d) his dismissal was not a case of genuine redundancy (s.385(d)); and

e) his dismissal was not a case involving the Small Business Fair Dismissal Code (s.385(c)).

• [79] Section 387 of the Act outlines the factors to be considered in determining whether a dismissal was harsh, unjust or unreasonable. The matters to be taken into account are:

(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.

Section 387(a) - whether there was a valid reason(s) for the Applicant's dismissal

• [80] In Rode v Burwood Mitsubishi,[12] a Full Bench of the then Australian Industrial Relations Commission discussed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996, and referring to Selvachandran v Peteron Plastics Pty Ltd [13](Selvachandran). The Full Bench found:

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant's submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.

• [81] In Sydney Trains v Hilder (Hilder),[14] the Full Bench of the Commission observed in relation to s.387(a):

The principles applicable to the consideration required under s 387(a) are well established, but they require reiteration here:

(1) A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.

(2) When the reason for termination is based on the misconduct of the employee the Commission must, if it is in issue in the proceedings, determine whether the conduct occurred and what it involved.

(3) A reason would be valid because the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour).

(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee's dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).

(5) Whether an employee's conduct amounted to misconduct serious enough to give rise to the right to summary dismissal under the terms of the employee's contract of employment is not relevant to the determination of whether there was a valid reason for dismissal pursuant to s 387(a).

(6) The existence of a valid reason to dismiss is not assessed by reference to a legal right to terminate a contract of employment.

(7) The criterion for a valid reason is not whether serious misconduct as defined in reg 1.07 has occurred, since reg 1.07 has no application to s 387(a).

(8) An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant matter under s 387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.

(9) Matters raised in mitigation of misconduct which has been found to have occurred are not to be brought into account in relation to the specific consideration of valid reason under s 387(a) but rather under s 387(h) as part of the overall consideration of whether the dismissal is harsh, unjust or unreasonable.

• [82] The reasons for dismissal were outlined in the correspondence of 29 April and 9 May 2025. In the 29 April correspondence, the Respondent advised:

In summary, several of the allegations have been substantiated or partially substantiated, as set out below:

• Allegation 1: Partially Substantiated - You acknowledged that you engaged in

conduct that used offensive, intimidating and abusive verbal language towards a

member of the public on 8 April 2025 at the North Sydney Oval who was running around

the oval. In particular you said "Piss off" and "Fuck off" however we acknowledge that

you refute that you said "You are a tool" and "Are you retarded?"

• Allegation 2: Substantiated - You engaged in threatening, intimidating and

aggressive physical behaviour towards the said member of the public on 8 April 2025

at the North Sydney Oval who was running around the oval. Specifically, you:

o A) Stepped into the individual's personal space

o B) Stood over the individual in an intimidating manner

o C) Purposefully blocked the individual from their path in an inappropriate

o D) Made physical contact with the individual by grabbing the individual's shirt

• [83] The 9 May 2025 correspondence provided further:

As advised in our letter dated 29 April 2025, AFL has formed a view that you have failed to act in line with the expectations of an AFL employee, and is satisfied that your conduct amounts to behaviour in breach of your obligations under AFL Values and the AFL People Code of Conduct Policy. This includes but is not limited to your obligations under the AFL People Code of Conduct:

• do not: engage in threatening, intimidating, abusive (verbal or physical), discriminating

• do not: engage in intimidating, threatening or violent behaviour or activity that poses a

• do not: use obscene, offensive or abusive language or gestures

• act in accordance with our AFL values at all times

• good faith and in the best interests of the AFL at all times both in a personal and

• [84] In reply, the Applicant challenged the submission of the Respondent[15] that the best evidence of what occurred in the Incident was the CCTV footage. The Applicant submitted:[16]

But the best evidence of what actually happened is the only witness that was there and turned up to this Commission, Mr Kalayzich.  The CCTV footage, again acknowledged by everyone as being blocked:  it is not the best evidence when it's clearly obscured.  You have got a 40-year employee saying one thing, and you don't produce the other witness.

