduct- allegations substantiated- satisfied significant misconduct-some factors weigh towards finding unfairness however dismissal not unfair taking into account all the circumstances-application dismissed

• [1] On 31 March 2025, Mr Cauê Telles (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for a remedy, alleging he had been unfairly dismissed from his employment with Tavern South Pty Ltd Trading AS T42 Hobart (the Respondent) on 11 March 2025. The Applicant was employed as a Sous Chef at the Respondent's restaurant T42 in Hobart. The reason for the dismissal was for the alleged misconduct of the Applicant on the evening of 8 March while he was working at the restaurant. The Applicant claims the dismissal was unfair and seeks an order for compensation.

• [2] The matter was listed for hearing in Hobart on 24 June 2025. After hearing from the parties, I determined to conduct a hearing pursuant to s.399 of the Act. At the hearing, the Applicant was self-represented and gave evidence on his own behalf. A witness statement was supplied by the Applicant from Mr Joideep Chopra. However, Mr Chopra failed to attend the hearing, and his evidence was not admitted. The Applicant ultimately did not press for it to be admitted[1]. In any event, the evidence of Mr Chopra was not related to the events on the evening of 8 March and of no utility. Mr Chopra's employment with the Respondent had also ceased in September 2024.[2]

• [3] The Respondent was represented by Ms Melissa Butters from the Australian Hotels Association. Ms Butters called the following witnesses: Mrs Amelia Miller, the Proprietor, Mr Leo Miller, the Director, and Mr Kent Sullivan, the Head Chef.

• [4] There is no dispute that there is jurisdiction for the Commission to hear and determine

a) the Applicant was protected from unfair dismissal pursuant to s.382 of the Act because he earned less than the high-income threshold and was covered by the Restaurant Industry Award 2020 (the Award);

b) the Applicant made his application within 21 days of dismissal pursuant to s.394(2) of the Act;

c) this is not a case involving a genuine redundancy;

d) the Respondent is not a small business for the purposes of the Act; and

e) the Applicant was dismissed by the Respondent on 11 March 2025: s.385(a) and s.386(1)(a) of the Act.

• [5] The dispute between the parties relates to whether the Applicant's dismissal was 'harsh, unjust or unreasonable' such that he was unfairly dismissed.

• [6] The Applicant submits that he was unfairly dismissed. The Respondent denies that the Applicant was unfairly dismissed and, accordingly, the Commission cannot order a remedy for the purpose of s.390(b) of the Act.

• [7] Having considered each of the initial matters, I am satisfied that the Applicant was dismissed, the application was made within the required period in subsection 394(2), the Applicant was a person protected from unfair dismissal, the small business fair dismissal code does not apply, and the dismissal was not a genuine redundancy. I am now required to consider the merits of the application.

• [8] The Applicant sought to introduce a vast volume of evidence, a great deal of which had no apparent relevance to the proceedings. This included numerous pictures of food items in the restaurant in which he formerly worked, texts with his ex-partner, text exchanges with his former housemate, text exchanges with Mrs Miller, text exchanges with Mr Sullivan, screenshots of timesheets, certificates of qualification, text exchanges from the work group chat and other materials. While much of the material was of no apparent relevance to the proceedings, I dealt with this by advising the parties that my chambers would compile a Digital Hearing Book (DHB) based on what I considered to be relevant evidence. However, if there was anything I had excluded from the DHB that the Applicant sought to be included then I would consider submissions on whether that material should be included. However, no issues were raised.

• [9] The evidence relating to the events of the evening of 8 March when the alleged misconduct occurred as well as the evidence as to the events in the following days, culminating in the dismissal is the evidence of most relevance in determining the matter. However, it is also necessary to consider the evidence as to what occurred in the period leading up to 8 March to provide some context.

• [10] On 24 July 2024, the Applicant commenced casual employment with the Respondent. Mr Sullivan and Mrs Miller found that the Applicant proved to be adept as a Chef, and he was subsequently offered a part-time role. In October 2024, the Applicant was offered a full-time Sous Chef position. The Applicant reported to the Head Chef Mr Sullivan. As part of the appointment, the Respondent undertook to sponsor the Applicant's visa. Mr Sullivan gave evidence that it was he who encouraged the business owners to sponsor the Applicant for a visa.[3]

• [11] The Respondent submitted that it had no issue with the Applicant's technical competence or culinary skills. The reason for dismissal arose solely from his alleged conduct and behaviour in the workplace and not from the quality of his work as a chef.

• [12] The evidence of Mr Sullivan is that soon after the Respondent undertook to sponsor the Applicant's visa and he moved into a full-time role, the standard of the Applicant's conduct began to deteriorate. Mr Sullivan claimed that the Applicant displayed increasingly argumentative and at times hostile behaviour and that he engaged in disruptive behaviour in the kitchen, demonstrating erratic and manic tendencies. According to Mr Sullivan other staff complained about the behaviour of the Applicant including excessive and unscheduled smoke breaks, volatile and erratic mood swings and use of vulgar and inappropriate language.[4]

• [13] In September 2024, Mr Sullivan informed the kitchen team via their group chat that breaks would now be rostered and published on the laminated break sheet, requiring adherence.

