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[2026] FWC 305
General information, not legal advice.
Fair Work Commission
2026-02-10
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Application for an unfair dismissal remedy; allegations of misconduct; decision to dismiss not harsh, unjust or unreasonable; application dismissed.
[1] Mr Kapil Narwal has made an application in the Fair Work Commission seeking a remedy in relation to unfair dismissal. The application relates to his former employer, Scape Australia Management Pty Ltd (Scape).
[2] The application was made within the period required by s 394(2) of the Fair Work Act 2009 (the Act) and it is not claimed the dismissal occurred as a result of a genuine redundancy. Scape is not a small business within the meaning of s 23 of the Act and there appears to be no basis upon which it can be said that Mr Narwal is not a person protected from unfair dismissal within the meaning of s 382 of the Act.
[3] A hearing was conducted on 3 February 2026 to determine the merits of the matter. Mr Narwal appeared for himself and gave evidence and was subjected to cross examination. Mr Wilink of Counsel appeared for Scape after it was granted permission to be represented by a lawyer pursuant to s 596 of the Act. Mr Ibrahim gave evidence for Scape and was subjected to cross examination. Prior to the hearing both parties filed written material in relation to the matter.
[4] Some of the evidence in this matter was difficult to follow. There were several reasons for this. Mr Narwal's narrative shifted several times throughout the course of the proceeding. He was not always forthright in his account and occasionally seemed to seek to reconstruct what happened in the lead up to his termination of employment to create a narrative he may have thought was more favourable to him. Having said this, Mr Narwal was self-represented, and it is appropriate he be afforded some leeway in relation to the somewhat discursive manner in which he presented his case. This, and the fact he is from a non-English speaking background may provide an explanation in part as to what might have otherwise appeared as inconsistencies in his various accounts of what happened. These matters mitigate to some extent questions as to his credibility - but not entirely.
[5] From the confusion, I have sought to piece together what appears to have led up to the end of Mr Narwal's employment with Scape on 7 August 2025. That summary follows and while I have had regard to all of the material before the Commission in this matter, it focuses on those aspects of the evidence that is relevant to the questions necessary to determine the application and to explain my reasons for decision.
[6] Scape is a large student accommodation provider and provides accommodation for students - many of whom are newly arrived in Australia - at a range of premises. Mr Narwal commenced employment with Scape on 30 December 2024 at its La Trobe facility. Mr Narwal was the "night manager", which required him to work night shifts at the facility, from 11:00PM until 7:00AM, engaged in tasks including handling and resolving resident queries, conducting walkthroughs of the buildings and risk assessments and ensuring the ongoing safety of residents and staff following any incidents. While working this shift, Mr Narwal was ordinarily the only Scape employee on site.
[7] Scape had concerns early in Mr Narwal's employment as to his capacity to perform the role to the required standard. It extended his initial induction period by an additional week and in about February 2025 he was placed on performance improvement plan, which he completed successfully on 6 May 2025. Scape's issues included, among other things, concerns about Mr Narwal exercising poor judgement.
[8] Scape was at pains to point out that the nature of its business requires a particular focus on "student safety, wellbeing and community", and its obligations in this regard extend to statutory requirements, including in relating to the welfare of residents under the age of 18. Despite its early concern with Mr Narwal's capacity, it persisted with his employment in what appears to be an important role within Scape's operation. Mr Narwal claimed his performance in the role was of a high standard throughout his employment.
[9] As I understood it, Mr Narwal's role was required because some of the residents at Scape La Trobe are less than 18 years of age and so a permanent supervisory role such as the one that he fulfilled was needed. In about May 2025, it appears Scape decided it would likely move residents below 18 years of age to other facilities and make Scape La Trobe a facility in which only students above 18 years of age resided. This meant Mr Narwal's permanent role would probably conclude, and he believed he would finish in the role on about 26 July 2025. Mr Ibrahim, the Operations Manager, said the end of Mr Narwal's permanent role was likely in August 2025, although he wasn't sure. Mr Narwal said he had been offered a casual position but refused it.
[10] In early July 2025, two issues arose in relation to postal deliveries at Scape La Trobe. As I understood the evidence, postal deliveries at Scape La Trobe were ordinarily handled by "customer service team" members who worked during the day but in early July 2025 it appears Mr Narwal may have been asked to assist with dealing with some parcels which had not been processed by the customer service team in the normal fashion. This may have occasionally happened previously.
