s.394 - Unfair dismissal

Application for unfair dismissal remedy - no unfair dismissal - application dismissed.

• [1] On 3 July 2025 Ms Jenny Stevens (Applicant) made an application under s.394 of the Fair Work Act 2009 alleging that she had been unfairly dismissed from her employment with Casino Returned Servicemen's Memorial Club Ltd (Respondent or Club).

• [2] The application was heard on 29 October 2025. The Applicant appeared on her own behalf and Mr John Walker, the Chief Executive Officer of the Respondent, appeared for Respondent.

• [3] For the reasons that follow, I am not satisfied that the Applicant was unfairly dismissed and so I will dismiss this application.

• [4] The Applicant commenced employment with the Club in September 2022.

• [5] Her employment was terminated by letter dated 12 June 2025. The termination letter reads as follows:

I refer to the final written warning issued to you on 17th July 2024, a previous employment warning letter and to our discussion this morning. The warning letter outlined a range of incidents that were in breach of the Casino RSM Clubs Policies and Procedures including our code of conduct.

This morning's conversation outlined multiple accusations of bullying, intimidation, harassment and belittling of staff and management against you over a long period of time. This has reached the point where I and the organisation have lost confidence in your employment and your peers do not want to work with you anymore. These serious allegations against you warrant immediate termination of your employment.

As a result, I am terminating your employment effective immediately with cause. By agreement you will be placed on annual leave until your accrued leave expires which will be on 26th June 2025. At that time an adjustment for any hours left unpaid will be made. Until that time you are not to attend the Club.

I wish you well for your future and thank you for your service.

• [6] Prior to the dismissal, the Applicant had been issued a first written warning on 8 January 2024 and a final written warning on 17 July 2024. Both warnings related to the Applicant's attitude and "behaviour when dealing with issues" which was said to be unprofessional and disrespectful.

• [7] The Applicant explained that she had worked in hospitality for most of her working life and commenced with the Club after taking time off to raise her children. She said she found her greatest fulfilment "behind the bar".

• [8] The Applicant maintained that her dismissal was harsh, unjust, and unreasonable. She submitted that she was denied procedural fairness, was not provided with evidence supporting the allegations, and was unfairly targeted for raising safety concerns and reporting misconduct by patrons. She denied being aggressive, bullying staff, or acting in an intimidating manner. She stated that she had positive relationships with most staff members and that any tensions were the result of mismanagement by her supervisors. She stated that she always conducted herself professionally, and that various complaints about her behaviour were either fabricated, exaggerated, or the product of misunderstandings related to her ADHD. In this regard the Applicant stated that "every time my attitude is mentioned, I can't help but feel it's really my ADHD they're referring to. Sometimes I worry that my ADHD is misunderstood by others, especially when concerns about my attitude come up".

• [9] The Applicant provided references from former staff and patrons in support of her application who said that the Applicant was welcoming and polite and conducted herself professionally.

• [10] The Respondent's position, supported by the statements of Mr Walker and Ms Donna Battese (Operations Manager), is that the Applicant engaged in ongoing bullying, intimidation, inappropriate conduct toward colleagues, and insubordination. The said that concerns regarding the Applicant's behaviour had been raised consistently over a two-year period, resulting in verbal warnings, a first written warning, and a final written warning prior to dismissal.

• [11] Mr Walker gave evidence that he commenced as CEO in December 2023 and was tasked by the Board with addressing significant cultural issues within the Club. He reviewed employee records and became aware of the Applicant's behavioural issues early in his tenure. He stated that over the Applicant's employment period, concerns about her attitude, treatment of staff, and unwillingness to accept instructions were repeatedly reported to him by managers and junior staff.

• [12] Mr Walker said that during 2025 he observed a change in her behaviour which involved her being more aggressive, which he said was "totally inappropriate" and became a significant problem for the Club.

• [13] Ms Battese's evidence was that staff frequently reported the Applicant's intimidating demeanour, that she often spoke aggressively to colleagues, and that several junior employees felt uncomfortable or pressured by her conduct. She gave evidence that the Applicant questioned and challenged management decisions, including her own authority, and that the behaviour persisted despite counselling and repeated warnings.

• [14] Ms Battese included an email from a staff member dated 11 June 2025 in which the staff member complained about the Applicant's behaviour. The email included words to the effect that the staff member "cannot take it anymore" and "I have had enough".