According to Mr Sullivan, the Applicant's non-compliance with this directive became a recurring issue throughout this employment and he had to regularly speak to the Applicant about taking unscheduled breaks.[5]

• [14] Mr Sullivan gave evidence that in October 2024, an employee expressed to Mr Sullivan a preference not to work with the Applicant, requesting shifts only when Mr Sullivan was rostered. Also, a candidate who had completed a work trial informed the Respondent of their decision not to return, citing unwillingness to work with the Applicant.

• [15] From 28 October 2024, Mr Sullivan states that he had cause to address the Applicant's repeated non-compliance with his instruction about adherence with rostered breaks as the Applicant kept leaving the kitchen for unscheduled and unapproved smoke breaks.

• [16] On 8 November 2024, Mr Sullivan states that he received a complaint about the Applicant's mood and interactions with another staff member, with the complainant expressing a desire to resign. Mr Sullivan addressed the issue with both parties by reiterating appropriate standards of behaviour. Between 14 and 17 November 2024, Mr Sullivan states that he again addressed the Applicant's repeated unauthorised breaks, which continued to disrupt kitchen operations.

• [17] On 31 December 2024, the Applicant was allegedly found vaping in the cool room. Mr Sullivan states that smoking and/or vaping outside of a venue's designated outdoor smoking area breaches Tasmania's liquor licensing and public health legislation and could have caused harm to the trading license of the business if the issue was brought to an inspector's attention. Mr Sullivan's evidence is that he reported this incident to the owners.

• [18] On 1 January 2025, the Applicant disclosed some personal challenges to Mr Sullivan that were affecting his mental health. Mr Sullivan's evidence is that he offered support to the Applicant. On 2 January 2025, Mr Sullivan contacted the Applicant by SMS to check in on his wellbeing, adjusted the roster in consideration of the Applicant's desire to continue working and provided Lifeline Australia's Crisis Support Line.[6]

• [19] On 2 February, the Applicant messaged Mr Sullivan to complain about rostering and the rest of the team.

• [20] On 9 February 2025, Mr Sullivan requested the Applicant to cease oversharing personal information after receiving inappropriate graphic text messages. The Applicant apologised for that behaviour.

• [21] On 13 February 2025, Mr Sullivan states that the Applicant was 32 minutes late returning from a scheduled break. On 14 February 2025, Mr Sullivan addressed the kitchen team to reiterate the expectation of adhering to scheduled breaks. Mr Sullivan's evidence is that the Applicant reacted strongly to his address, accusing him of being aggressive for not allowing additional breaks. Mr Sullivan claims the Applicant then proceeded to "denigrate his character during a prolonged confrontation".[7]

• [22] On 16 February 2025, Mr Sullivan had a further conversation with the Applicant about adhering to the break times. According to Mr Sullivan, the Applicant responded by disparaging him and mocking his appearance. Later the same day, the Applicant advised Mr Sullivan that he intended to take a one-hour break despite the break sheet allowing 30 minutes irrespective of the direction of Mr Sullivan. Mr Sullivan reacted by sending the Applicant home for the day due to his poor behaviour. Mr Sullivan's evidence is that on 17 February the Applicant continued with this disparaging behaviour mocking a physical condition (making an involuntary tick sound) that Mr Sullivan has.

• [23] During February, the Applicant complained about the alleged behaviour of Mr Sullivan to Mrs Miller. Those complaints were largely directed at concerns that Mr Sullivan was not doing his fair share of the work. The Applicant felt he was being given unreasonable directions and that Mr Sullivan was asking him why he was so slow and asking why tasks were not completed[8]. The evidence of Mrs Miller is that she investigated these concerns and spoke to other employees. She formed the view that there was no substance to those concerns. On 18 February 2025, Mrs Miller sent the Applicant an email detailing the respective roles of Head Chef and the Sous Chef, clarifying that Mr Sullivan's working arrangements were approved by the business and therefore not a matter he needed to concern himself with.