[11] In cross examination, Mr Narwal was asked about his usual process for handling post and he appeared to concede that normally, when he was asked to help out with mail processing, he would search for the intended recipient's information on the computer system but if he could not find it, write clearly on the package that the recipient could not be identified, and then place it to the right hand side of the office desk. It also appeared to emerge in his evidence however that sometimes he would not follow this procedure, and might instead take the parcel to the "mezzanine level" where there were lockers for parcels to be stored and logged on an app. This was one of a number of examples of Mr Narwal's confusing and somewhat shifting delivery of evidence in this matter, but he was reasonably adamant he did this sometimes. To the extent Scape asserts Mr Narwal's evidence on this point was inconsistent, having obtained his concession that he had a normal process that he then did not follow, I do not place any great weight on this proposition - I consider it unlikely Mr Narwal really had a specific procedure he always followed and probably used different processes to deal with the mail from time to time.
[12] In early July 2025, Scape received two complaints from residents - one on 4 July 2025 and the other on 9 July 2025 - that they had been expecting a parcel delivery but had not received them. The first complaint, made by email, was initially picked up by Mr Narwal, who replied to the query and said that he had checked, and had not received a parcel for that resident's room number. The resident responded and said she didn't understand - that she had been told a parcel had been delivered for her and she would send proof. She sent a delivery verification confirmation and photograph appearing to indicate the parcel had been delivered to Scape La Trobe on 2 July 2025. It appears this resident was missing two parcels.
[13] Another complaint was made on 9 July 2025 about a parcel said to have also been delivered but not received by the resident. Mr Narwal was not privy to this complaint - it was dealt with by other Scape personnel.
[14] It appears Mr Ibrahim made efforts to locate these missing parcels without success, and on 20 July 2025 began reviewing CCTV footage to try and track them down. As part of this process, he sent an email to Mr Narwal saying that he had received enquiries in relation to three missing parcels from 2 July 2025. Mr Ibrahim said he had checked CCTV footage, and it appeared Mr Narwal was the last person to handle the packages. He asked where Mr Narwal had kept them as he had not been able to find them. Mr Narwal replied shortly afterwards and said he wasn't sure about the parcels and had been extremely busy in the last few days. He said he "knew about the email we got" and had replied to "them both", referring to "two emails in a few days regarding the parcels". He said he double checked the parcels but couldn't find them and could not "exactly tell you where I left them". Mr Ibrahim replied and said he had checked where Mr Narwal suggested, and in other places, and hadn't found the parcels. Mr Narwal replied and said, in summary he didn't remember where he put the parcels. He seemed to protest about a lack of "appreciation" for his work, saying that in the whole month he went "beyond my limit to finish everything in my shift and did much more and never leave anything for anyone". He said in the email that he didn't want to "explain himself" and that he did not need to jog his memory - that "if I remembered what happened with those parcels I would have told you by now".
[15] Scape submitted that I should have regard to the fact that in his initial contact with Mr Narwal, Mr Ibrahim was not accusatory or suspicious. It also appears to submit that Mr Narwal's responses were overstated or as Mr Ibrahim put it "alarming". I agree Mr Narwal's responses to Mr Ibrahim's polite enquiries were somewhat defensive.
[16] Mr Ibrahim continued to review the CCTV footage and some of that footage was provided in evidence. Scape submits the footage shows that shortly after midnight on 3 July 2025, Mr Narwal took two parcels from the desk out of the office, into what it described as a "blind spot" with reference to the cameras. It further submits the footage shows Mr Narwal taking a third parcel out of the office and reappearing shortly thereafter without it. It submits the footage then shows Mr Narwal taking a "noticeably empty bag" out of the office and later reappearing with the bag full to the brim. It says the footage shows Mr Narwal placing the bag on a chair, and then a laptop computer on the chair to "conceal its contents". On this basis, Scape submits in effect that Mr Narwal took three parcels out of the office into the "blind spot" and put them or their contents into his bag for the purposes of stealing them. It says the footage later shows Mr Narwal taking the full bag down to his car about 30 minutes prior to the end of his shift.