• [85] The "other witness" referred to above was Mr CS, however, as I have found above, there was no need to call Mr CS because the only significant footage blocked was the point of escalation identified at paragraph [16] above, where I have accepted the Applicant's evidence.

• [86] I would also refuse to accept the evidence of the Applicant where it contradicted the CCTV footage due to my conclusions at [35] to [36] above regarding the acceptability of the Applicant's evidence.

• [87] The CCTV provides clear evidence of the bulk of the Incident and presents the best evidence of what occurred. That evidence is supplemented by the evidence of the Applicant (regarding the point of escalation), Mr Hollingworth, Mr Abbott, Mr Foster, and Ms Ramsay.

• [88] The Applicant's conduct during the Incident clearly constituted a breach of the Code of Conduct for the reasons outlined in the above identified correspondence. The Applicant's conduct involved violent and abusive behaviour (both physical and verbal) which necessarily presented risk, including the risk of the Respondent being exposed to potential claims arising from his conduct. I find that the Applicant's conduct provided a valid reason for dismissal, and justified dismissal. Dismissal was a proportionate response to the conduct in question.

Section 387(b) and (c) - Notification of the reason for the dismissal/ Opportunity to respond to any reason

• [89] The principles relevant to a consideration of the matters in s. 387 (b) and (c) were

summarised by a Full Bench in Bartlett v Ingleburn Bus Services Pty Ltd [17], as follows:

The relevant principles as to the meaning and application of s 387(b) and (c) are

well-established. They may be summarised as follows:

(1) Each of the matters specified in s 387, including those in paragraphs (b) and (c),

must be taken into account as matters of significance, to the extent that they are

relevant to the particular case at hand, and given due weight.

(2) Proper consideration of s 387(b) requires a finding to be made as to whether the

applicant has been notified of "that reason" - that is, the reason for dismissal

relating to the capacity or conduct of the applicant found to be valid under s 387(a)

(3) Proper consideration of s 387(c) requires a finding to be made as to whether the

applicant has been given a real opportunity to respond to the reason for dismissal.

As a matter of logic, unless the applicant has been notified of the reason, it is

difficult to envisage that it could be found that the applicant has been afforded an

(4) Once findings are made in relation to s 387(b) and (c), they may then be weighed

together with the other matters required to be taken into account in order to form a

conclusion as to whether the applicant's dismissal was harsh, unjust or

unreasonable. Where it is found that the applicant was not notified of the reasons

for dismissal and/or was not given an opportunity to respond, a relevant

consideration as to the weight to be assigned to this is whether this meant that the

applicant was deprived of the possibility of a different outcome in terms of avoiding

• [90] The Applicant was notified of the reasons for dismissal and was given a real opportunity to respond to those reasons. He was sent the detailed show cause letter on 29 April 2025 and was able to respond to the show cause letter in the meeting of 6 May 2025.

• [91] It appears that the principal complaint of the Applicant in relation to paragraphs (b) and (c) of s.387 relates to what the Applicant maintains was a refusal by the Respondent to allow the Applicant to review the CCTV footage of the incident and appropriately respond before his employment was terminated. That refusal was submitted to be further unreasonable as he was only shown the CCTV footage once, on a small 13-inch laptop screen, without notice.

• [92] The Applicant was shown the CCTV footage in the course of the allegations meeting on 22 April 2025. As observed above, the Applicant conceded that at no point during the course of that meeting did he complain about either:[18]

(a) When in that meeting, he was shown the CCTV footage; or

(b) The quality or the size of the screen, and how he was viewing it.

• [93] The Applicant submitted the dismissal was procedurally unfair because the Respondent decided not to give him the CCTV footage before he was first asked to respond to the allegations, and that was a vital step that precluded him properly putting forward his position. That submission can really only address the sequence of the 22 April 2025 meeting, because after he was asked his version of events in that meeting, he was shown the CCTV footage.