• [24] Later in the evening of 18 February 2025, Mr Sullivan emailed Mrs Miller with a documented list of concerns regarding the Applicant's conduct. Those concerns are broadly consistent with the evidence of Mr Sullivan. During February and commencing on 6 February the Applicant's evidence is that he was experiencing significant pain and discomfort from a case of haemorrhoids.[9]

• [25] I note that the Applicant during these proceedings has made a broad range of allegations as to the alleged behaviour of Mr Sullivan including that the Applicant was "constantly under bullying and harassment"[10] and, "severely abused, bullied, set-up for failure, defamed, humiliated".[11] The Applicant describes Mr Sullivan, among other things, as a narcissist. In response the Respondent submits that the text messages supplied by the Applicant in these proceedings contradict his claims of mistreatment. Rather, they demonstrate Mr Sullivan's efforts to maintain a cordial and professional working relationship with the Applicant. Mr Sullivan denied the allegations the Applicant made as to his behaviour. Indeed, his evidence was that he has been supportive of the Applicant particularly with his struggles with mental health and was in fact encouraging him to seek medical advice.[12]

• [26] Mr Sullivan disputes strongly that he was aggressive to the Applicant[13]. Mr Sullivan disputed that he said the Applicant was slow as his work was never slow.[14] Mr Sullivan also disputed that he made fun of the Applicant's 'tic' - it was actually Mr Sullivan who has the tic and the Applicant made fun of him.[15]

• [27] In any event, there is no evidence that allegations of this nature were raised with Mrs Miller in February. Rather the complaints of the Applicant were directed at the running of the restaurant and workload. While the alleged conduct of Mr Sullivan is of little significance to determining the alleged misconduct of the Applicant on the evening of 8 March, given Mr Sullivan had left the restaurant when the Applicant engaged in the alleged misconduct. I am not satisfied that Mr Sullivan has engaged in the conduct alleged for reasons set out later in the decision.

• [28] The Applicant took periods of personal leave in February and March 2025, supported by medical certificates. This leave was occasioned by the Applicant suffering haemorrhoids. The Applicant claims that he was pressured to return to work by Mr Sullivan. The Respondent submits, and I agree, that the SMS exchanges that the Applicant has submitted with his material demonstrate no undue pressure placed on him by Mr Sullivan regarding his return to work and that Mr Sullivan's responses to the leave notifications were appropriate and neutral in tone, with comments like "ok" and "thanks for letting me know"[16]. However, the Applicant was covered by a sick leave certificate on 8 March yet was at work that day which is of concern. I deal with that issue later in the decision.

• [29] On 20 February 2025, the evidence of Mrs Miller is that she had a constructive and encouraging discussion with the Applicant. The Applicant appeared to experience a moment of insight, remarking to the effect of "it really is in my head, isn't it?"[17], in reference to the perceived conflict with Mr Sullivan. Mrs Miller was hopeful that this acknowledgement would be a turning point.

• [30] Mrs Miller gave evidence that she had several informal discussions with the Applicant, encouraging him to seek professional mental health support. On one occasion Mrs Miller attempted to convince the Applicant to let her walk him to the hospital for assistance after his disclosure that he hadn't eaten or slept for days. She states that despite these repeated offers of support, the Applicant consistently declined assistance, even as his declining mental health became increasingly apparent and continued to impact both him and those around him.

• [31] Despite the significance of the events alleged to have occurred on 8 March 2025 the Applicant did not provide any evidence in his witness statement addressing the allegations as to his behaviour that evening beyond a statement to the effect that he denied all allegations made against him. He did provide some evidence as to his version of events on 8 March during the proceedings.

• [32] Mrs Miller is the key witness for the Respondent as to the alleged behaviour of the Applicant on 8 March as she was working in the restaurant that night. She gave evidence that she personally witnessed a serious incident that evening involving the Applicant that confirmed many of the concerns she previously held about his behaviour.

• [33] Mrs Miller's evidence is that she was working the pass, and the Applicant was running the hot section of the kitchen. Mr Sullivan had worked earlier in the evening however he had left the premises prior to the incident occurring. According to the Applicant, Mr Sullivan came in at 5:00pm "like a hurricane".[18]

• [34] Throughout the evening, Mrs Miller became increasingly concerned about how the Applicant was treating a new staff member, Lakshay. In her opinion, the new employee was performing well, particularly given his limited experience. Her evidence is that the Applicant nevertheless repeatedly berated Lakshay in a harsh and inappropriate manner. Mrs Miller felt compelled to reassure Lakshay on several occasions that he was going a great job. The Applicant's evidence as to his reaction to Lakshay was inconsistent. At first, the Applicant claimed he was not frustrated with Lakshay[19]. However, later said he was frustrated but that it was about a meeting he had with Mrs Miller a week before[20]. The Applicant claimed he politely asked Lakshay to help someone else. The Applicant then later claimed Lakshay "was destroying [his] service, he was destroying the whole service"[21].

• [35] Mrs Miller's evidence is that towards the end of the service, the Applicant completely lost his temper. Her evidence as to what occurred is as follows:

"He aggressively demanded that the staff member leave the front section of the kitchen.

The staff member complied and moved to the back of the kitchen.

I was appalled with Mr Telles' treatment of the other staff member and although I felt scared to confront Mr Telles, I felt compelled to intervene. I told Mr Telles that the staff member was not the problem and that it was unacceptable to have been giving him such a hard time all night.

At that point, only Mr Telles and I were present in the front section of the kitchen.

Mr Telles reacted with extreme aggression. He began shouting, swearing and ranting in a loud manner, slamming pots and pans around the kitchen onto hot plates and splashing food into the hot fryer in an unsafe manner.

