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[97]
[2026] FWC 501
General information, not legal advice.
Fair Work Commission
2026-02-17
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Application for unfair dismissal remedy - jurisdictional objection - compliance with small business fair dismissal code (SBFDC) - found employer held reasonable belief Applicant engaged in serious misconduct - SBFDC complied with - application dismissed.
[1] On 27 August 2025, Mr Glenn Hughes (the Applicant) lodged an application for unfair dismissal remedy against Project Air Melbourne Pty Ltd (the Respondent or Project Air) under Part 3-2 of the Fair Work Act 2009 (Cth) (the Act).
[2] Mr Hughes alleges that on 6 August 2025, he was unfairly dismissed because he had already resigned, was not made aware of issues with his conduct or performance, not provided details of complaints made against him, or provided a fair opportunity to respond before being dismissed. He seeks to have his termination converted to a resignation and to be paid redundancy and notice entitlements he believes he has been denied.
[3] On 10th September 2025, the Respondent filed a Form F3 Response and raised a jurisdictional objection that it's decision to dismiss Mr Hughes was made in line with the requirements of the Small Business Fair Dismissal Code (SBFDC). On this basis, they submit it was not unfair and that his application should be dismissed.
[4] On 30th September 2025, I directed that Mr Hughes' application and the Respondent's objection would be considered by way of hearing on the 30th of November. Information about the meaning of unfair dismissal within the FW Act and the requirements of the SBFDC that I am required to take into account in considering this matter were provided to the parties.
[5] Mr Hughes represented himself in proceedings and provided sworn evidence in support of his written submissions and material filed in accordance with my directions. He was assisted in proceedings and by the sworn evidence of Mr Garry Smith, his support person. Ms Dumigan, Director for the Respondent, presented their position in proceedings and provided sworn evidence. The Respondent's case was supported by written submissions and material in addition to the sworn evidence of Mr Dumigan, Ms Dumigan's husband and co-director.
[6] A digital court book was compiled from the material that was filed by both parties and distributed prior to the hearing. The court book was accepted by the parties into evidence. To the extent relevant, I rely on the court book as a record of the material filed by the parties with appropriate weight being given to all the material after an assessment of its relevance and its character (e.g. hearsay, opinion/submission).
[7] Section 385 of the Act outlines the meaning of "unfair dismissal":
A person has been unfairly dismissed if the FWC is satisfied that:
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy."
[8] Section 388 of the Act outlines the Small Business Fair Dismissal Code objection:
(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
(2) A person's dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person's employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal."
[9] Section s.396 of the Act prescribes that consideration whether the dismissal was harsh, unjust, or unreasonable cannot occur unless the Commission is first satisfied that the provisions of this section have been met.
[10] It is not contested, and I am satisfied that Mr Hughes' application was made within the required timeframe. It is also not contested, and I am satisfied that Mr Hughes was a person protected from unfair dismissal.
[11] There is no contention, and I am satisfied that this not a case of genuine redundancy.
[12] Consideration as to whether the dismissal was harsh, unjust, or unreasonable cannot occur if the dismissal was consistent with the SBFDC pursuant to s.388 of the Act.
[13] It is not contested that the Respondent is a small business within the meaning of the Act. Mr Hughes accepted this to be the case in both proceedings and his F2 Application form. The Respondent's evidence supports this conclusion, and I am satisfied this is the case.
[14] In broad terms, the second element of the Respondent's jurisdictional objection involves an assessment of whether the Respondent believed on reasonable grounds that Mr Hughes' conduct was sufficiently serious to justify immediate dismissal. The context and substance of Mr Hughes' conduct are in dispute.
The Small Business Fair Dismissal Code comes into operation on 1 July 2009.
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. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to the Fair Work Commission, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements."
[16] The effect of s.385(c) of the Act is that when a dismissal is consistent with the Code, it is not an unfair dismissal, and the application must then be dismissed. If the dismissal is not consistent with the Code, the Commission must then consider whether the dismissal is unfair on the basis of the general criteria in s.387 of the Act. The Code deals with "summary dismissal" on the ground of serious misconduct and "other dismissal" on the basis of the employee's conduct or capacity to do the job.
[17] In addition to maintaining he had already resigned, Mr Hughes argues the conduct he is alleged to have engaged in was not serious misconduct for which he should have been dismissed.
[18] The Respondent's position is it summarily dismissed Mr Hughes for the following reasons:
[19] The termination letter Mr Hughes received on the 7th of August advised him that:
"Considering the above, your actions amount to a fundamental breach of trust, contractual obligation, and health and safety responsibilities. Accordingly, your employment with Project Air Melbourne Pty Ltd is hereby terminated with immediate effect."