• [15] The Respondent's evidence included numerous file notes and "duty/operations manager" reports of conduct-related discussions held with the Applicant over the previous few years.

• [16] There is no dispute and I am satisfied that the Applicant is a person protected from unfair dismissal by virtue of s.382 of the Act.

• [17] A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

• [18] There is no dispute that the Applicant was dismissed and that subsection (c) and (d) do not apply. The question, therefore, is whether the dismissal was harsh, unjust or unreasonable.

Was the dismissal harsh, unjust or unreasonable?

• [19] The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.

• [20] I am required to consider each of these criteria in reaching my conclusion[1], to the extent they are relevant to the factual circumstances of this case.

• [21] The ambit of the conduct which may fall within the phrase 'harsh, unjust or unreasonable' was explained in Byrne v Australian Airlines Ltd[2] as follows:

"... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."

• [22] There must be a valid reason for the Applicant's dismissal, although it need not be the reason given at the time of the dismissal.[3] The reason(s) should be 'sound, defensible and well founded'[4] or justifiable on an objective analysis of the relevant facts, and should not be 'capricious, fanciful, spiteful or prejudiced'.[5]

• [23] In cases concerning conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred[6]. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct and therefore acted in the belief that the termination was for a valid reason. The Commission must make a finding as to whether the conduct occurred based on the evidence before it[7].

• [24] Further, the Commission does not 'stand in the shoes' of the employer but will need to be satisfied that the termination of the employee was for a valid reason[8].

• [25] There is no mandate for giving the 'valid reason' criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to 'have regard to' or 'take into account' requires the Commission to give the matter(s) weight as a fundamental element in the decision-making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.

• [26] Having considered the evidence, I find that there was a valid reason for the Applicant's dismissal. This is because, on the balance of probabilities, I consider that the Applicant did engage in the conduct that led to her dismissal. I accept that Mr Walker and Ms Battese's concerns about the Applicant's conduct were genuine and that there had been numerous discussions with the Applicant about her conduct and the Club's expectations in this regard. The Applicant had received two written warnings about her conduct prior to her dismissal.

• [27] I acknowledge that the Applicant loved her job and does not accept that her conduct was not satisfactory. She made a number of references to her ADHD as a potential explanation for 'misunderstandings' that may have occurred in relation to her conduct. However, this does not negate that there is a valid reason for her dismissal related to her conduct.

Notification of the valid reason and opportunity to respond - s.387(b) and (c)

• [28] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,[9] in explicit terms[10] and in plain and clear terms.[11] In Crozier v Palazzo Corporation Pty Ltd[12] a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

"[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted."[13]

• [29] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied 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.[14] This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.[15]

• [30] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to the Applicant before his dismissal was effected.

• [31] I am satisfied that the Applicant was notified of the reason for her dismissal during the meeting she attended on the day she was dismissed, and the reason was confirmed in her termination letter. I am also satisfied that the Applicant had an opportunity to respond as she had received two written warnings and a number of verbal warnings, to which she had responded. She was therefore aware of the Club's concerns about her conduct.

Unreasonable refusal by the employer to allow a support person - s.387(d)

• [32] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

• [33] I am satisfied that the Applicant was not unreasonably refused a support person

Warnings regarding unsatisfactory performance - s.387(e)

• [34] The Applicant was given two written warnings about her conduct prior to her dismissal.

Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))

• [35] The Respondent is a medium-sized business and I do not consider its size impacted on the procedures it followed.

Other relevant matters - s.387(h)

• [36] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

• [37] I do not consider there are other relevant matters to consider.

• [38] Having considered each of the matters specified in s.387 of the Act and for the reasons set out above, I am not satisfied that the dismissal was harsh, unjust or unreasonable. As a result, the application is dismissed.

J Walker for Casino Returned Servicemen's Memorial Club Ltd.

[1] Sayer v Melsteel [2011] FWAFB 7498.

[2] (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.

[3] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

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

[6] Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561.

[7] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].

[8] Miller v University of New South Wales [2003] FCAFC 180; (2003) 132 FCR 147

[9] Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

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

[11] Previsic v Australian Quarantine Inspection Services Print Q3730.

[12] (2000) 98 IR 137.

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

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

Printed by authority of the Commonwealth Government Printer