s.394 - Application for unfair dismissal remedy

Application for relief from unfair dismissal - no valid reason - lack of procedural fairness - dismissal unfair - employee due to resign the next day - one week of compensation ordered

• [1] Geoffrey Barnett worked full-time as an Engineer[1] for FCF Fabrication Pty Ltd[2] (FCF) from 26 September 2024 until 12 June 2025. From all accounts, Mr Barnett was a diligent and competent employee. Issues arose towards the end of Mr Barnett's employment. Both parties bear some blame for the issues that arose. Mr Barnett ultimately submitted notice of his resignation on 7 June 2025 and identified an end date of 13 June 2025. The trajectory of things changed after Mr Barnett sent an email to Waselah Masri (Accounts Manager) on 10 June 2025. The email requested that outstanding superannuation payments be made today and stated: "Any delay will cause serious problems." Ms Masri and Rahat (Ricky) Kumar (General Manager) took this statement as a threat and Mr Kumar summarily dismissed Mr Barnett for serious misconduct on 12 June 2025. Mr Barnett filed an unfair dismissal application on 26 June 2025. This decision concerns whether Mr Barnett was unfairly dismissed and, if necessary, what remedy should be ordered.

• Mr Barnett's application was made within 21 days of the dismissal taking effect.

• • Mr Barnett was a person protected from unfair dismissal because he had completed the minimum employment period of six months for a non-small business employer[3] and his earnings were below the high-income threshold.[4]

• The Small Business Fair Dismissal Code is not relevant because FCF was not a small business.
• Mr Barnett's dismissal was not a case of genuine redundancy.

• [3] Given my findings above in relation to the initial matters, I am required to consider the merits of Mr Barnett's unfair dismissal application.

• [4] The critical events are captured in the following documentary evidence:

1. At 2:45pm on 4 April 2025, Mr Kumar sent Mr Barnett and Kamal El-Masri (Director) an email explaining why Mr Barnett is required to clock on and off every day. Mr Kumar's disputes in his email that Mr Barnett does not have to clock on and off every day because he is a salary employee and provides an excerpt of advice from the Fair Work Ombudsman about the requirement to record hours for salaried employees on an annualised wage. Mr Kumar states Mr Barnett can email his hours for that week but directs Mr Barnett to clock on and off every day in the future.

1. At 3:03pm on 4 April 2025, Mr Barnett sent an email to Mr Kumar and Mr El-Masri. Mr Barnett indicates that he read advice that employers can ask an employee to clock on and off but it is something that can be negotiated. Mr Barnett stated:

"I will clock on and off from the Workbuddy app on my computer if that is ok. I will find out how to do that on Monday. From memory, it was just a matter of resetting the Work Department and Manager."

1. At 7:03am on 29 April 2025, Mr Barnett sent an email to Mr El-Masri and Mr Kumar indicating that he does not need to clock in and out every day as he is on a salary contract. Mr Barnett indicates he believes he can comply with record keeping requirements by submitting his hours on a weekly basis.

1. Mr El-Masri sent an email to Mr Barnett and Mr Kumar at 7:04am on 29 April 2025 which stated: "Geoff, Please clock in and out daily."

1. On 30 April 2025, Mr Barnett sent another email to Mr El-Masri and Mr Kumar which stated:

"I am not clocking in and out every day. I am not a factory worker.

I will fill out my time sheet at the end of the week as is normal in the industry.

If there is any reason to do otherwise, please explain it to me."

1. Mr Barnett submitted notice of his resignation on 7 June 2025 and identified that his employment would end on 13 June 2025. Mr Barnett identified the reasons for his resignation as being that he was not paid for the week ending 9 May 2025 and his superannuation contributions had not been paid. Importantly, Mr Barnett stated FCF will pay his outstanding entitlements and superannuation contributions by 20 June 2025 or "face legal action(s)."

1. Mr Barnett sent an email to Ms Masri at 5:03pm on 10 June 2025. Mr Barnett stated that two superannuation payments owed to him appear extremely overdue. Mr Barnett provided updated fund details and stated:

1. Mr Kumar sent an email to Mr Barnett at 2:30am on 11 June 2025 which states: "Its (sic) unfortunate you've decided to part ways with us. I accept your resignation. I accept the 13th of June will be your last day."