[20] I have considered all the evidence and submissions in this matter. I am satisfied that Project Air had reasonable grounds to conclude Mr Hughes engaged in serious misconduct. I am also satisfised the Respondent is as small business that has complied with the SBFDC. Because of these findings, Mr Hughes' application must be dismissed.
[21] The reasons for this conclusion are below.
[22] Mr Hughes' position is that the grounds for his dismissal are without foundation. He does not accept he has engaged in serious misconduct and argues he has not been provided with an opportunity to respond to the details of the allegations against him, provided procedural fairness or had his responses properly considered before being dismissed.
[23] Mr Hughes identifies that on the 24th of July, he sent an email to Mr Dumigan giving notice he was resigning with 3 weeks' notice and would end his employment with Project Air on August 13th. He argues the Respondent did not acknowledge this email, that it was ignored and never discussed - not even during his final disciplinary meeting on the 6th of August. Adding that after he resigned, he was unfairly dismissed so the Respondent would not have to pay him redundancy for 3.4 years' service.
[24] Mr Hughes' evidence is he decided to resign because of how he felt he was being treated and because he secured another job that he commenced on August 18th. He submits that since he was injured at work towards the end of 2024 and required to make a workplace injury claim, the Respondent has been determined to get rid of him. He argues he had no issues with his employment until after he was injured. Since being injured he submits things have gotten worse. That the Respondent failed to be clear with him about when and where he was to be working, created a toxic work environment and forced him wait for correct materials to be delivered so jobs he was assigned could be completed.
[25] Mr Hughes does not accept that he did anything wrong in performing external work for a friend on the 10th of February and "signed off" on the work as an employee of the Respondent. He argues, he had done so previously with the Respondent being aware and without any concerns being identified. Adding that because he was conscious of the limitations on his lifting capacity he arranged for assistance with the job so he wouldn't aggravate his injury.
[26] Mr Hughes accepts he did not seek permission to perform this work. He also accepts that when completing his Workcover certificates of incapacity from January to July 2025, he overlooked the disclosure box and did not declare he had been engaged in work outside of his employment. His evidence is his wife helped complete these forms, and that he was told they just needed to be signed off and sent - so that's what he arranged to do. Adding that he has since made Workcover aware of his oversight and been told nothing further is required.
[28] In terms of his conduct and performance, Mr Hughes' position is that up until the filing of his Workcover claim his employment was without issue. He accepts after this time he was made aware he had allegedly engaged in unsatisfactory behaviour on several work sites. He says that he repeatedly asked for details of his behaviour, but that he was only ever provided details of a single incident. Mr Hughes accepts his conduct could have been better and that he only lost his cool because of the unreasonable pressures he was confronted with. He submits that since this incident he has made every effort to ensure his behaviour was appropriate and has not been provided details to suggest otherwise. Further, that he was not provided any assistance by the Respondent to address their apparent concerns with his behaviour or provided clear training and instruction on what was required.
[30] Mr Smith's evidence of the meeting on the 6th of August is that the Respondent presented several serious allegations supported by volumes of information and demanded Mr Hughes provide a response. He felt the material provided, the questions being asked and the time being allowed for Mr Hughes to respond was overwhelming. That Mr Hughes found it challenging to get his head around everything that was being put to him, and that he asked for more specific information of the complaints and allegations against Mr Hughes that the Respondent refused to provide.
[32] Mr Hughes' evidence of the information he was given about the Respondent's concerns also became clearer under cross examination. He accepted that on the 5th of June he participated in a discussion with both Mr and Mrs Dumigan on the floor of the workshop where they identified several concerns. He does not dispute these concerns included alleged complaints from clients about his behaviour onsite, his interest in the prices of AC units, and the lapse of his VBA licence. Further, that at the meeting's conclusion, he understood that if he failed to address the Respondent's concerns, he could be subject to formal disciplinary action.
[33] Mr Hughes' submission is that he was not provided any notice of this meeting, not provided an opportunity to be represented or provided the specifics details of the complaints that have been made about his behaviour by clients. Further, that he felt he was being pressured to resign after this meeting occurred.
[34] Following the meeting on the 5th of June, Mr Hughes accepts on the 16th of July he was sent a letter from Ms Dumigan setting out additional concerns with his employment. He accepts these concerns included both him engaging in external work and that he continued to vent his personal frustrations in the presence of clients and colleagues.
