s.394 - Unfair dismissal

Application for an unfair dismissal remedy - small business fair dismissal code - serious misconduct - dismissal unfair - compensation ordered

• [1] Ms Kathy Stabe (the Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy regarding her dismissal from Jackson Garden And Landscape Supplies (the Respondent).

• [2] A conciliation was held on 29 July 2025 and the matter was not resolved. The matter was listed for hearing on 24 September 2025. The Applicant was represented by Mr Paul Jeffery of counsel. The Respondent was self-represented. Leave was granted for the Applicant be represented under s.596 of the Act.

• [3] Section 396 of the Act requires satisfaction of four matters before considering the merits. I am satisfied that the Applicant made her application within the 21-day period required by s.394(2) of the Act, is a person protected from unfair dismissal and that her dismissal was not a case of genuine redundancy.

• [4] The Respondent objected to the application on the basis that the dismissal was consistent with the Small Business Fair Dismissal Code (the Code). It was not contested that the Respondent had less than 15 employees at the time of the dismissal. The Applicant, however, argues that the dismissal was not consistent with the Code.

• [5] The Applicant commenced her employment with the Respondent on 4 January 2022 and her employment came to an end on 26 May 2025.[1]

• [6] At the time of the termination of the Applicant's termination, she was employed in the position of office manager.[2]

• [7] As the name indicates, the Respondent's business involved selling garden and landscape supplies. One product which the Respondent sold was AniWood, which is a sawdust product used for animal bedding.[3]

• [8] In mid-May 2025, Ms Carmen Jackson, owner of the Respondent's business, the claims that she became aware of discrepancies in the AniWood stock.[4] This prompted the Respondent to do a stocktake on AniWood on 21 May 2025.

• [9] On 21 May 2025, Ms Jackson interviewed staff.[5] Ms Jackson alleges that her conversations with employees revealed that the Applicant had been instructing staff to deliver the AniWood to her stables. The staff reportedly described the Applicant having AniWood delivered to her stables in quantities of 10 or so bags at a time.

• [10] On 21 May 2025, Ms Jackson spoke to Ms Unwin, one of the employees regarding the sawdust being delivered to the Applicant's house. Ms Unwin had been employed by the Respondent from 11 April 2025 to 4 June 2025. Ms Unwin said she was pulled aside by Ms Jackson and was told that the Applicant had been terminated for theft. Ms Unwin said she found that hard to believe. Ms Unwin was not asked to provide a statement, as Ms Jackson was aware that she was a personal friend of the Applicant's.

• [11] Ms Unwin texted the Applicant, who was overseas at the time, on 21 May 2025 to inform her that her employment has been terminated for theft. [6]

• [12] Ms Unwin gave evidence that between 8 and 12 bags of AniWood were delivered to the Applciant's house while the Applicant was on holiday, but that the Applicant intended to pay for that once she returned. The Applicant paid for the AniWood upon her return.

• [13] At the time, the Applicant was living on a property next door to the workplace with 16 horse stables. This property was rented from the Respondent. The dispute regarding the property has somewhat coloured the unfair dismissal claim. The Applicant's evidence is that she had three horses. The Respondent argues that there were more horses. The Respondent argues that the Applicant stocked the AniWood product for the purposes of maintaining her horses.

• [14] In the week of 21 May 2025, the Applicant was on holiday and would not return for another week. However, Ms Jackson gave evidence that she was "livid" and wanted to act quickly. She contacted lawyers and made an appointment for the next available time, which was 26 May 2025. In the five days following 21 May 2025, Ms Jackson obtained written statements from four employees. Those statements are dated between 25 May 2025 with the exception of the second statement provided by one employee dated 6 August 2025.