1. Mr Kumar sent an email to Mr Barnett, Mr El-Masri, and Ms Masri at 2:30am on 11 June 2025. Mr Kumar's email states:

"Your Super has always been paid. Your current issue with your Super is due to your details bouncing back when payment is attempted. You know this and have spoken to Waselah about it. Again Geoff, not sure why you would put it on your resignation when you know exactly what is going on.

Again, no sit down was arranged with your direct manager (Kamal) to discuss this.

See below, you were notified on the 15th of May that we needed Super details as there was a problem with payment. You've also been paid Super in the past so why make it like we aren't paying it? See that snip below..."

Mr Kumar attached screen shots of text messages from Ms Masri to Mr Barnett on 15 May 2025 and 5 June 2025 where Ms Masri asked for Mr Barnett's superannuation details.

1. Ms Masri forwarded Mr Barnett's email to Mr Kumar at 11:01am on 11 June 2025 and stated:

"Is he threatening me? I feel threatened, this has really upset me. I'm trying to hold it together for Robyn, but I might go home. What if he turns up here? I don't feel safe, can you call me pls."

1. Mr Kumar sent a text message to Mr Barnett at 6:42am on 12 June 2025 which directed Mr Barnett not to attend work and stated his employment was terminated due to aggressive behaviour towards another employee.

1. Mr Kumar sent an email to Mr Barnett at 8:45am on 12 June 2025. The email stated the following with reference to Ms Masri's email:

"Below is an email I received. I've also received a call this morning further to this email.

I will not tolerate this type of behaviour in the workplace.

This is serious misconduct as it violates the fundamental principles of a safe and respectful work environment and breeches (sic) your notice you provide.

As of today you are no longer required to come to work and your notice has been terminated.

You will be paid up until 11th of June. You will receive all your entitlements owing to you.

I will have someone contact you soon to organise any personal belongings you may have and retrieve any company belongings.

Due to the serious nature of your actions, we will contact authorities if you don't keep clear of work premises and the employees."

1. On 19 June 2025, Ms Masri sent Mr El-Masri, Mr Kumar, and Mr Barnett an email confirming she had resolved the issues with Mr Barnett's superannuation fund. Ms Masri indicated the fund's ABN had changed and that is why the payment she had attempted to make was rejected. Ms Masri indicated the fund stated it was Mr Barnett's duty to notify FCF of the changed details. Ms Masri states she will process the superannuation contribution that morning.

• [5] Ms Masri also provided evidence that she noticed on 30 May 2025 that Mr Barnett had already recorded his finishing time for that day even though it was only midday and Mr Barnett had not finished work. Ms Masri gave evidence Mr Barnett was entering his work times before the day had even started. Ms Masri gave evidence that she called Mr Barnett to find out what was going on. Ms Masri states she referred during the call to all employees being subject to the same timekeeping rules and that Mr Barnett stated: "I am not everyone else." Ms Masri states she removed Mr Barnett's access to the timesheets which Mr Barnett had been using to record his hours on his computer. Ms Masri gave evidence that Mr Barnett was "very disgruntled" about the call. Mr Barnett did not undermine Ms Masri's evidence about this phone call during cross-examination.

• [6] I consider the evidence establishes that Mr Barnett became quite a difficult employee for FCF to manage from at least around April 2025.

• [7] I agree with FCF that its direction for Mr Barnett to record his working hours each day was a lawful and reasonable direction that Mr Barnett was required to comply with, even though he was paid an annual salary. There are a range of reasons for FCF to require Mr Barnett to accurately record his hours, including to ensure that Mr Barnett was not underpaid and to comply with its safety obligations. It is unclear why Mr Barnett was so concerned about recording his working hours each day and his resistance to doing this naturally creates suspicion as to the reason why. I consider Mr Barnett's unreasonable actions in relation to the recording of his working time led to a breakdown in his relationship with FCF.

• [8] Mr Barnett also behaved somewhat unreasonably in relation to his outstanding superannuation contributions. The evidence suggests Mr Barnett would have received his outstanding superannuation contributions on around 15 May 2025 if he had complied with Ms Masri's request for him to provide his updated superannuation account details.

