Fair Work Commission|2025-07-03

Kylie Wykes v Wilmar Sugar Pty Ltd [2025] FWC 1811 (3 July 2025)

s.394 - Application for unfair dismissal remedy

[1] On 25 September 2024, Kylie Wykes (the Applicant) made an application to the Fair Work Commission (Commission) under section 394 of the Fair Work Act 2009 (Cth) (Fair Work Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Wilmar Sugar Pty Ltd (the Respondent). The Applicant seeks an order for reinstatement, and orders for continuity of service and lost pay, or compensation.

[2] For the reasons set out below I have decided to grant the application.

[3] Ms Wykes had been employed at the Plane Creek Mill at Sarina since 30 May or 3 June 2019. The parties gave slightly different commencement dates, but the difference is not material to these proceedings. At the time of the dismissal she was engaged as a Pan Boiler.

[4] On 10 September 2024, Ms Wykes left work early. The events of that night, and the days that followed, go to whether there was a valid reason for the dismissal, and are discussed below.

[5] On 14 September 2024, Ms Wykes was notified, in writing, of her dismissal which took effect that same day, with four weeks' pay in lieu of notice.[1]

[6] The letter notifying Ms Wykes of her dismissal gave the following reasons:

"You currently have an Intolerable Breach of 'sleeping on the job during your shift'. There have been further reports of this occurring whilst at work from multiple people. As is the case with all Intolerable Breaches that do not result in termination, you were notified that 'any further breach of discipline will almost certainly result in termination of employment.'

On the evening of 10 September 2024, you left your station and only notified your supervisor once you were offsite. This left an unqualified employee who you were responsible for training to man the station. This also affected production and throughput ability of the mill.

Wilmar Sugar and Renewables considers it has no option but to terminate your employment due to an unsatisfactory standard of work performance, failure to follow company procedures and policies, and wilful neglect.

[7] Under Part 3-2 of the Fair Work Act, which relates to unfair dismissal, the two main questions are:[2]

• was the Applicant "protected from unfair dismissal" at the time their employment ended;[3] and

• was the Applicant unfairly dismissed?[4]

[8] These questions are considered in that order. If the Commission is satisfied that the answer to both is yes, then it can consider whether to order a remedy for the unfair dismissal.

[9] There are various conditions the Applicant has to meet to be protected from unfair dismissal. There are also various issues to consider in deciding whether someone has been unfairly dismissed. I will discuss these below.

[10] The application was filed on 25 September 2025. The employer response was filed on 16 October 2024. The parties did not resolve their dispute by conciliation, and so this application is now being determined.

[11] If there are contested facts the Commission has to hold a conference or hearing when determining the application.[5] In directions issued on 12 December 2024, I invited the parties to provide their views, if any, as to whether this application should be determined in what is referred to as a "determinative conference," or at a hearing, in their outline of submissions. The parties did not provide any views either way. I considered whether a hearing would be the most effective and efficient way to resolve the matter. After doing so, I decided[6] to hold a hearing. That hearing was held on 14 April 2024, in Mackay.

[12] Ms Wykes was represented by her union, The Australian Workers' Union (the AWU). Mr Geoff Taylor appeared on her behalf. Earlier in these proceedings I gave the Respondent permission to be legally represented. Pursuant to that grant of permission, the Respondent was represented at the hearing by Mr Maurice Swan of Swan Law. I was greatly assisted by Mr Taylor and Mr Swan's submissions.

[13] Ms Wykes gave evidence on her own behalf, as did Mr Kerrod "Nick" Andersen. Mr Dirk Bester gave evidence for the Respondent. The Respondent also tendered witness statements of Ms Shanna Southern and Ms Georgia Nilon, who were not required for cross-examination. I will now set out the material evidence.

[14] On 22 November 2023, Ms Wykes received a written warning and reprimand, referred to by the Respondent as a "Warning notice - Intolerable breach."[7] That warning was stated to expire on 22 November 2024. The face of that document provides the following reasons for the reprimand:

on 5 September 2023 Ms Wykes had received a "major breach" after there had been reports she had been found sleeping on the job;

management had been provided with evidence this had happened again since;

there had been noted neglect when performing duties, which had caused operation issues;

she had had a poor attitude to work colleagues and the production team.

[15] The document warned that "any further breach of discipline will almost certainly result in termination of employment."

[16] In July 2024, Ms Wykes suffered a significant physical injury, with a finger on her right hand being crushed while at work at the Mill. She made a WorkCover claim and subsequently worked with a safety officer at the Mill in relation to her recovery. She was still suffering pain from this injury by the time of the events leading to her dismissal in September 2024.