• [15] The statements from 25 May 2025 read:

Personally I have only been requested to load up the bucket of the front end

loader with 7 wrapped bales of Ani-wood and drop off next door in the walkway

Being a Truck driver I usually spend 85% of the time on the road so apart from

that I haven't personally seen any other issues apart from other crews comments

The past few months I haven't worked any day with Kathy but I've taken aniwood, usually 10 at a time over to her stables multiple times and witnessed her taking product from the yard with the loader over to her place a few times swell, usually sand and I think roadbase or crusher dust aswell

...There were regular occurrences where I would deliver a product called "Aniwood" to her residence next door, I always assumed the product had been paid for doing the transaction herself and not by another staff member.

in the last couple of months I have delivered 3 lots of 10 of ainwood shavings to

• - approximately 2 months ago, one day on the weekend she used the Koboto

loader to take 2 metres plus of materials to the horse yards.

• - no response to complaint's about co-workers not performing.
• - no response to fixing machinery unless broken.

Question from Carmen Jackson Did you ever witness her falsifying timesheets? Apparently she would sign in 6am and not come over til 9 and also go home during day to do horses

No, I have not seen that, but she would take at least an hour in the morning or

afternoon (normally 3pm in the afternoon) to look after horses

• [16] On 26 May 2025, Ms Jackson contacted her bookkeeper and asked her to provide records of invoices from Rocky Point mulching so you could review the business's AniWood purchases since 2020. Ms Jackson also reviewed the Xero accounting records. Ms Jackson determined that 672 bags had been purchased between 9 June 2022 and 17 April 2025. 150 sales had been recorded in the system. Of those sales, the Applicant had recorded 114 purchases of AniWood in the point-of-sale system. A further 36 bags were sold to members of the public. This, according to the Respondent, gave a total of 522 AniWood bags which were unaccounted for. Ms Jackson estimated that this amounted to $18,875.15 based only on the purchase invoices and recorded computer sales.

• [17] On 26 May 2025, the Respondent, through a solicitor, issued a letter of demand to the Applicant in the amount of $20,000.00, stating "despite the losses being in the vicinity of $50,000". The letter is not in the form of a termination letter but does note that "our client has no wish to have any further dealings with you, our client will not agree to continue to employ you, and you are no longer welcome to reside at [address redacted]".

• [18] There was an exchange of letters between the Applicant and Respondent's solicitors following 26 May 2025, in which the Applicant denied the allegations of theft. Ms Jackson filed a police report on 13 June 2025, though the Applicant gave evidence that she has not been contacted by police.

• [19] The Applicant admits to purchasing bags of AniWood and having them delivered to her stables. She admits to having the bags delivered and then paying later, including for bags which the Applicant had delivered while she was on holiday in May 2025. She denies the allegations of theft and notes that the quantity of bags which she purchased varied from order to order. She has provided bank statements showing payments to the Respondent which she says are for the AniWood.

• [20] The Applicant led evidence, including from two former employees, Ms Unwin and Mr Rampling, that there was a practice amongst employees to leave a post-it note on the counter to record what an employee was purchasing. The employer would then pay later, for example, on their pay day. This is obviously not an ideal system and is likely to lead to discrepancies including, as the Respondent pointed out, if the post-it note goes missing. Ms Jackson's evidence was that she did allow staff discounts, but was not aware of the practice of using post-it notes.

• [21] The Applicant's evidence is that Ms Jackson was rarely in the workplace in person, though she was contactable over the phone. Ms Jackson acknowledged that personal circumstances prevented her from being on site regularly.

The Small Business Fair Dismissal Code states the following:

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 Fair Work Australia, 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.

• [22] The Full Bench decision in Pinawin v Domingo [2012] FWAFB 1359 (Pinawin) summarises the following principles.

This test brings the position for small businesses into line with the test for unfairness applied by tribunals in the UK in misconduct cases. In the leading case of British Home Stores Ltd v Burchell, the Employment Appeal Tribunal held that:

"What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further."

• [23] Deputy President Bartel in Narong Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Cafe [2010] FWA 7891 said at 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 [2011] FWA 3922 at [8] said:

"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.

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."

• [24] In testimony, Ms Jackson said that when she interviewed employees on the 21 May 2025, she became increasingly concerned with all the loose processes described. Upon hearing that employees had delivered this product to the stables next door, Ms Jackson formed the view that there was only one explanation, that the Applicant stole the AniWood.

