Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - summary dismissal - Respondent under external administration - dismissal harsh and unjust - remedy granted - compensation awarded.

• [1] On 8 January 2025, Mr Irfan Shaik (the Applicant) made an application to the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) stating that he was unfairly dismissed from his employment with Field Solutions Group (the Respondent). In February 2025, the Respondent entered external administration and receivers were appointed. The company administrators informed the Commission that they would not be taking an active role in the matter.

• [2] The matter was listed for an in-person hearing on 8 May 2025. The Applicant was self-represented. There was no appearance for the Respondent.

• [3] Section 396 of the Act requires satisfaction of four matters before considering the merits. I am satisfied that the Applicant made his application within the 21-day period required by s.394(2) of the Act, earned less than the high-income threshold, is a person protected from unfair dismissal, that his dismissal was not a case of genuine redundancy, and the Small Business Fair Dismissal Code is not applicable as a business with more than 15 employees.

• [4] The Applicant commenced work for the Respondent on 12 September 2022 as a Managed Service Support Consultant. The Respondent provided services to Kestrel Coal mine.

• [5] On 9 October 2024, the Applicant attended his annual performance review with Mr Jody Barlow, Head of Mining. The Applicant been informed by Mr Barlow that issues had been raised in the past day which would need to be discussed during the meeting. During the meeting, allegations of the Applicant speeding in a company car were raised. The Applicant was stood down on "gardening leave".

• [6] On 9 October 2024, the Applicant was sent a letter from the Respondent detailing the allegations:

Please see below timeline in relation to verbal warnings issued in connection with your use of a company vehicle, as well as your operations while on site at Kestrel Coal, which constitute a breach of your employment contract, as well as the Field Solutions Group Code of Conduct and Company Car Policy.

• October 2024 - a formal complaint was lodged regarding your unsafe driving and speeding, which constitutes a violation of your employee contract, and the code of conduct established by Field Solutions Group, as well as Kestrel's Policy OPERATE SURFACE VEHICLE TRG-SWS-00526.
• October 2023 to October 2024 - multiple verbal complaints were received concerning your driving at excessive speeds and your failure to adhere to company policy. These complaints were lodged by Kestrel Coal staff, including Tim Closter and Shaun Hay, during open staff meetings and originated from internal Kestrel Coal employees in response to your speeding between Kestrel North and South Mines.
• October 2023 - during your one-on-one review with Jody Barlow, it was noted that both FSG and Kestrel personnel had again expressed concerns regarding your speeding to and from work following the verbal warning you received from Jamie Black.
• July 2023 - Jamie Black issued you a verbal warning concerning your speeding while commuting to and from work, as well as during your travels to and from North and South Kestrel Mine.

As a consequence of these actions, you are in breach of the Field Solutions Group Employee Contract and Code of Conduct, as outlined in the following points:

• To refrain from engaging in conduct, whether during or after work hours, that may, in the Company's opinion,

cause damage or potential damage to the Company's property or reputation.

• To operate in a safe and compliant manner and to adhere to all workplace health and safety rules and

• To abide by all Company and workplace policies, procedures, rules, regulations, and contracts.

Consequently, you will be placed on gardening leave pending a comprehensive investigation. During this period, you are not obliged to perform any duties associated with your role or to visit the Kestrel Coal site. Furthermore, it is requested that you refrain from discussing these matters with any employees of Field Solution Group or Kestrel Coal, except for your Business Unit Leader or Line Manager. You are granted a timeframe of 24 to 48 hours to provide a response before a decision is reached regarding your employment status.