[17] The evidence contains two accounts which might be attributed to Mr Narwal as to what he said happened with the parcels. One is Mr Ibrahim's evidence as to what Mr Narwal said when later these allegations were put to him in a disciplinary process. The other is Mr Narwal's account given in his evidence at hearing and through cross examination. This account is somewhat afflicted by the limitations I described above about the way Mr Narwal gave evidence in this matter. I will summarise Mr Narwal's apparent narrative as follows.
[18] Where the footage plainly shows Mr Narwal taking three parcels out of the office, Mr Narwal said he took those parcels and placed them in a corridor. He said he did this because he could not locate their intended recipient on his computer system. The footage does show Mr Narwal checking the computer, apparently when dealing with at least one of the parcels. This account does not directly conflict with the version related by Mr Ibrahim, referring to what he said Mr Narwal later said - that he searched for the names of the residents and placed the parcels on one of the trolleys.
[19] Mr Narwal said that his full bag did not contain the parcels but instead items he had taken from a "donation bin" located upstairs on a mezzanine level. Apparently, this "bin" contained items perhaps donated or lost which it appears Scape employees such as Mr Narwal were entitled to take if they wished (there appeared no opposition from Scape as to this proposition). Mr Narwal said when he would take parcels up to the mezzanine level for storage in the lockers, he might also take some items from the donation bin if he saw something he liked. He said a day or so previously he had done this and left the items he had selected in the corridor downstairs. He said that it was these items that he put into his bag. He said they were some notebooks, a digital camera and a small toy. This account is also largely consistent with what Mr Ibrahim said Mr Narwal later said about the matter, but two points should be noted.
[20] First, Mr Narwal seemed slightly confused in his oral evidence about whether he had or had not visited the mezzanine level during his shift on 2 - 3 July 2025. In the end he seemed to clarify in his evidence that he had not gone to the mezzanine level. This matters, because if he did not visit the mezzanine level on that shift, the items he said he took from the discount bin and put in his bag must have been obtained by him at some other time. He explained this by saying that he obtained those items from the discount bin a day or so previously and left them in the corridor. To some extent, this evidence seemed to come as something of an afterthought and, on the evidence of Mr Ibrahim, was not part of Mr Narwal's original account.
[21] Secondly, there appears no doubt, and it was conceded, that Mr Narwal did not advise Mr Ibrahim, later, when giving an account of these matters, that the contents of his bag were the notebooks, digital camera and toy.
[22] Mr Narwal said that his practice of packing his bag and taking it down to his car about half an hour before his shift was common, and thus by implication, nothing unusual on 2 - 3 July 2025. In the later disciplinary process, according to Mr Ibrahim, Mr Narwal was more circumspect about this, and "could not explain his reasoning" (for going down to his car early).
[23] To some extent, Scape's submissions as to what is shown on the CCTV aligns with my examination of that footage. It shows Mr Narwal taking three packages out of the office and re-appearing a short while later without them. It shows him taking a largely empty bag out of the office and then returning with it looking rather full. It then shows him taking the bag down to his car some time before the end of his shift. The time between Mr Narwal taking the bag out of the office and then re-appearing with it loaded up full is about two minutes and thirty seconds. In the end (including taking Mr Narwal's own evidence into account) I consider it unlikely Mr Narwal visited the mezzanine floor at any time during his shift, and thus it must be the bag was loaded up with its contents - whatever they were - in the vicinity of the front office.
[24] In the course of viewing the CCTV footage, Mr Ibrahim also discovered Mr Narwal providing his car keys to a resident. This turned into the second allegation leading to the decision to terminate Mr Narwal's employment - that he loaned his car to a resident. It is unnecessary to engage in a lengthy explanation as to this incident because, save for a couple of matters (which are noted below), it is largely conceded.
[25] In short, Mr Narwal provided his car keys to a resident shortly after midnight 3 July 2025. This resident asked Mr Narwal to do so. This was not the first time this occurred. It had occurred several times previously, possibly over the course of the prior month. Mr Narwal conceded that he had loaned the resident his car several times after having refused them only on the first occasion he was asked.