• [25] It is clear from the testimony and Ms Jackson's evidence that Ms Jackson did hold a belief that the Applicant had stolen from the business at the time of the dismissal. The Respondent held a belief that the Applicant had engaged in conduct sufficiently serious to warrant summary dismissal. The first step of Pinawin is satisfied.

• [26] The next step is to determine whether Ms Jackson had reasonable grounds to form that belief. As part of that, it is necessary to consider whether she conducted a reasonable investigation on the basis of that belief.

• [27] I accept that there is a discrepancy between the stock and the sales in the system for AniWood. However, it is not clear whether that discrepancy is attributable to the Applicant.

• [28] The basis for Ms Jackson's belief that the Applicant stole the AniWood is circumstantial. She noted that the Applicant trains horses and has a stables next door to the workplace. Ms Jackson noted that the AniWood is used for horse bedding. Ms Jackson obtained statements from employees in which they said that the Applicant had bags of AniWood delivered to her stables. Together with the discrepancies identified through the invoices and POS systems, it seemed to the Respondent that the Applicant was responsible for the missing AniWood.

• [29] However, as was put to Ms Jackson during the hearing, none of the statements dated 25 May 2025 described the Applicant having AniWood delivered and not paying for it. The Applicant's evidence is that she did ask staff members to deliver AniWood to her house so, in that regard, the employee's statements are consistent with the Applicant's. The Respondent was aware that the Applicant did purchase AniWood for her own use and had recorded purchases in the POS system.

• [30] Where the statements from employees are consistent with the Applicant having the product delivered to her house, and paying for it, as she said was her practice, further evidence was required for the Respondent to have reasonable grounds to believe that the Applicant had stolen from the business. What was required was for the Respondent to put the allegations to the Applicant to see if she could explain the discrepancies and to test whether her evidence contradicted that of the other employees. The allegation against the Applicant is that she stole 522 bags over three years. If it was accepted that she had bags delivered in quantities of 10, she would need to have done that over 50 times, without paying and without the Respondent, or other employees, noticing that she had not paid.

• [31] I am not satisfied that the Respondent had a reasonable basis for the belief that the Applicant had committed serious misconduct. Accordingly, the dismissal was not in accordance with the Small Business Fair Dismissal Code. I will now consider whether the dismissal was harsh, unjust or unreasonable.

Was the dismissal harsh, unjust or unreasonable?

• [32] 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);

• [33] A valid reason for dismissal should be "sound, defensible or well founded" and should not be "capricious, fanciful, spiteful or prejudiced."[7] 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".[8] The Commission must consider the entire factual matrix in determining whether an employee's termination was for a valid reason.[9]

• [34] The reason provided for the dismissal was theft of approximately $20,000 worth of product. The Briginshaw standard applies to such an allegation. Dixon J stated in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362-363:

But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. ...This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues (Doe d. Devine v. Wilson; Boyce v. Chapman; Vaughton v. London and North Western Railway Co; Hurst v. Evans; Brown v. McGrath; Motchall v. Massoud; Nelson v. Mutton; Gerder v. Evans; sed quœre as to the statement of Swift J. in Herbert v. Poland; see, further, Wigmore on Evidence, 2nd ed. (1923), vol. v., p. 472, par. 2498 (2) (1)). But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.

• [35] As stated earlier, the reasons for the allegation against the Applicant, are, to use a criminal law term, circumstantial. Ms Jackson formed the view that the Applicant had stolen the product based on the fact that she kept horses, potentially a number of horses, and that this explained the large number of missing bags of AniWood given the Applicant had the product delivered to her house. The Applicant denies the allegation and alleged that the shed where the AniWood was kept was left unlocked. Further, the evidence demonstrates that there was a practice in place for employees to pay for products later. Whether the Respondent had a policy against this or not, the evidence shows that it went on for some time and was a practice engaged in by many employees.

• [36] Given the seriousness of the allegation, the evidence is not sufficient to persuade me that the Applicant stole the AniWood. I note the Applicant has provided bank statements with numerous payments made to the Respondent which she says were for the AniWood.