• [7] On 18 October 2024, the Applicant provided a written response to the letter of allegations. The response states:

• October 2024 - Jody has not provided any email or documented Action/Incident report from Kestrel to support this allegation.
• October 2023 to October 2024 - The claim that there were multiple verbal complaints from people is completely unfounded. If these complaints existed, why were they not documented in emails? I was never involved in any open staff meetings where either Tim Closter or Shaun Hay addressed concerns about my driving. The issue of excessive driving was never discussed in any meetings. In fact, it was back in August 2023 when Tim Closter verbally advised me to be mindful of my speed and maintain the car's speedometer at 108 km/h on highways, as the actual speed would be 100-102 km/h. Tim was the first person to raise this issue.
• July 2023 - Contrary to what is being claimed, Jamie Black did not discuss vehicle speeding with me in July; this conversation actually took place in August 2023. During this, Jamie checked in on how I was doing personally, as I had shared my challenges with loneliness and not having friends in town. He was supportive. He advised me to slow down on highways, praised my work performance, and encouraged me not to dwell on this issue too much.
• October 2023 - During my 1:1 on October 11, Jody did not bring up any concerns regarding vehicle usage. Instead, he assured me that FSG would renew my accommodation lease, and my salary would increase during next year's performance review. He was pleased when I mentioned that I wasn't seeking a salary hike because FSG was taking care of my accommodation. He also mentioned that Jamie had informed him about the personal difficulties I faced with socializing in town. Additionally, Jody promised that Alex would provide me with Juniper JNCIA courses for further learning.

• [8] The Applicant remained on "gardening leave" for almost three months. It is difficult for me to discern what happened in this period, as the Applicant's evidence during the hearing was vague and confusing. It appears that the Applicant provided medical certificates to the Respondent for his absence despite already being on gardening leave. The Applicant exhausted his sick leave entitlements.

• [9] The Applicant returned to his home country of India in November 2024.

• [10] On 24 December 2024, the Applicant received a further letter:

We regret to inform you that your employment with Field Solutions Group is being terminated, effective immediately, as of 24th December 2024. This decision has been made due to a breach of your employee contract and Company Code of Conduct which was raised to you in meetings 9 October 2024.

Please see below the timeline in relation to verbal warnings issued in connection with your use of a company vehicle, as well as your operations while on site at Kestrel Coal, which constitute a breach of your employment contract, as well as the Field Solutions Group Code of Conduct and Company Car Policy.

• July 2023 - Jamie Black issued you a verbal warning concerning your speeding while commuting to and

from work, as well as during your travels to and from North and South Kestrel Mine.

• October 2023 - during your one-on-one review with Jody Barlow, it was noted that both FSG and Kestrel personnel had again expressed concerns regarding your speeding to and from work following the verbal warning you received from Jamie Black.

• October 2023 to October 2024 - multiple verbal complaints were received concerning your driving at excessive speeds and your failure to adhere to company policy. These complaints were lodged by Kestrel Coal staff, including Tim Closter and Shaun Hay, during open staff meetings and originated from internal Kestrel Coal employees in response to your speeding between Kestrel North and South Mines.

• October 2024 - a formal complaint was lodged regarding your unsafe driving and speeding, which constitutes a violation of your employee contract, and the code of conduct established by Field Solutions Group, as well as Kestrel's Policy on Vehicle and Plant Management.

As a consequence of these actions, you are in breach of the Field Solutions Group Employee Contract and Code of Conduct, as outlined in the following points:

• To refrain from engaging in conduct, whether during or after work hours, that may, in the Company's opinion,

cause damage or potential damage to the Company's property or reputation.

• To operate in a safe and compliant manner and to adhere to all workplace health and safety rules and

• To abide by all Company and workplace policies, procedures, rules, regulations, and contracts.

The points outlined above constitute serious misconduct and serve as valid grounds for immediate termination of employment.

Due to you being placed on gardening leave following the meeting 9 October 2024 you have no annual leave or notice period payable. Your last day of employment with Field Solutions Group is 19 December 2024. All company property must be returned to the Emerald Office by 24 December 2024.

• [11] The Applicant was in India at the time the letter was sent. There was no meeting to discuss the outcome of the investigation.