• [9] However, I consider FCF was also at fault for not advising Mr Barnett, and other affected employees, that it was unable to pay superannuation contributions on the due date of around 18 April 2025. Mr Barnett was entitled to be advised about this issue in a timely manner. Mr Barnett was also entitled as an employee to raise concerns about FCF not meeting its superannuation obligations and Mr Barnett had a workplace right not to have adverse action taken against him for raising these concerns.

• [10] In any event, the key issue in determining whether Mr Barnett was unfairly dismissed by FCF is what to make of Mr Barnett's email to Ms Masri on 10 June 2025 and particularly his inclusion of the words: "Any delay will cause serious problems."

• [11] I can understand why FCF was concerned about the language used in Mr Barnett's email to Ms Masri. Mr Barnett could clearly have used better language. However, I accept Mr Barnett's evidence given during the hearing that he was referring to taking legal action, potentially through the Australian Taxation Office, if the outstanding amount was not paid and that Mr Barnett was not intending to convey a threat to physically harm Ms Masri. Mr Barnett's explanation is also consistent with his resignation letter where he referred to FCF facing "legal action" if his entitlements were not paid. It would obviously have been much better if Mr Barnett used this same language in his email to Ms Masri. Mr Barnett's language left scope for the concerns raised by FCF to arise.

• [12] In addition, Mr Kumar was unable to identify any previous examples of Mr Barnett behaving aggressively or violently during his employment. Mr Barnett also did not present that way during the hearing. There is an important and substantial difference between an employee that is difficult to deal with and prepared to strongly defend their legal rights in written communications, and an employee that threatens violence against another employee. I consider Mr Barnett clearly falls into the former category.

• [13] Section 387 of the FW 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.

• [14] I am required to consider each of these factors, to the extent they are relevant to the factual circumstances before me.[5]

Was there a valid reason for dismissal related to Mr Barnett's capacity or conduct?

• [15] In order to be a valid reason, the reason for the dismissal should be "sound, defensible or well founded"[6] and should not be "capricious, fanciful, spiteful or prejudiced."[7] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[8]

• [16] I find that there was not a valid reason for FCF's decision to dismiss Mr Barnett on 12 June 2025. I do not accept that Mr Barnett's email to Ms Masri on 10 June 2025 is fairly interpreted in all the circumstances as a threat of any sort of physical harm to Ms Masri. I consider Mr Barnett was referring to the prospect of legal action if his outstanding superannuation contributions were not paid. Mr Barnett was entitled to raise the prospect of legal action to apply some pressure to FCF to pay his outstanding entitlements. It is common for letters of demand to refer to further consequences if the requested amount is not paid.

• [17] It is conceivable that Mr Barnett's refusal to comply with the direction to clock on and off each day could have constituted a valid reason for dismissal.[9] However, given FCF appears to have reluctantly agreed to allow Mr Barnett to use an alternative method of recording his hours until Ms Masri removed Mr Barnett's access on 30 May 2025, I do not consider it is a valid reason for dismissal in this case.

• [18] The lack of a valid reason related to Mr Barnett's capacity or conduct weighs in favour of finding Mr Barnett's dismissal was unjust and unreasonable.

Was Mr Barnett notified of the reason for dismissal?

• [19] Proper consideration of s.387(b) requires a finding to be made as to whether Mr Barnett "was notified of that reason". Contextually, the reference to "that reason" is the valid reason found to exist under s.387(a).[10]

• [20] 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,[11] and in explicit[12] and plain and clear terms.[13]

• [21] I find Mr Barnett was not notified of the reason for his dismissal before Mr Kumar informed Mr Barnett that his employment was terminated on 12 June 2025. There is no evidence that FCF had any conversations with Mr Barnett before Mr Kumar sent text messages and an email communicating the dismissal to Mr Barnett on 12 June 2025.

• [22] This factor weighs in favour of finding Mr Barnett's dismissal was unjust and unreasonable.

Was Mr Barnett given an opportunity to respond to the valid reason?