• [37] I find that there was no valid reason for dismissal. This weighs in favour of finding that the dismissal was harsh, unjust or unreasonable.

(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

• [38] The Applicant was notified through Ms Unwin on 21 May 2025 that her employment had been terminated for theft. She later received a letter from the Respondent's solicitor terminating her employment for theft. The Applicant was not given an opportunity to respond to the allegations. This weighs in favour of finding that the dismissal was harsh, unjust or unreasonable.

(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

• [39] The Applicant could not have requested to have a support person present as there was no discussion prior to the dismissal. The termination also took effect while the Applicant was overseas.

• [40] Accordingly, 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

• [41] 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

• [43] The Respondent is a small business. I find it likely that the size of the business impacted the procedures followed. The evidence shows that the Respondent did not have practices in place for key matters such as hiring, issuing written contracts and monitoring employee purchases. Similarly, the Respondent did not follow a standard process in effecting the dismissal. This factor weighs against a finding of unfairness.

(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

• [44] The Respondent did not have a human resources manager. The lack of expertise in the enterprise did affect the procedures followed. This factor weighs against a finding of unfairness.

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

• [45] A relevant factor I consider is determining whether summary dismissal was a proportionate response to the Applicant's conduct.[10] The Applicant submits that it was not. The Applicant submitted in closing submissions that the most the Applicant's conduct amounts to is a breach of procedure. She did pay for the AniWood, but not until she returned from her holiday. The Applicant also submits that it was harsh that others in the business were informed of her termination before she was. I find that the summary dismissal was disproportionate to the breach and harsh in that sense. The post-it system was clearly manifestly inadequate and the employees should have been expressly warned against it. However, part of the blame for the poor processes also lies with the Respondent, who is ultimately responsible for the business.

• [46] Considering all the factors above, there was no valid reason for dismissal and the dismissal was harsh. Therefore, the Applicant is entitled to an unfair dismissal remedy. I now consider remedy.

• [47] 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.

• [48] 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."

• [49] The Respondent advised during the hearing that the business ceased operating on 1 August 2025 due to compulsory land resumption of the business's property. Accordingly, reinstatement would not be appropriate.

• [50] 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."

• [51] The established approach to assessing compensation in unfair dismissal cases was set out in Sprigg v Paul Licensed Festival Supermarket,[11] and has been applied and developed by Full Benches of the Commission.[12]

• [52] 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[13] 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.[14]

Step 3: Discount the remaining amount for contingencies.[15]

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).

• [53] The Applicant worked with the Respondent approximately three and a half years. Counsel for the Applicant made a sensible concession that since the business ceased operating on 1 August 2025 due to a compulsory land resumption, compensation could only be awarded up to that date. I find that had the Applicant not been terminated, she should have remained employed for no longer than 4 weeks. Setting aside the resumption, the Respondent was also unhappy with the processes which the Applicant had put in place as manager.

• [54] The Applicant's last two weekly pay slips prior to her dismissal are in amounts of $1,312.50 and $1,207.70 gross. Given the $1,207.50 pay was for a week which includes a public holiday, I will use $1,312.50 gross as the Applicant's weekly figure. Had the Applicant not been terminated, she would have remained employed for another 4 weeks, which is equivalent to $5,250.00 before tax.

• [55] The Applicant stated that she had not earned any remuneration since her dismissal, and that she had difficulties finding a new job as she did not have a separation certificate.

• [56] I make no deductions for failure to mitigate her losses in the period of 4 weeks following the dismissal.

Step 3: Discount the remaining amount for contingencies.

• [57] I have made 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."

• [58] In Bowden v Ottrey Homes Cobram and District Retirement Villages,[16] 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.

• [59] No issues of viability were raised by the Respondent.

The Respondent is ordered to pay the sum of $5,250 gross plus superannuation within 21 days upon issuing this Order to the Applicant's nominated bank account that was on payroll.

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

[8] [2021] FWC 4 at 118.

[9] 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.

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

[11] [1998] AIRC 989; (1998) 88 IR 21.

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

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

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

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

[16] [2013] FWCFB 431

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