[35] Mr Hughes' evidence is that he responded to this email on the 27th of July. In his response, he explains the reasons for his frustrations are the company's failure to source and organise the correct material for jobs to be available on site, answer his calls and respond to his requests. His response also seeks further information about the company's concerns with him performing external work.
[37] Mr Hughes also identifies that he never signed a formal employment with the Respondent because he was never provided with one. That his hourly wages were cut by $10 without any basis and that he is challenged by dyslexia.
[38] The Respondent's principal position is that it formed a reasonable belief, based on documentary evidence and Mr Hughes' own admissions, that he had engaged in serious misconduct by performing outside work, without permission or authority, and by failing to disclose this work in his declarations to Workcover. They argue his conduct was contrary to his employment obligations, created a significant and intolerable risk to the business and undermined its trust and confidence in Mr Hughes. Further, adding that ongoing concerns with his conduct and performance that had been brought to his attention and had failed to be addressed confirmed their decision to end his employment on the 6th of August 2025.
[39] As a small business employer, the Respondent identifies it has also complied with all the requirements of the SBFDC. Firstly, that Mr Hughes was provided with written notice of the employer's concerns and a clear warning he may be dismissed in the meeting invite he was sent on August 4th to attend a meeting on August 6th. That his invitation made Mr Hughes aware he was entitled to have a support person present and that the issues to be discussed were the serious concerns previously raised with him. That Mr Hughes was provided an opportunity to respond at this meeting and, finally, that his response was properly considered prior to a decision being made to terminate his employment.
[40] The Respondent submits it reached a conclusion Mr Hughes had engaged in serious misconduct based on the evidence it discovered he had signed a VBA Compliance Certificate for plumbing works at a property in Berwick as the licenced practitioner using the company's public liability insurance without authorisation. Mr Hughes did not deny this to be the case.
[42] In terms of Mr Hughes resigning from this employment prior to being dismissed, the Respondent submits the first time it received his resignation was on the evening of the 6th of August, after he had already been dismissed. Adding further, that at no time in any discussion after the 24th of July - including the termination meeting, did Mr Hughes refer to his purported resignation and that he was supposed to be finishing work at the end of that week.
[43] The Respondent also identifies Mr Hughes was provided procedural fairness, the opportunity to have a support person present and the opportunity to respond to the allegations against him. That he was also provided a warning and opportunity to improve his conduct and performance on the 5th of June and failed to do so. That he was provided written details of the Respondent's concerns on the 16th and 29th of July. Adding that, up until it discovered evidence of Mr Hughes signing off on external work its concerns were only circumstantial given his denials because of his requests for information about the purchase of air-conditioning units.
[44] Both Mr Dumigan and Ms Dumigan provided clear and consistent evidence in support of the Respondent's submissions. Their final position is that Mr Hughes' misconduct was a serious breach of trust. That it was dishonest, reckless and destroyed the relationship of trust between the employer and employee.
[45] It is not in dispute that at the time Mr Hughes was dismissed the Respondent had fewer than 15 employees and meets the definition of a smalls business employer under the FW Act. I am satisfied this is the case.
[46] It follows, that the Respondent is entitled to claim to have complied with the SBFDC in defending Mr Hughes' application for remedy under the unfair dismissal provisions of the Act.
[47] The Respondent accepts that it made the decision to terminate Mr Hughes on the 6th of August with immediate effect for serious misconduct.
[48] For the Respondent to have summarily dismissed Mr Hughes in compliance with the SBFDC, I must be satisfied it believed on reasonable grounds Mr Hughes had engaged in theft, fraud, violence or serious breaches of OH&S procedures that were sufficiently serious to justify immediate dismissal.
[50] The approach to this question required of the Commission has been described by a Full Bench in Pinawin T/A RoseVi.Hair.Face.Body v Domingo (Pinawin) in the following terms:
"[29] ...There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee's conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.
[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned."
[51] The context for these observations was set by the Full Bench in the discussion that led to this point:
"[27] Deputy President Bartel in Narong Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Cafe said:
[60] At the outset it is appropriate to note that unlike a consideration of the dismissal of an employee of a business that is not a small business employer, the function of FWA is not to determine on the evidence whether there was a valid reason for dismissal. That is, the exercise in the present matter does not involve a finding on the evidence as to whether the Applicant did or did not steal the money. The application of the Small Business Fair Dismissal Code involves a determination as to whether there were reasonable grounds on which the Respondent reached the view that the Applicant's conduct was serious enough to justify immediate dismissal. As such, the determination is to be based on the knowledge available to the employer at the time of the dismissal, and necessarily involves an assessment of the reasonableness of the steps taken by the employer to gather relevant information on which the decision to dismiss was based.