• [94] I do not consider the sequence of the 22 April 2025 meeting can be the basis of criticism of the Respondent, or a finding of procedural unfairness. The events shown in the CCTV occurred only 14 days prior, and the Applicant could reasonably be expected to generally be able to recall those events. The Applicant conceded that he knew the meeting was about what occurred in the Incident when he entered the meeting.

• [95] After dismissal, and on 9 May 2025, the Applicant requested a copy of the CCTV footage referred to during the investigation. On 13 May 2025 Mr McBurney declined to provide a copy on confidentiality grounds, noting the footage had been shown to the Applicant during the investigation. In light of the fact that at that time the Applicant was no longer an employee, I do not consider that refusal as unreasonable.

• [96] I find that the Applicant was notified of the reasons for the dismissal and given an opportunity to respond to those reasons. Once he had seen the CCTV footage, he was able to put his entire case forward,[19] which was weeks before his dismissal.

Section 387(d) - Unreasonable refusal by the employer of a support person

• [97] The Applicant was invited to, and did in fact, bring a support person to the meetings on 22 April, and 6 and 8 May 2025. Any suggestion of improper comments being made to that support person fell away with the evidence of Mr Kennedy.

• [98] The dismissal was not for unsatisfactory performance, and this is not a relevant consideration.

Sections 387(f) and 387(g) - The size of the employer's enterprise/human resources

• [99] The Respondent is a large organisation. I consider the size of the Respondent would not have affected the procedures followed in effecting the dismissal. This is a neutral factor in relation to the question of whether the dismissal was harsh, unjust or unreasonable.

(a) Improper and unfair process employed by Respondent

• [100] The Applicant submitted the Respondent's process risked being contaminated with bias against the Applicant due to their decision to appoint Amy Adams as the person responsible for investigating the Incident, as she had previously interacted with the Applicant in 2023 and 2024 regarding two other incidents.

• [101] That submission lacked substance as Ms Adams evidence was clear that after the Applicant raised the previous interactions, Ms Adams handed over her role in the investigation to Ms Le Couteur.

• [102] The Applicant submitted the Respondent's actions were especially harsh when considering their disciplinary response to other individuals, particularly Noah Balta, who violently assaulted a man in a public car park in December 2024 by pushing him over before punching him multiple times.

• [103] Mr Balta, however, plays for the Richmond Football Club, and so is not an appropriate point of comparison. Mr McBurney's evidence, which I accept, was that if any of the Respondent's employees or umpires engaged in similar conduct to that which Mr Balta was reported to have engaged in, then the inevitable result would be termination of employment. As Mr McBurney also noted, the Balta incident occurred outside of his employment, and not while he was performing his duties as an AFL player.

• [104] The Applicant submitted that there was no training provided by the Respondent to handle the situation that the Applicant found himself in, however the unchallenged evidence of Ms Adams was that at the end of January 2025, she ran an induction session for all the VFL State League umpires and umpire coaches, including the Applicant, regarding the Code of Conduct, Inclusive Behaviour Policy, and Safeguarding Children Policy.

• [105] The Applicant's submits that the North Sydney Oval during training functioned as a closed venue with valuables in changerooms and minors present. The Applicant contends that there was no training or policy guidance on how to handle non-participants on the field and that his conduct should be evaluated against this risk and responsibility setting.

• [106] While the Applicant submitted his actions on 8 April 2025 were primarily driven from a concern for the health and safety of those under his care and their belongings, it is nonsensical to suggest that such asserted concerns are advanced by the conduct of the Applicant, particularly the conduct of a physical nature. It is apparent that the Applicant simply wanted Mr CS off North Sydney Oval immediately.

• [107] The Applicant's has a period of 40 years of service with the Respondent, however it would be a mis-statement to say that such service is without a history of warnings or counselling on any of the alleged issues prior to the dismissal. The Applicant himself identified two incidents of counselling as the basis of his, successfully, seeking the absence of Ms Adams from the investigation.