I was genuinely scared by this behaviour. The way he was aggressively shoving pots across the stove and splashing items into the hot oil as a result, posed a significant safety risk to anyone nearby.

Recognising my responsibility to protect the rest of my staff, I told Mr Telles to go home.

It took me repeating this direction three times, in a firm and assertive manner, before he eventually left the kitchen and the venue. I was scared for the entire duration of the incident.

After he left, I was visibly shaken. I immediately walked to our other business on the pier to speak with Mr Miller and explained what had occurred."[22]

• [36] The Applicant initially denied he was asked to leave the venue by Mrs Miller[23], instead responding "I wanted to leave"[24]. However, later in his evidence, the Applicant accepted that he was asked to leave because he was "really worked up"[25] but, that he was only asked to leave once and complied. The Applicant conceded that he was "absolutely worked up"[26].

• [37] Mr Miller gave evidence that Mrs Miller came to see him after the event and was visibly shaking and upset. His evidence is that Mrs Miller recounted what had occurred consistent with her evidence before me[27]. Mr Miller gave evidence as to the serious safety risks of the conduct of the Applicant particularly the dangers of hot oil burning staff with the Applicant slamming pots and pans onto plates and splashing food and liquid near the deep fryer. The Applicant did not work again at the restaurant after the evening of 8 March.

• [38] As I noted earlier, the Applicant does not directly address the allegation as to his conduct on 8 March in the materials he filed before the hearing. The Applicant's response to the allegations focus on attacking Mr Sullivan and his alleged behaviours. However, Mr Sullivan was not present at the time of the alleged misconduct. The Applicant does state that he only asked another staff member, presumably Lakshay, to "step away and go help in another area of the kitchen" and that the Applicant had to take matters into his own hands because Mr Sullivan was setting him up for failure and making the Applicant's task harder.[28] The Applicant claimed that Mr Sullivan was present during that part of his shift when he was asked to go home "having a tantrum"[29]. However, Mrs Miller's evidence is that Mr Sullivan left around 7.00pm and that the incident with the Applicant occurred around 8.00pm.[30] The Applicant ultimately conceded that he had a "reaction" on the night but felt he was forced to have that reaction stating, "it wasn't my conduct that was unacceptable. That is called when you force someone to have a reaction and then you make them a bad person because of the reaction that they have."[31]

• [39] As noted earlier, the Applicant was working on 8 March, on a day he was on certificated medical leave. The evidence of the Applicant is he had a number of days leave in the lead up to 8 March associated with the symptoms of haemorrhoids. The Applicant states that the certificate of leave for 8 March was also because of his haemorrhoids. The evidence was not clear as to how it was that he was working while on certificated leave. It seems he was asked to attend and that he agreed to attend despite suffering from the effects of the haemorrhoids. Mrs Miller was not sure why the Applicant was at work.[32]

• [40] Mrs Millers evidence is that over the following few days after the 8th of March she talked to a number of staff members. She asserts that the consensus among them was that Mr Sullivan was the only one in the relationship between him and the Applicant who was trying to fix the situation in the kitchen, whereas the Applicant's behaviour appeared driven by paranoia and that multiple staff members described the Applicant as his own worst enemy.

• [41] Mrs Miller determined that while the Applicant's performance as a chef was competent, his conduct was terrible. She was concerned that, if the Applicant could behave so aggressively in front of an owner, his conduct when unsupervised could pose an even greater risk. On 10 March 2025, Mr and Mrs Miller decided to have a meeting with the Applicant to discuss the future of his employment. Mr Sullivan sent the meeting invitation. It is not in dispute that the Applicant was not told what the purpose of the meeting would be. The invitation from Mr Sullivan by SMS read: "Afternoon Caue, Would you be able to come in tomorrow at 10.30am please to have meeting with Amelia, Leo and myself. Regards Chef".[33]

• [42] The meeting took place the next day on 11 March 2025, between Mrs Miller, Mr Miller, Mr Sullivan and the Applicant. Mrs Miller's evidence is that "we outlined our concerns and Mr Telles was given the opportunity to respond. Unfortunately, he did not accept responsibility for his actions."[34] According to Mrs Miller, during the meeting the Applicant was only interested in talking about perceived food wastage by Mr Sullivan and did not seem to understand that the purpose of the meeting was because of his unacceptable and dangerous behaviour on 8 March 2025. The Applicant's evidence is that he was not given a reasonable opportunity to respond during the meeting nor a substantive reason as to why he was dismissed.[35]

• [43] Mrs Miller's evidence is that given the seriousness of the 8 March 2025 incident and the risk she believed the Applicant posed to staff safety, the decision was made to terminate his employment, providing payment in lieu of notice. The Applicant was informed he was not permitted to return to the venue in any capacity. Mr Sullivan's evidence is that at the meeting the Applicant failed to take responsibility for his actions. Mrs Miller subsequently sent an email to the Applicant confirming the termination of his employment.[36] Mrs Miller's view is that the dismissal of the Applicant was a necessary step to take to "...ensure our safety, the safety of our employees and the viability of our business."[37] In his evidence the Applicant did not, consistent with this denial of any misconduct, show any insight into his behaviour.[38] Mrs Miller gave evidence at the hearing that during their meeting on 11 March the Applicant appeared to have no understanding, acceptance or comprehension as to what happened on 8 March.[39]

• [44] After the dismissal, the Applicant requested he be provided a separation certificate and a reference. Mrs Miller provided the separation certificate but declined to provide a reference, given the circumstances surrounding his dismissal. Mrs Miller did offer to provide a statement of service.