[26] There was confusing evidence over whether this resident was licensed to drive. Mr Narwal said the resident had told him he had a full Sri-Lankan driver's license. However, a couple of days prior to 3 July 2025, the resident had loaned a communal item from the office, and, consistent with normal policy, had provided an ID card as security. This was the resident's Australian driver's license, which was a learner's permit. Thus, Mr Narwal had cause to query the resident as to his driver's license and says he did so on 3 July 2025 when the resident asked to borrow his car again. He said the resident said he would be accompanied by a full license holder on the trip. As Scape pointed out several times and Mr Narwal conceded, he made no effort to verify whether another full driver's license holder was indeed accompanying the resident he gave his car keys to.
[27] Some of Mr Narwal's account is another example of shifts and anomalies in his evidence. He originally said the first request made by this resident to loan his car was some days previously, which then upon clarification turned into about a month previously. He further clarified that, after having refused to loan the car on the first occasion, during the course of the subsequent month he had loaned the car to the resident several times.
[28] Mr Ibrahim said that during a meeting concerning these matters, Mr Narwal said he had exchanged personal details with this resident. Mr Narwal then denied this to be so in cross examination, saying he had said that to Mr Ibrahim because he was confused and under pressure. Scape said the CCTV footage shows Mr Narwal and the resident to be familiar, and I agree with that characterisation. Mr Narwal eventually conceded he was friendly with the resident.
[29] Despite these incongruities in the evidence, I consider it to be the case that Mr Narwal did loan this resident his car, and did so on several occasions, and did so in circumstances where there was reasonable cause to doubt whether the resident was properly licensed to drive in Australia.
[30] Mr Ibrahim managed a process by which these matters relating to Mr Narwals' conduct were investigated and eventually his employment terminated.
[31] The process began when Mr Ibrahim told Mr Narwal on 31 July 2025, while he was on shift, that they were investigating allegations in relation to his behaviour. He gave Mr Narwal a letter outlining the two allegations, relating to missing parcels and the loan of the car. Mr Narwal was stood down from his duties with pay. The letter said the allegations were serious and if substantiated could result in disciplinary action including termination of employment. It characterised the allegations as "alleged breach of the Scape Compliance Manual".
[32] The letter set up a meeting to discuss the allegations, which occurred on 1 August 2025 involving Mr Narwal, Mr Ibrahim and Mr Miller, who is a Senior Operations Manager. On Mr Ibrahim's evidence as to this meeting, it appears that questions were asked of Mr Narwal about the allegations (with reference to how they were set out in the letter) and he provided various responses about them. Among other things, one of the aspects of Mr Narwal's response that Scape asked me to have regard to was that he said (presumably in relation to the loan of the car), "it's nothing", and "it's nothing unusual".
[33] Mr Ibrahim said following the meeting he considered Mr Narwal's responses and determined "on the balance of probabilities" that the two allegations had been substantiated. He said he consulted with some of his colleagues and decided to issue Mr Narwal a "show cause letter". Mr Ibrahim's superiors approved this to occur.
[34] Mr Narwal was provided with a "show cause letter" on 4 August 2025. The letter said that Mr Narwal's behaviour, "specifically in relation to the repeated allowances of usage of your personal vehicle to a student resident on their learners permit whilst on a rostered shift is in potential breach of the Scape Compliance Manual, specifically serious misconduct under the Workplace Behaviour Policy ...". It said that as "this incident constitutes serious misconduct, we are currently determining if it is necessary to terminate your employment". The letter did not refer to the missing parcels.
[35] Mr Narwal was invited to "show cause" in a meeting held on 7 August 2025 involving Mr Ibrahim, Mr Miller and Mr Wigham, who is Scape's National People Manager. Mr Ibrahim said Mr Narwal was invited to provide any responses relating to the "allegations" (plural) suggesting perhaps the meeting was intended also to cover the issues concerning the missing parcels, albeit those not having been mentioned in the show cause letter. It is difficult to tell however - there was little evidence before me about what was actually said in this meeting - Mr Ibrahim said "Mr Narwal did not demonstrate any remorse of his actions, and did not acknowledge the severity of his behaviour", and said "the reason for the termination was only due to the fact that the Night Manager role may not be required in the future". Mr Narwal's evidence did not really deal with the contents of this meeting and thus there is really no evidence before me about what he actually said. In any event, during a break in the meeting Mr Ibrahim, Mr Miller and Mr Wigham decided to terminate Mr Narwal's employment, and when re-entering the meeting advised Mr Narwal that he was dismissed and would be provided with a letter confirm this.