• [12] The only material which has been submitted by the Respondent is a Form F3. In the Form F3 the Respondent notes that the Applicant was dismissed for "serious misconduct" in relation to unlawful use of a company vehicle on public roads and roads owned by the client, Kestrel Coal. The Respondent claimed in the Form F3 that the Applicant admitted to these breaches during a recorded interview. That interview has not been provided to the Commission.

• [13] The Applicant vehemently denies that he had been speeding in a company car. The Applicant claims "they never gave any warning, emails or any kind of proof or a witness, and

• [14] I note it was difficult to extract information from the Applicant during the hearing. The Applicant included voluminous amounts of material, not all of which was relevant to determining if the dismissal was unfair.

• [15] The Applicant noted in his written response:

Contrary to what is being claimed, Jamie Black did not discuss vehicle speeding with me in July; this conversation actually took place in August 2023. During this, Jamie checked in on how I was doing personally, as I had shared my challenges with loneliness and not having friends in town. He was supportive. He advised me to slow down on highways, praised my work performance, and encouraged me not to dwell on this issue too much.

• [16] I asked the Applicant during the hearing why Mr Black would advise him to slow down, if he had not been speeding. The Applicant said the conversation was completely out of the blue.

• [17] I asked the Applicant if the Respondent might be able to tell if he was speeding, because it was a company car which presumably had a GPS in it. The Applicant said it did not have a GPS that he knew of and that it was just an ordinary car. There is no evidence from the Respondent to rebut that statement.

Was the dismissal harsh, unjust or unreasonable?

• [18] Section 387 of the Act provides the criteria and considerations the Commission must take into account when deciding if the dismissal was harsh, unjust or unreasonable. As required by the Act, I consider the following:

(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);

• [19] A valid reason for dismissal should be "sound, defensible or well founded" and should not be "capricious, fanciful, spiteful or prejudiced."[1] As summarised by Deputy President Asbury in Smith v Bank of Queensland Ltd a "dismissal must be a justifiable response to the relevant conduct or issue of capacity".[2] The Commission must consider the entire factual matrix in determining whether an employee's termination was for a valid reason.[3]

• [20] The Respondent raised the reason that the Applicant breached the company policy by speeding and driving unlawfully in a company car. I note that the Applicant was verbally counselled in relation to his driving by Mr Black. However, having not had the benefit of hearing from the Respondent, I am unable to find that the Applicant was speeding unlawfully in the company car. It follows that the Respondent has not established a valid reason for the dismissal.

(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

• [21] The Applicant was notified of the reason for dismissal on 9 October 2024, approximately three months prior to his dismissal. He was provided with an opportunity to respond. He provided a written response to the allegations on 18 October 2024.

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal; and

• [22] I have not been provided with any submissions about whether the Aplicant was denied a support person. This factor is a neutral consideration.

(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

• [23] As the Applicant was terminated for misconduct this factor is not relevant.

(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

• [25] I note the Respondent was a small to medium-sized company, prior to entering external administration. I find that the size of the Respondent's enterprise did not have an impact.

(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

• [26] It appears from the Applicant's evidence that the Respondent did have human resources staff. I find this a neutral factor.

(h) any other matters that the FWC considers relevant.

• [27] A relevant factor is whether summary dismissal was a proportionate response to the Applicant's conduct.[4] The allegations made against the Applicant were vague and imprecise. The Applicant was summarily dismissed after being placed on extended period of gardening leave. Whilst the Respondent stated in the letter of 9 October 2024 that a "comprehensive investigation" would be conducted, the letter of 24 December 2024 does not refer to any investigation results and simply reiterates the same poorly formed allegations without substantiating serious misconduct. I find that summary dismissal was harsh and unjust in the circumstances.

• [28] The dismissal was harsh and unfair. No valid reason for dismissal has been established. The dismissal was harsh and unjust because the Applicant was summarily dismissed after an extended period of gardening leave during which the Applicant was required to access his own leave entitlements. Furthermore, no serious misconduct has been established in order to warrant summary dismissal.