• [23] 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.[14]

• [24] The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly.[15] 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 this concern, this is enough to satisfy the requirements.[16]

• [25] I find Mr Barnett was not provided with an opportunity to respond to the reason for his dismissal before Mr Kumar informed Mr Barnett that his employment was terminated on 12 June 2025. There is no evidence that FCF had any conversations with Mr Barnett before Mr Kumar sent text messages and an email communicating the dismissal to Mr Barnett on 12 June 2025.

• [26] This factor weighs in favour of finding Mr Barnett's dismissal was unjust and unreasonable.

Did FCF unreasonably refuse to allow Mr Barnett to have a support person present to assist at discussions relating to the dismissal?

• [27] This is a neutral factor given there were no discussions relating to the dismissal.

Was Mr Barnett warned about unsatisfactory performance before the dismissal?

• [28] Mr Barnett was not dismissed due to unsatisfactory performance. This factor is neutral.

To what degree would the size of FCF's enterprise be likely to impact on the procedures followed in effecting the dismissal?

• [29] I accept FCF is a reasonably small business and that this is likely to have impacted on the procedures that were followed in effecting Mr Barnett's dismissal. I consider this factor marginally reduces the weight that should be given to the procedural fairness issues in the overall assessment of unfairness.

To what degree would the absence of dedicated human resource management specialists or expertise in FCF's enterprise be likely to impact on the procedures followed in effecting the dismissal?

• [30] I accept the absence of dedicated human resource specialists is likely to have had an impact on the procedures that were followed in effecting Mr Barnett's dismissal. I consider this factor marginally reduces the weight that should be given to the procedural fairness issues in the overall assessment of unfairness.

• [31] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

• [32] Neither party argued there were any other relevant factors that should be considered. I find there are not any other relevant matters.

• [33] I have made findings in relation to each matter specified in s.387 of the FW Act. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[17]

• [34] Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of Mr Barnett was unjust and unreasonable. There was not a valid reason for Mr Barnett's dismissal and Mr Barnett was denied procedural fairness. None of the factors weigh against finding that Mr Barnett was unfairly dismissed.

• [35] I find Mr Barnett was unfairly dismissed.

• [36] Mr Barnett does not seek reinstatement. I am satisfied reinstatement is not appropriate in this case.

• [37] After considering the various factors in s.392 of the FW Act, I have determined it is appropriate to make an order for FCF to pay Mr Barnett compensation of one week's wages. Based on an annual salary rate of $90,000 that equates to $1,730.77 gross plus superannuation of $199.04.[18]

• [38] The main reasons for settling on the figure of one week's wages are:

• Mr Barnett was intending to resign on 13 June 2025 which was the day after his dismissal.
• Mr Barnett should not have been summarily dismissed and should have received one week of notice of termination when FCF decided to dismiss Mr Barnett before his resignation took effect.
• Mr Barnett's conduct contributed to the dismissal in that the language he used in his email to Ms Masri was ambiguous and he had created tension in the employment relationship via his behaviour in relation to the direction to clock on and off.
• I consider it is relevant that FCF was struggling to deal with Mr Barnett's behaviour in the workplace and this impacted on its response to the words used in his email to Ms Masri.

• [39] I am satisfied that the level of compensation is appropriate.

• [40] Given my findings above, I will make an order that FCF must pay Mr Barnett $1,730.77 less taxation, plus superannuation of $199.04 to be paid into Mr Barnett's nominated fund, with both payments to be made within fourteen (14) days of the date of this decision.

[1] The parties referred to Mr Barnett as a Draughtsman but his contract identifies the position as Engineer.

[2] Mr Barnett argued the correct employer is FCF Group Pty Ltd. I do not think that is correct having viewed one of Mr Barnett's payslips, an excerpt from his employment contract, his resignation letter, and his email signature.

[3] Mr Barnett indicated on his application that FCFF has 15-49 employees. This was not contested by FCF.

[4] Mr Barnett was on an annual salary of $90,000.

[5] 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].

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

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

[9] The valid reason found by the Commission does not have to be the reason identified by the employer: Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185, [45] citing Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 377-8.

[10] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

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

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

[14] 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].

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

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

[17] 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].

[18] Mr Barnett was dismissed on 12 June 2025, the minimum superannuation rate at that time was 11.5%.

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