[28] Senior Deputy President O'Callaghan in Harley v Rosecrest Asset Pty Ltd T/A Can Do International said:
[8] For an employer to believe on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal, it is firstly necessary for the employer to establish that the employer did in fact hold the belief that as a matter of fact that (i) the conduct was by the employee; (ii) the conduct was serious; and (iii) that the conduct justified immediate dismissal. This is to be contrasted to the provisions of s.387(a) where FWA, in determining whether there was a valid reason for the dismissal, must find whether the conduct in fact occurred.
[9] Secondly, it is necessary for the employer to establish that there are reasonable grounds for the employer holding the belief. It is thus necessary for the employer to establish a basis for the belief held which is reasonable. In this regard it would usually be necessary for the employer to establish what inquires or investigations were made to support a basis for holding the belief. It would also ordinarily be expected that the belief held be put to the employee, even though the grounds for holding it may not be. Failure to make sufficient inquiries or to put the accusation to the employee in many circumstances might lead to a view that there were no reasonable grounds for the belief to be held." (references omitted)
[52] The Respondent's position is it had a reasonable belief Mr Hughes had engaged in fraud and dishonesty by completing unauthorised external work using and issuing VBA compliance certificates relying on the Respondent's public liability insurance. When these concerns were initially put to Mr Hughes, he denied them. When the Respondent discovered Mr Hughes had signed off on a job in Berwick on the 10th of February their concerns were confirmed.
[54] The Respondent's submissions where it had never given permission for any of its employees to complete VBA certification sign offs for external work. Their position is that they were not prepared to accept the risk of liability arising from the exposure of their public liability insurance policy with jobs they had no knowledge or assessment of. Both Mr and Mrs Dumigan gave clear and convincing evidence to the Commission that this was the basis of their concerns. I am satisfied these concerns were reasonable and that an employee engaging in unauthorised external work was of serious concern to the Respondent.
[55] It is not in dispute that Mr Hughes engaged in the external work alleged and without permission. His argument is that he and other employees had regularly done external work and it had never been an issue. He also argues that because he was not provided with a contract of employment, he owed no obligations of trust and honesty to his employer.
[56] Mr Hughes did not present any additional evidence to support his position that performing external work was a common occurrence at Project Air. In this regard, I prefer the Respondent's evidence that this was not the case.
[57] I also do not accept Mr Hughes was unaware as an experienced employee that he owed general and implied obligations of trust and honesty to his employer, whether he had signed an employment contract or not.
[58] In not seeking approval, and then not disclosing the external work he performed while under workers compensations restrictions, I am satisfied Mr Hughes engaged in serious misconduct. I am satisfied that the Respondent's reasonable belief he engaged in this conduct justified his summary dismissal in compliance with the SBFDC.
[59] I am further satisfied that Mr Hughes' failure to disclose that he completed external work in his Workcover declarations presents a further ground of serious misconduct, which his employer reasonably believed he had engaged in justifying his dismissal.
[60] Mr Hughes accepts he did not complete these forms correctly. I accept his evidence that it is more likely than not he did so by mistake and without an intention to deceive. I have considered all the circumstances confronting Mr Hughes, from his dyslexia, to allegedly being forced to resign on the 24th of July and being treated differently just because he had made a workers compensation claim. In doing so, I am satisfied that Mr Hughes' conduct was not motivated by malice or neglect. He was clearly confronted with a difficult situation as his employment relationship deteriorated after being injured.
[61] What Mr Hughes intended or may have been feeling, however, are not what I am required to determine. What is required is whether I am satisfied his employer had reasonable grounds to believe he had engaged in serious misconduct while he remained employed. That Mr Hughes may, or may not, have resigned on the 24th of July is immaterial to this consideration.
[62] He remained an employee of the Respondent up until the 6th of August. He was dismissed because his employer formed a reasonable belief he had engaged in serious misconduct.
[63] For the reasons set about above, I am satisfied that this is the case.
[64] As a result of these findings, I am satisfied the Respondent has complied with the requirements of the SBFDC.
[65] Accordingly, Mr Hughes' application is dismissed for want of jurisdiction.
Ms K Dumigan and Mr S Dumigan on behalf of the Respondent
[1] See Transcript of Proceedings on 26 November 2025 PN144-165.
[5] See Respondent's outline of argument: objections, Court Book (CB) p. 297, PN327.
[6] [2015] FWCFB 5264 at [43].
Printed by authority of the Commonwealth Government Printer
Glenn Hughes
Project Air Melbourne Pty Ltd [2026] FWC 501