• [29] Given that I have found that the Applicant's dismissal was unfair, it is necessary to consider the question of remedy. The Applicant has made an application under s. 394 of the Act seeking remedy for unfair dismissal.

• [30] Pursuant to section 390 of the Act, this Commission may order:

"390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case."

• [31] The Applicant did not wish to consider reinstatement as a remedy. I note that given the Respondent's insolvency, reinstatement would not be appropriate.

• [32] The Applicant requested a component to compensate for humiliation. I note for the Applicant's benefit that humiliation cannot be considered in ordering compensation under the Act.

• [33] Section 392 sets out the considerations for awarding compensation:

(1) An order for the payment of compensation to a person must be an order that the person's employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer's enterprise; and

(b) the length of the person's service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

(3) If the FWC is satisfied that misconduct of a person contributed to the employer's decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal.

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(ii) to which the person was entitled; (whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period - the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations."

• [34] The established approach to assessing compensation in unfair dismissal cases was set out in Sprigg v Paul Licensed Festival Supermarket,[5] and has been applied and developed by Full Benches of the Commission.[6]

• [35] The assessment of compensation involves a four-step process. however, this is not a substitute for the words in the Act:

"Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost). I am also required to consider the length of service with the employer[7] and the ability to find a new role as a relevant factor in calculating compensation per s392(2).

Step 2: Deduct monies earned since termination.[8]

Step 3: Discount the remaining amount for contingencies.[9]

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount they would have received if they had continued in their employment."

Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

• [36] The Applicant worked with the Respondent for two years.

• [37] I note that the Applicant refers many times in his written material to feeling lonely at the mine site and to personal issues with his colleagues. The Applicant provided detailed evidence describing the issues with the onsite accommodation provided by his employer.

• [38] Separately, according to the Applicant's material, the Respondent's financial difficulties were evident from at least January 2025.

• [39] I find it unlikely that the employment relationship would have continued for more than another two months had the Applicant not been unfairly dismissed.

• [40] The Applicant was paid on a monthly basis. The payslip provided by the Applicant from prior to being placed on leave indicates that he was paid $12,135.89 per month for 164.67 ordinary hours. The Applicant stated that his weekly salary before tax was $2,800.00. This accords with the annual figure of $146,000.00 provided by the Respondent. I find that the Applicant would have earned $22,461.54 over a period of 8 weeks, had he not been unfairly dismissed.

• [41] The Applicant gave testimony that he has been applying for work at various other coal mines and I make no deductions for failure to mitigate his losses.

• [42] The Applicant stated that he has not found alternative employment at the time of the hearing and did not indicate that he had earned any other income during the period from his termination.

• [43] I will not make any deductions under this step.

Step 3: Discount the remaining amount for contingencies.

• [44] I make no deductions for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment."

• [45] In Bowden v Ottrey Homes Cobram and District Retirement Villages,[10] the Full Bench noted that in relation to the fourth step, the usual practice is to settle a gross amount and leave taxation for determination. I will leave the issue of taxation for determination by the Respondent.

• [46] I have received no submissions from the Respondent. However, given the Respondent's insolvency is a live issue, I will hear any application from a representative of the company for compensation to be paid in instalments.

• [47] The Respondent is ordered to pay the sum $22,461.54 gross plus superannuation within 21 days upon issuing this Order to the Applicant's nominated bank account that was on payroll.

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

[2] [2021] FWC 4 at 118.

[3] Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185, [46], citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413.

[4] Sydney Trains v Hilder [2020] FWCFB 1373 at [32].

[5] [1998] AIRC 989; (1998) 88 IR 21.

[6] Bank of Sydney Ltd T/A Bank of Sydney v Repici [2015] FWCFB 7939.

[7] Fair Work Act 2009 (Cth) s392(2)(b) -(c) and s392(2)(g).

[8] Ibid s392(2)(e).

[9] Ibid s392(2)(a), (d) and (f).

[10] [2013] FWCFB 431

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