[36] The termination letter confirmed the dismissal of Mr Narwal's employment, referring specifically to the two allegations: the missing parcels and the loan of the car. In relation to the missing parcels, the letter said, "whilst we cannot substantiate with certainty, we determine that, on the balance of probabilities, you placed the 3 packages in a duffle bag and departed your rostered shift on 3 July 2025 with the 3 packages in your possession". It said further, in relation to both allegations, that they were in breach of the Scape Code of Conduct. It also said, "separately to the above we have raised with you the ongoing performance issues", and that "despite ongoing support afforded to you and opportunities to improve your performance, Scape has determined that your performance does not meet the inherent requirements of a Night Manager". It said that as "a result of your continued performance issues, Scape has decided to terminate your employment effective today". The letter also confirmed that Mr Narwal would be paid one month salary in lieu of notice (and later was).
[37] As I will mention further below, Mr Narwal complained about this process, stating that he was not provided sufficient evidence of the allegations made against him and his responses were not listened to, and matters he raised not subject to "counter checks" (meaning that, for example, matters he raised such as his visits to the mezzanine floor were not checked and verified on CCTV footage). He also said he not provided with enough time during the process or that the process was conducted too quickly. Mr Narwal said that based on these reasons that the outcome of the process was predetermined.
[38] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
Was there a valid reason for dismissal related to Mr Narwal's capacity or conduct?
[45] Mr Narwal conceded that he gave a student resident loan of his car on several occasions, including on 3 July 2025. I consider he did so despite having a reasonable basis to doubt the resident was properly licensed to drive. Mr Narwal conceded this displayed "poor judgement" on his part.
[46] Mr Narwal agreed that he had been made aware of the various policies that he was required to comply with in the course of his employment. In his relatively short period of employment, his online learning log shows he had been required to complete modules relating to the requirements of his employment and Scape's policies on about 100 occasions. One of the policies - the "Workplace Behaviour Policy" - provides that Scape employees are prohibited from engaging in intimate personal relationships with residents, and that "misconduct and serious misconduct includes but is not limited to", "engaging in any form of relationship (one-off or continuous) with a resident based within an operational student property". To some extent these policies are aimed at preventing the obvious risks which might arise from intimate or inappropriate relationships developing between staff and residents, as opposed to familiarity or conviviality. However, at the very least they should have served to cause a person in Mr Narwal's position to exercise caution in his interaction with residents.
[47] It was said that during the process Mr Narwal claimed that his loan of his car was "nothing", or "nothing unusual". He did not particularly argue his case that way at hearing and conceded he displayed "poor judgement", although I consider I can read into Mr Narwal's submissions that he argues the termination of his employment was a disproportionate response to the nature of the conduct in loaning out his car. However, to the extent that Mr Narwal thought he was acting in a manner lacking judgement, but nevertheless innocently, I consider he misunderstood the nature of his role. Mr Narwal was not engaged as a youth support worker or "big brother" to the student residents. He was the front facing representative of a large business whose risk exposure in relation to the wellbeing of its clients (residents) should have been obvious to him, if not for the reminders he received in its policies, procedures, induction and training, then based on his own good sense and experience. While I do not consider these policies are particularly explicit - they do not say "don't loan your private vehicle to a resident" - they nevertheless impress upon Scape employees the extent of the professionalism required of them.
[48] Mr Narwal said in having loaned his car to the resident, he had "good intentions" and it was a "good gesture". He said in his evidence words to the effect that he had built good relationships with residents as part of his devotion to his role. I have no reason to doubt Mr Narwal's intentions were anything but charitable. However, if his generosity could be said to excuse his conduct in some circumstances, this could not be the case where there was specific cause to doubt whether the resident was in this case even licensed to drive. In those circumstances, loaning his car out was not just poor judgement - it contained an element of risk and was a serious breach of his professional responsibility.
[49] Mr Narwal appeared to be aware of some of these risks. Under cross examination, he conceded that that by giving his car keys to the resident, there could be negative implications for Scape, including, especially if the resident was injured or killed driving one of its employees' vehicles unlicensed.