• [45] On 12 March 2025, Mrs Miller underwent knee surgery. The recovery took a lot longer than she anticipated which delayed her ability to complete the employment confirmation letter that the Applicant had requested and that letter was not finalised until the morning of 4 April 2025.

• [46] On 8 April 2025, two employees informed Mrs Miller that the Applicant had returned to the premises despite the direction not to attend and confronted the employees near the rubbish room behaving in an erratic manner and making veiled threats directed at Mr Sullivan, Mr Miller and Mrs Miller. According to Mrs Miller, the two employees were distressed to the point that they contacted another employee to pick them up after work and drive them to their cars. As they approached the car waiting at the front of the venue, they reported that the Applicant was waiting for them, laughing and pointing at them in a way they felt was threatening. The police were notified of the incident.

• [47] On 9 April 2025, the Applicant again attended the venue. According to Mrs Miller, CCTV footage shows him knocking on the venue window and dancing in an erratic manner before walking further up the pier. He later returned, put out a cigarette on the ground outside the venue's door and then left. Approximately 10 minutes later, the Applicant returned to the venue. At this point, police were contacted again and responded. According to Mrs Miller the police advised the Respondent to apply for a Restraint Order to prevent the Applicant from attending the premises so that they could arrest him if he continued to appear at the restaurant.

• [48] Mrs Miller's evidence is that the Applicant then started a social media campaign against the business and Mr Sullivan.[40] Mrs Miller became increasingly concerned about the volatility and unpredictability of the Applicant's behaviour.

• [49] On 5 May 2025, the Millers obtained an Interim Restraint Order against the Applicant. This order extended to employees of the Respondent, preventing the Applicant from threatening, harassing, abusing or assaulting any person that is an employee or T42 or Billy's Burgers directly or indirectly including by telephone, email, facsimile, letter, SMS text message or any other form of electronic communication.

• [50] On 28 May 2025, the Millers obtained a full Restraint Order against the Applicant. This order is in place until 28 May 2026 and extends to the Respondent's employees whilst they are undertaking employment. Mr Sullivan has also obtained Restraint Orders in relation to the Applicant. Those orders included an exception for appearances in court or tribunal proceedings involving the parties.

• [51] Mr Sullivan also supplied an array of Instagram messages that the Applicant had sent him after the dismissal on or around 19 April.[41] Mr Sullivan said that he supplied these messages to demonstrate the "instability we were dealing with". The Applicant did not challenge the evidence of Mr Sullivan that he sent these messages. The content of the messages is quite shocking. They are abusive in the extreme calling Mr Sullivan a "fat fuck loser cunt" and other quite shocking terms of derision. There is also a reference to "Baby toddler Sullivan" with a baby bottle emoji. I note this is consistent with the evidence of Mr Sullivan that it was the Applicant that was mocking him in the workplace, rather than vice versa as suggested by the Applicant. The Applicant describes Mr Sullivan as a narcissist, a description the Applicant freely applies to others including Mr Sullivan's partner as well as the Applicant's ex-partner who he also describes as psychopathic.[42]

• [52] Mrs Miller concludes her evidence with this statement: "This situation has been one of the most stressful and distressing experiences I have encountered as a business owner. It continues to genuinely impact on me. I believe we made every effort to support Mr Telles and to encourage him to seek professional help, but unfortunately, those efforts were unsuccessful. It saddens me to know that, according to his own admissions during this process before the Commission, Mr Telles still has not sought professional medical assistance. I am sorry that this is where things have progressed to. However, I firmly believe that the dismissal was not harsh, unjust or unreasonable. It was really the only option we had left."[43]

• [53] An assessment of the credibility and reliability of the Applicant and the Respondent's witnesses is necessary in the determination of this matter. Findings of credit are necessary in order to make findings on disputed facts.

• [54] The Applicant on numerous occasions referred to having psychosis attacks[44] and spoke of being treated by the mental acute health team[45]. However, there was no medical evidence provided as to his mental state. The Applicant also said he was not receiving treatment for his mental health issues. However, his conduct during the various proceedings before me demonstrate the Applicant is experiencing difficulties with his mental health. Mrs Miller's evidence, which was credible, was that prior to the events of 8 March, the Applicant had shown serious behavioural problems including not eating or sleeping and she sought to assist him[46].

