1. That on July 3rd 2025 Mr Mawhinney had contact with a client builder who had raised that some work was incomplete. He contacted the Applicant by text advising that the builder was looking to know when the work would be completed. That the Applicant then called him and started swearing, repeating multiple times "Are you (expletive) serious?" That Mr Mawhinney calmy explained that the builder was in the process of completing handover and required the clips which were to have been installed earlier that week and asked the Applicant "Why are you carrying on". That the Applicant again responded aggressively ""Are you (expletive) serious?" Mr Mawhinney then terminated the call. Mr Mawhinney claimed the Applicant called him back and he told him that he wouldn't talk to him while he was so angry. Mr Mawhinney claims that the Applicant said he didn't care what Mr Mawhinney thought and that "George can ram those (expletive) things down his throat, he knows where they are". Mr Mawhinney says he advised the Applicant that they were to be installed days earlier and asked him again why he was being so aggressive. Mr Mawhinney says that the Applicant responded with "Just wait till I see George" which Mr Mawhinney took to be a threat towards his client and he again terminated the call.

1. That on the morning of 7 July 2025, Mr Mawhinney received advice from another client about an email interchange with the Applicant that he believed could have severed the business relationship with that client. The email volley was attached and demonstrated an email interchange between the Applicant and a client Mr Woodroffe.

1. The email demonstrates that on Tuesday 1 July 2025 at 3.51pm, Mr Woodroffe emailed the Applicant with a scope of works requesting a quote.
2. The Applicant responded the following day at 7.27am (Wednesday 2 July 2025 saying: "I will give this one a miss thanks anyway."
3. A short time later at 8.29am Mr Woodroffe responded to the Applicant saying "In our line of business you have to take the good with the bad because you never know where it might lead. The well has just dried up!" and
4. the Applicant responded the following day, 3 July 2025 at 8.14pm saying "Fuck you and your well don't ever contact me again you low piece of shit".
5. The client Mr Woodroffe forwarded this email to the Respondent on Monday 7 July 2025.

• d. At that point Mr Mawhinney made the decision to terminate the Applicant's employment, phoned him to tell him and followed it up with a termination letter.[4]

• 4. Mr George Thomas was a client of the Respondent. He stated in his witness statement that he contacted Mr Mawhinney on Thursday 3 July 2024 to enquire about incomplete work at a job he was handing over. Following that he claimed to have received a call from the Applicant during which the Applicant advised him that it "wasn't right" for him to be enquiring about a job, that it was out of order to be contacted about this and that he said words to the effect of "I can show you where the clips are and Ill ram them down your throat". Mr Thomas claimed the call was terminated and that he had then contacted Mr Mawhinney to tell him what had happened.[5]

• 5. Mr Greg Woodroffe was also a client of the Respondent. He stated in his witness statement that prior to July 3rd 2024 he had been in contact with the Applicant regarding a possible small job he was hoping to have the Applicant complete for him separate to Westwood kitchens. On Thursday July 3rd 2025, he stated that he received an email from the Applicant in which the Applicant "used foul expletives towards me". Further Mr Woodroffe stated that he forwarded the email to the Respondent on Monday 7th July 2025 and that he advised the Respondent that he was considering severing the working relationship with Westwood kitchens as a consequence of the email exchange combined with other previous issues he had experienced with the Applicant's onsite demeanor with clients and other trades.[6]

• [15] I accept the unchallenged evidence that WC had only seven employees at the time of Mr Ogilvie's dismissal, and that it has no associated entities. WC was a small business employer within the meaning of s 23 of the Act. It is therefore necessary to determine whether, as WC contends, the dismissal was consistent with the Code. If it was, the dismissal was not unfair (see ss 385(c) and 388(2) of the Act).

• [16] WC relies on the first of the Code's two limbs, which states:

'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.'

• [17] WC contends that it reasonably believed that the matters in the termination letter were serious enough to warrant immediate dismissal. Mr Mawhinney said as much in the termination letter. I find that this was WC's belief. The question then is whether this belief was held on reasonable grounds, as the Code requires it to be.

• [18] It is not necessary to demonstrate that the employer had reasonable grounds for believing that each of the relevant instances of alleged misconduct was sufficiently serious to justify immediate dismissal. It is sufficient that the employer believes on reasonable ground that any of the relevant conduct was sufficiently serious to warrant this course.

• [19] In my view, it is clear that there were reasonable grounds for WC to believe that Mr Ogilvie had engaged in abusive and threatening conduct with its clients, threatening WC with the potential loss of those clients, and that this was a serious matter justifying immediate dismissal. It was reasonable for WC to expect that Mr Ogilvie behave reasonably towards its clients and that Mr Ogilvie's conduct put at risk WC's relationship with those clients. Loss of clients for a small business, particularly in circumstances where they are aggrieved by how they have been treated, can have a direct impact on its profitability, viability and reputation.

• [20] As the employer had, at the time of Mr Ogilvie's dismissal, fewer than 15 employees, I find the employer is a 'small business employer'. Further, I am satisfied that WC had made sufficient enquiry from two of its clients, to satisfy itself that it held a reasonable belief that Mr Ogilvie's conduct gave rise to a serious and imminent risk to the reputation, viability or profitability of his small business employer's business and in the alternative involved wilful or deliberate behaviour that was inconsistent with the continuation of the contract of employment.[7]

• [21] On this basis the application must be dismissed. I order accordingly.

[1] Digital Court Book (DCB) p.4 at [3.1].

[2] Fair Work Act 2009 (Cth) s.382.

[3] Ibid s.388. See also DCB p.11.

[7] Fair Work Regulations 2009 (Cth) Reg 1.07.

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