[50] On this basis I consider a valid reason existed for Scape's decision to terminate Mr Narwal's employment, based on his loan of his private vehicle to a resident on several occasions. The conduct was serious - perhaps not rising to the level of serious misconduct - but nevertheless weighs in favour of a finding that the decision was not unfair.
[51] Mr Narwal's theory was that he had been targeted for termination of employment because his role was ending anyway - as a result of the operational change meaning his role at La Trobe was likely ending after July 2025. He said that the allegations "appeared" shortly after he declined casual work, and there was an "ulterior motive". There was no evidence before me this was so and I do not accept this theory. There is no evidence that the allegations were contrived or Scape considered them to relate to anything other than how they were characterised - serious breaches of its policy and expectations as to conduct and work performance.
[52] This leads us to the other allegation - the case of the missing parcels.
[54] Counsel for Scape, apparently appreciative of the impact of the standard of proof applicable to the conduct it alleges in relation to Mr Nawal and the missing parcels, while not resiling from its contention that it is open to the Commission to find the parcels were stolen by Mr Narwal, submitted that the Commission could alternatively find the parcels were mishandled, inconsistent with the standard of performance and conduct required in Mr Narwal's role. In this regard, it was noted that the residents have never received their property - it is still missing. However, I am not persuaded by this submission. I do not consider it to have been established that Scape had instructed Mr Narwal to follow a clear and consistent procedure in relation to dealing with parcels, such that whatever he did with them can be said to have been "mishandling". On Mr Narwal's account of what he did with them - leaving them in a corridor - it seems possible a range of explanations might exist as to how they went missing, for which Mr Narwal might not be to blame.
[55] The letter provided to Mr Narwal confirming the termination of his employment also referred to his prior performance issues and concluded that his "performance does not meet the inherent requirements of Night Manager". The reference in the letter to Mr Narwal's performance issues is somewhat incongruous when it seems plain enough his employment was terminated because of his conduct - which Scape considered serious misconduct - in relation to what his employer believed were stolen parcels, and in particular, his loan of his car to an unlicensed resident, and the breach of its policies. It does not appear the performance issues raised with him earlier in his employment were the focus of the process leading to its termination. In its Submissions, Scape said that the dismissal "did not relate to unsatisfactory performance" and that while the termination letter refers to performance issues "these were not the actuating reasons for this dismissal".
[56] In any event, in so far as it is relevant, I do not consider the critique of Mr Narwal's performance to be particularly compelling as a well-founded reason to terminate his employment. The issues were raised with him early in his engagement, were the subject of a performance improvement plan he completed successfully and had no specific connection with the matters that actually resulted in his termination. The link Scape may have sought to make - "poor judgement" - is in my view tenuous. Had Mr Narwal's conduct in loaning the car to a possibly unlicensed resident not risen to the level of seriousness I consider it does, I do not consider the earlier performance issues to have been a sufficiently sound, defensible or well-founded reason for the termination of his employment
[57] However, as I have observed above, I do consider Mr Narwal's loan of the vehicle to be a valid reason for the dismissal within the meaning of s 387(a) of the Act.
Was Mr Narwal notified of the reason for dismissal?
[59] There seems to me to be no question that Mr Narwal was informed of the reason for the dismissal of his employment before it occurred. Even Mr Narwal's submissions as to flaws in the process used to affect his dismissal - which amount largely to a claim as to "pre-judgement" - do not suggest he was not advised of the reason for the termination of his employment before it occurred.
[60] I consider Mr Narwal was notified of the valid reason relating to his capacity or conduct and this weighs in favour of a finding his dismissal was not unfair.
Was Mr Narwal given an opportunity to respond to the valid reason?
[62] Mr Narwal was given an opportunity to respond to the reasons in relation to which Scape was considering terminating his employment. This occurred in two meetings prior to dismissal. In both cases he was on notice his alleged conduct was considered serious and his employment was in jeopardy. Mr Narwal's key contention is that his responses in those meetings were not properly considered - that the termination of his employment was predetermined - because his role was ending anyway, because he was not provided sufficient evidence to support the allegations and his responses were not listened to properly. Above I have observed that I am not persuaded this was the case. I consider Mr Narwal was given an opportunity to respond to the valid reason as to his conduct for his dismissal and this weighs in favour of a finding that it was not unfair.