• [55] The Applicant's conduct as a witness was nothing short of extraordinary. He was throughout the proceedings an argumentative and non-responsive witness. For example, when asked if Mr Sullivan was present during the part of the shift when the Applicant was asked to leave, his response was to shut his eyes, claiming that he was meditating.[47] After being warned about this behaviour this culminated in the Applicant yelling at me and having to be warned again about his behaviour.[48] In fact it was necessary to intervene with the Applicant to warn him of his behaviour on a number of occasions.[49] Further, the Applicant on a number of occasions sought to personally denigrate and belittle Ms Butters who was at all times respectful in the manner in which she conducted the difficult cross examination of the Applicant.

• [56] The Applicant's conduct in the witness box was antagonistic, arrogant and aggressive. This included him frequently rolling his eyes at Ms Butters, at one time poking his tongue out at her and questioning her legitimacy in asking the questions.[50] There was also the occasion where the Applicant let out a long wail and put his head between his knees. At some points he aggressively leaned forward toward Ms Butters yelling his responses at her.[51] His conduct for a great deal of the time he was giving evidence was completely unacceptable. The Applicant was entirely lacking in credibility. He struggled to control his aggression in the court room despite the numerous warnings to behave.

• [57] The Applicant was also inconsistent with his evidence. For example, his initial claim that he was not frustrated with the work of Lakshay followed with a later claim that he was frustrated as Lakshay was destroying the service. His evidence was, overall, not responsive to questions and constantly argumentative. Overall, the Applicant was a most unsatisfactory witness lacking in credibility.

• [58] In contrast, Mr Sullivan was a forthright witness who was responsive to my questions, noting that the Applicant did not ask many questions of Mr Sullivan. Mr Sullivan's evidence is consistent with the objective evidence, in particular the SMS messages between him and the Applicant which demonstrate that Mr Sullivan was courteous and often empathetic with the various matters discussed with the applicant. He was not credible in respect to his evidence that the Applicant was required to work on days he was on certified medical leave. It is apparent from the evidence that did occur on two occasions. However, in all other respects Mr Sullivan was a cogent and credible witness. His evidence, unlike the Applicant's, was for the most part consistent with the objective evidence, largely the SMS messages which demonstrated a professional and courteous level of communication with the Applicant.

• [59] Mrs Miller was a cogent and credible witness. Mrs Miller was clear in her recollection of events and was responsive to my questioning of her evidence. She made concessions where appropriate. For example, Mrs Miller conceded that they did not offer the Applicant a support person during the termination meeting on 11 March and also that she had received the medical certificate from the Applicant stating he was unfit for work up to 9 March.[52]

• [60] Mr Miller's evidence was credible though his evidence was of value on only one particular point, that being his observation of Mrs Miller and her demeanour after the events on 8 March. That evidence was unchallenged.

• [61] For the foregoing reasons, where there is a conflict on the evidence as between Mrs Miller, Mr Sullivan and the Applicant, I prefer the evidence of Mrs Miller and Mr Sullivan.

• [62] I am satisfied that the conduct of the Applicant on 8 March was largely as described in the evidence of Mrs Miller. The Applicant did not directly engage with the specific allegations as to what occurred on 8 March. To the extent that the Applicant did engage he was inconsistent with his evidence. He ultimately conceded that he was frustrated with the less experienced staff member and accepted that he was "really worked up". As set out earlier I found the Applicant to be a most unsatisfactory witness and lacking in credibility. I prefer the evidence of Mrs Miller as to what occurred on 8 March.

• [63] I am therefore satisfied that the following occurred on the evening of 8 March:

• Mr Sullivan was not rostered to work but was in attendance in the early part of the night for a separate canape function. Mr Sullivan left the venue approximately one hour prior to the Applicant engaging in the misconduct and was not involved in the incident at all.

• Throughout the evening, the Applicant persistently berated a new staff member in a manner that was harsh, inappropriate and unprovoked.

• Towards the end of service, the Applicant completely lost his temper and aggressively insisted that the new staff member leave the front section of the kitchen.

• Mrs Miller intervened, informing the Applicant that the new staff member was not at fault and that his treatment of them throughout the evening had been unacceptable.

• The Applicant responded with heightened aggression - shouting, swearing and ranting loudly in the kitchen. He slammed pots and pans onto hot plates and splashed both food and liquid near the deep fryer.

• This conduct posed a serious safety risk. The combination of hot liquids and oil presented a significant risk of burns, fire or another critical incident that could have endangered all who were present.

• Mrs Miller instructed the Applicant to leave the venue and go home.

• The Applicant refused to comply with this direction until Mrs Miller had repeated it assertively on three separate occasions, after which he eventually exited the kitchen and the venue.

• The new staff member was subjected to unwarranted aggression and Mrs Miller herself felt threatened and fearful during the incident.