• [108] It is undoubted that the Applicant has also been recognised for his service by being an inductee of the NSW AFL Sydney umpires Hall of Fame in 2024 and being honoured as a life member in the NSW Australian Football Umpires Association and as part of AFL Sydney. The Respondent, while specifically acknowledging "all of the impressive things [the Applicant] has done"[20] and not seeking to impugn them, submitted that with all the benefits of 40 years' service come the responsibilities of such significant service.

• [109] The Applicant has purposely set aside the opportunity to work full-time as a teacher

to free up his time such that he could properly and effectively pursue his previous role

with the Respondent. The Applicant has never missed a day of work under his employment for

• [110] The Applicant submitted he is deeply passionate about Australian Rules Football and seeks reinstatement simply because he loves the sport and the game. He has loved the sport

his whole life and he found his role as Elite Umpires Coach to be deeply fulfilling in a way that no other role could. There is no alternative league which the Applicant could join which would provide the same fulfilment.

• [111] The Applicant noted that he is 62 years old and submitted there is a strong inference given the circumstances that the Respondent was more prepared to terminate his employment for this reason. I saw no evidence to support such a serious allegation. Quite to the contrary, the Respondent was ready, and in fact did, renew the Applicants term contracts each year, to allow him to work only 15 hours in what he described as a "hobby".[21]

• [112] The Applicant submitted that he had been honest through the investigative process and had made reasonable concessions in the Written Response to Allegations including expressing

genuine remorse over the situation. The Applicant acknowledged that his actions were not without fault but maintains that the dismissal was nonetheless harsh, unjust or unreasonable.

• [113] I do not consider that the Applicant has fully recognised his errors. As found at paragraphs [35] and [36] above, in the Hearing the Applicant exhibited a tendency to incorrectly characterise his actions in the Incident shown on the CCTV footage in an apparent attempt to, inappropriately, reduce the severity of his conduct.

• [114] Considering the Written Response to Allegations to which the Applicant refers, the full text of which is outlined in paragraph [30] above, that document predominantly highlighted the Applicant's historical achievements and dealings. The only "reasonable concessions" or "genuine remorse" expressed were guarded and conditional, and expressed at the fifth and sixth paragraphs as follows:

While I do not agree with every finding made in the AFL's assessment of the incident, I respect the process and accept the decision for the purposes of this review. That said, I must respectfully reserve all of my rights in relation to these findings.

In hindsight, while I believe I acted with the intent of maintaining a safe environment - for both the umpires and the integrity of the venue - I acknowledge that I overreacted to

provocation. I accept that my actions, though made with the best intentions, were not

appropriate at that moment. I should have exercised greater restraint and would approach the situation differently if presented with it again.

• [115] I have made findings in relation to all matters 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 and therefore an unfair dismissal.

• [116] I have found the Respondent had a valid reason for the dismissal of the Applicant, and that procedural fairness was afforded to the Applicant.

• [117] While there were factors specified pursuant to s.387(h) to which I would accord weight, being the Applicant's Employment history, record and loyalty, I am not persuaded that those factors alone can weigh in favour of the dismissal being found to be harsh, unjust or unreasonable, particularly where the Applicant has shown limited genuine remorse and failed to accept the seriousness of his actions. There were no other relevant matters that tended to make the dismissal harsh, unjust or unreasonable. I therefore do not find that the dismissal of the Applicant was harsh, unjust or unreasonable.

Mr M Harmer, Solicitor on behalf of the Applicant.

Mr C McDermott of Counsel, on behalf of the Respondent.

[11] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362 (Dixon J).

[12] Print R4471, at [18] and [19].

[13] [1995] IRCA 333; (1995) 62 IR 371

[14] [2020] FWCFB 1373, at [26].

[17] [2020] FWCFB 6429 at [19].

[19] Bi-Lo v Hooper [1992] 53 IR 224 at P. 229.

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