[63] In this regard, I will repeat my observation above that Mr Narwal seemed at times to have sought to provide explanations for his conduct which were not always consistent and seemed to be designed to support a reconstructed narrative he may have thought most favourable to him. For example, it seemed extremely odd to me that Mr Narwal only first explained what was in his bag at the hearing of this matter and had not provided his explanation to this very obvious question in the two meetings he had with his Scape managers. Scape observed in the termination letter that it lost trust and confidence in him. Mr Narwal's approach to the process Scape used to investigate the allegations made about his conduct did not assist him in this matter.
Did Scape unreasonably refuse to allow Mr Narwal to have a support person present to assist at discussions relating to the dismissal?
[64] There was no evidence that Scape refused to allow Mr Narwal to have a support person present at the discussions relating to his dismissal. He was told by Scape that he could have a support person present.
Was Mr Narwal warned about unsatisfactory performance before the dismissal?
[65] As I have observed above, Scape referenced performance issues in the letter it gave Mr Narwal confirming the termination of his employment. However, it submits the dismissal did not relate to unsatisfactory performance and seeks to justify its decision based on Mr Narwal's conduct. The question of whether Mr Narwal received a warning about unsatisfactory performance is therefore not relevant in this matter and is a neutral factor in my consideration.
To what degree would the size of Scape enterprise or the absence of human resources management specialists be likely to impact on the procedures followed in effecting the dismissal?
[66] As I have observed, I do not agree that there were particular flaws in the process used by Scape to affect the dismissal. Its size and human resources capacity is therefore a neutral factor in my consideration.
[67] I consider several other matters relevant to the question as to whether the termination of Mr Narwal's employment was harsh, unjust and unreasonable.
[68] I consider it appropriate to take into account the effect over Mr Narwal's personal and economic circumstances resulting from his dismissal. Mr Narwal said he has not been successful in obtaining another job, despite his best efforts. I note that apparently, his role was likely ending anyway, but the harshness of the effect of the dismissal over him in circumstances where he claims to have only been acting generously weighs to some extent in favour of a finding that it was unfair.
[69] That harshness was tempered to some extent by Mr Narwal having been paid four weeks salary in lieu of notice. This was his contractual entitlement, but it is a sum above that prescribed under the National Employment Standards for an employee of his length of service and thus reduced the immediate economic effect of the dismissal over him.
Is the Commission satisfied that the dismissal of Mr Narwal was harsh, unjust or unreasonable?
[71] As I have explained, I can find no fault in the process used by Scape to affect the termination of Mr Narwal's employment. While I do not consider that either the allegation in relation to the missing parcels or comments about Mr Narwal's work performance justified the termination of his employment, the loan of his car to a resident who may well not have been licensed to drive was an extremely significant error of judgement and conduct which, taking into account the nature of his role and responsibility to his employer did constitute a valid reason for his termination of employment. This weighs significantly in favour of a conclusion that the dismissal was not unfair. While the effect of the termination over Mr Narwal's personal and economic circumstances was no doubt harsh, all of the other factors I am required to consider either weigh in favour of a finding the dismissal was not unfair or are neutral.
[1] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 [14]
[2] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 [373]
[4] Edwards v Giudice [1999] FWC 1836 [7]; B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191; Owen Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033
[5] Raj Bista v Glad Group Pty Ltd t/a Glad Commercial Cleaning [2016] FWC 3009 [34]
[6] Kylie Smith v Bank of Queensland Ltd [2021] FWC 4 [124], [126]
[7] Joshua Jiminez v Accent Group t/a Platypus Shoes (Australia) Pty Limited [2016] FWCFB 7201 [17] - [18]
[8] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681 [685]
[9] See Nigel Haslam v SAE Institute Pty Limited [2025] FWC 3826 [14] - [16]
[10] Newton v Toll Transport [2021] FWCFB 3457 [182]
[11] Crozier v Palazzo Corporation (1996) 98 IR 137 [73]
[12] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) IR 117 357 [51]; Edwards v Giudice [1999] FCA 1836 [6] - [7]
Printed by authority of the Commonwealth Government Printer
Kapil Narwal
Scape Australia Management Pty ltd [2026] FWC 305
(1995) 62 IR 371
(1996) 142 ALR 681
(1996) 98 IR 137