• Mrs Miller went to Mr Miller immediately soon after the incident visibly shaken and distressed.

• [64] It is also relevant that the Applicant was still covered by a medical certificate which says he was unable to work from 28 February to 9 March.[53] Despite this the Applicant was rostered to work and attended work on 8 March[54]. Mr Sullivan was unsure as to why the Applicant was on the roster[55]. The Applicant was "pretty sure [he] got called in"[56]. The medical condition the Applicant was suffering from on 8 March was haemorrhoids[57]. However, when he returned to work the Applicant said "when I came back I still had it, and wasn't as bad but still painful, everything."[58] He also stated that he was still experiencing symptoms from the haemorrhoids on 8 March but stated "On the 8th I went to work, and still was there, but I was, like, 'I can do this, I'll do this, I can do this fine'. Got there, I was in the best mood of my life, happy, dancing blah, blah, blah, blah, blah. My mood was translated as, 'He's lying, he doesn't have a haemorrhoid, he has a haemorrhoid and he's dancing, what do you mean?' It doesn't matter what I'm going through, I'll make this happen, I'll be happy, and that makes me forget about my haemorrhoid, right."[59]

• [65] While the Applicant was entitled to not be at work on 8 March, it seems that he decided to attend the workplace in any event. There is no evidence that was he was forced to attend. However, it is of considerable concern that the Applicant was at work on the day in question given that he was certified as being unwell. However, that does not excuse the conduct of the Applicant on 8 March. The Applicant's behaviour described above represented a serious safety risk. He has caused significant distress to Mrs Miller. He has had to be told a number of times to leave the premises before eventually complying. His conduct was completely unacceptable. It is a sound and defensible reason for dismissal. I am satisfied that it is a valid reason for dismissal.

• [66] On 10 March 2025, Mr Sullivan contacted the Applicant to invite him to attend a meeting with Mr Sullivan and the Millers. The Applicant was not advised as to the purpose of the meeting prior to the meeting. On 11 March 2025, the meeting took place. Mr and Mrs Miller outlined their concerns, and the Applicant had the opportunity to respond. I am satisfied that the Applicant did not address his conduct of 8 March and instead focussed on raising issues about food handling and other matters. On 11 March 2025, the Respondent resolved to terminate the Applicant's employment and to make payment in lieu of notice.

• [67] Whilst the Applicant was reluctant and argumentative as to whether it was Mrs Miller who was the decision maker in determining to dismiss him, it is clear that she was the decision maker.[60]

Was the dismissal harsh, unjust, or unreasonable?

• [68] 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.

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

• [69] In order to be a valid reason, the reason for the dismissal should be "sound, defensible or well founded"[61] and should not be "capricious, fanciful, spiteful or prejudiced[62]." However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it were in the position of the employer[63]. The question the Commission must address is whether there was a valid reason for the dismissal related to the employee's capacity or conduct (including its effect on the safety and welfare of other employees).[64]

• [70] In cases relating to alleged misconduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.[65] It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.[66]

• [71] For the reasons set out earlier, I am satisfied that the Applicant engaged in the misconduct on 8 March that are set out in my factual findings. The gravity of the misconduct of the Applicant is significant. He has caused a risk to health and safety of himself and other employees. I consider the misconduct to be serious misconduct.

• [72] The valid reason for the dismissal, and the gravity of the misconduct, weighs significantly in favour of a finding that the dismissal was not unfair.

• [73] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[67] and in explicit[68], plain and clear terms[69].

• [74] It is not in dispute that the Applicant was not given prior advice of the reason for the meeting on 11 March at which he was dismissed. While the Respondent seemed to expect that given what had occurred only days prior the Applicant should have known what the meeting was about and that it was not acceptable. I do accept that the Applicant was notified of the reason for his dismissal at the meeting. Given his conduct on 8 March the Applicant should not have been surprised that this was the purpose of the discussion. However, the failure to properly notify the Applicant prior to the meeting of the purpose of the meeting contributes to a level of unfairness with the process of the dismissal.

• [75] This consideration weighs in favour of a finding that the dismissal was unfair.

Opportunity to respond to any reason related to capacity or conduct - s.387(c)

• [76] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee's employment.[70]

• [77] The opportunity to respond does not require formality and the factor is to be applied in a common-sense way to ensure the employee is treated fairly.[71] Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to the concern, this is enough to satisfy the requirements.[72]

• [78] I prefer the evidence of Mrs Miller that at the meeting the Applicant had an opportunity to respond to the allegations of misconduct but did not respond, instead focusing on his complaints about Mr Sullivan. Mrs Miller was looking for some indication of insight from the Applicant as to his behaviour however instead found that he was focussed on allegations of food wastage and other operational matters rather than responding to the concerns of the Respondent about his behaviour. I am satisfied that Mrs Miller made the Applicant aware, during the meeting of the precise nature of her concerns as to his conduct and he had an opportunity to respond to it but did not, preferring to focus on other extraneous matters.

• [79] This weighs in favour of a finding that the dismissal was not unfair.

• [80] 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.

• [81] 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."[73]

• [82] The Applicant was not refused a support person. However, given that he was not advised as to the purpose of the meeting it was less likely he would have sought to arrange one. In any event he was not refused a support person, and this is a neutral consideration in the circumstances.

Warnings regarding unsatisfactory performance - s.387(e)

• [83] The dismissal did not relate to unsatisfactory performance. This factor is therefore not relevant in the circumstances.

Impact of the size of the Employer on procedures followed and impact of absence of dedicated human resources management specialist/expertise on procedures followed - s.387(f) and (g)

• [84] The Respondent had at the time of the dismissal 15 employees. The Respondent submits that the relatively small size of the organisation and it lack of dedicated human resource specialists is a relevant factor. I agree that the small size of the employer and the absence of dedicated human resource management specialist/expertise has had an impact on the procedures followed. This is a factor weighing in favour of a finding the dismissal was not unfair but not significantly so.

• [85] The Applicant's length of service was only a little over 7 months. While the Respondent clearly has high regard for his skills as a Sous Chef and there were no issues with this performance, he had been spoken to repeatedly about taking excessive breaks. The Applicant's length of employment and his conduct while employed are a neutral consideration.

• [86] As to the personal and economic consequences for the Applicant, the Applicant stated that he was made homeless as a result of the financial consequences of his dismissal and that he has had difficulties with his visa, having to pay $8,000.00 out of his own pocket towards his own visa costs.[74] I am satisfied that these particular circumstances facing the Applicant weigh somewhat in favour of a finding the dismissal was unfair.

• [87] The Applicant has shown virtually no insight into his conduct or any remorse. I have set out earlier my consideration of the evidence and findings on this point. His outrageous Instagram messages sent to Mr Sullivan after his dismissal underline his failure to have any insight into his behaviour. This is a factor that weighs against a finding that the dismissal was unfair.

• [88] As mentioned previously the Applicant was present at work on 8 March despite being on certificated medical leave for that time. The evidence from both parties was not particularly clear as to how the Applicant ended up working on a day that he was covered by a medical certificate. The Applicant stated at the hearing that he probably got called in and then went to work despite his symptoms. This is a factor that weighs in favour of finding that the dismissal was unfair.

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

• [89] I have made findings in relation to each matter specified in s.387 of the Act 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[75].

• [90] I have found that there was a valid reason for the dismissal. I have found that the gravity of the Applicant's misconduct, given its risk to health and safety, was serious misconduct. This weighs significantly in favour of finding the dismissal was not unfair.

• [91] The consideration under (b) weighs slightly in favour of the Applicant. The factors under (c) weigh against the Applicant.

• [92] The factors under (d) and(e), are neutral considerations.

• [93] The factors under (f) and (g) weigh against finding the dismissal was unfair but only slightly so.

• [94] I am satisfied the particular personal and economic consequences for the Applicant weigh in favour of a finding of unfairness.

• [95] The Applicant has demonstrated that he has a complete lack of insight into his misconduct. This factor weighs against finding the dismissal was unfair.

• [96] The Applicant was covered by a medical certificate at the time that the incident occurred on 8 March. Although this does not excuse his behaviour, it is a factor weighing in favour of finding that the dismissal was unfair.

• [97] While there are some failures in providing procedural fairness to the Applicant set out above as well as personal and economic consequences for the Applicant, I am not satisfied in the circumstances of this case that these factors are sufficient to displace the weight to be accorded to the valid reason for the Applicant's dismissal. That is, the gravity of the misconduct which the Applicant engaged in combined with his lack of insight into his behaviour and the factors considered under (f) and (g) weigh more significantly against a finding the dismissal was unfair than the procedural failings, the attendance at work while covered by a medical certificate and personal and economic consequences for the Applicant which weigh in favour of the Applicant. As I have found that the misconduct was serious misconduct, the Respondent was entitled to summarily dismiss the Applicant however, the Applicant was not dismissed summarily and was paid notice.

• [98] It follows from the above that having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust, or unreasonable because there was a valid reason for the dismissal, an opportunity to respond and a complete lack of insight into his conduct. The other factors weighing in favour of a finding that the dismissal was unfair were not sufficient to displace the weight I accord to other s.387 criteria and in particular the valid reason for dismissal.

• [99] Not being satisfied that the dismissal was harsh, unjust, or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the Act.

• [100] The application is dismissed. An order[76] will be issued concurrently giving effect to my decision.

[9] Ibid, pages 7-8, paras 1.15 and 1.24.

[49] PN223; PN240; PN251; PN271; PN282.

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

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

[65] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213

[67] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

[68] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

[70] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

[71] RMIT v Asher [2010] FWAFB 1200; (2010) 194 IR 1, 14-15.

[72] Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1, 7.

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

[75] 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].

[76] PR790332.

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