[17] The evidence revealed very little contest as to the events of 9 to 14 September 2024.

[18] On 9 September 2024, Ms Wykes worked her rostered overnight shift.

[19] Ms Nilon says that on the afternoon of 10 September 2024 she received an email from Mr Matthew Richter, Operations Superintendent, regarding complaints from two employees to the effect that Ms Wykes had been sleeping on the job.[8]

[20] Ms Wykes said that on 10 September 2024 she had attended work. She says that when she got to work a co-worker, Mr Pierre Coetzee,[9] told her that two other co-workers had made allegations about her sleeping on the job. She says that the individuals could not properly have formed the view that she had been sleeping on the job because from their vantage point they could not have seen anything but the back of her chair. She said that when she was told about these allegations, everything got to her, because she had an existing work injury, because she knew the allegations to be untrue, and because she was fearful that she would lose her job. She says at this point she had a breakdown and was not fit for work. Under cross-examination she said she had been "a blubbering mess."

[21] As indicated above, the work injury Ms Wykes was carrying at the time was a finger crushed from two months earlier, in July 2024. She was still in pain at the time. As at the time of the hearing she said she was still in pain from the injury every day. This is plausible.

[22] It is plausible that Ms Wykes feared losing her job given the Intolerable Breach notice was yet to expire at this point.

[23] It is plausible that the combination of co-workers making allegations about her, the work injury, and fear of losing her job caused Ms Wykes to breakdown and become a "blubbering mess."

[24] Mr Andersen, employed as a Senior Sugar Boiler, said that at the start of his shift on 10 September, a co-worker, Kevin Schaffer,[10] had told him that he, Mr Schaffer, had given a statement about Ms Wykes sleeping on the shift the night before. Mr Andersen says he knew this allegation was unfounded because he had worked with Ms Wykes on 9 September 2024. He said Mr Schaffer had been seated behind Ms Wykes in a position where he could not have seen whether she was sleeping or not. Mr Andersen said the worker who had given the statement told him and Mr Coetzee that he had made a complaint and this should be enough to get Ms Wykes laid off.

[25] Mr Andersen's evidence was that when Ms Wykes arrived at work, Mr Coetzee informed her about what had transpired. He said he saw Ms Wykes becoming visibly upset, and that she could not stop crying and shaking. He says she said she could not work because it affected her quite badly.

[26] After being told of the allegations against her, Ms Wykes telephoned Mr Bester, a supervisor who held the title Operations Coordinator, on his mobile phone.[11] Mr Bester says this call was at around 7.15 pm. He says Ms Wykes was in a distressed state and said she "could not deal with this place." This phone call prompted Mr Bester to leave the milling train and go to Ms Wykes' workstation at the pan stage.

[27] Consistent with Ms Wykes' account that she was a blubbering mess, Mr Bester says that when he arrived, Ms Wykes was "sobbing." He says she said that the bullying from the other operators was too much for her, and that she was exhausted from being on cover roster all season. He says that she said she was planning to go home and was considering resigning. He says he and Mr Andersen convinced Ms Wykes to take a break for half an hour instead, in the smoko room, to cool her head before deciding on anything.[12] He says he left at around 7.30 pm.

[28] Mr Bester said those present were himself, Ms Wykes, Mr Andersen, Mr Coetzee, and a Cody Riley. The Respondent did not call the latter two as witnesses. I need not draw any inference in that regard given the three persons who were present and did give evidence, Mr Bester, Mr Andersen, and Ms Wykes, gave materially consistent accounts.

[29] Mr Andersen said Ms Wykes said she was going home. He said Ms Wykes said she wanted to go home because of her distress. He said both he and Mr Bester suggested that Ms Wykes go and sit in the big smoko room and think about it. He said Ms Wykes said she would, but probably would still go home.

[30] Ms Wykes' evidence was that she let Mr Bester know she needed to leave work as she could not competently do her job, and Mr Bester suggested she take a break and said she should advise him if she was fit to continue work or not after that break.

[31] Ms Wykes said ten or fifteen minutes into the break it was clear to her that she was not coping, and she decided to leave. She says she had not calmed down and was not fit for work. She says that she sent Mr Bester a text message from the car park. Mr Bester gave evidence that at 8.15 pm, when he looked at his phone, he saw that Ms Wykes had sent him a text message at 7.51 pm. The text message read "I'm out for tonight."[13]

[32] Mr Bester described the message as curt. However, he obviously would have understood it to relate to the discussion that had occurred less than an hour earlier.

[33] Shortly after sending her message to Mr Bester, Ms Wykes drove herself outside of the Mill's grounds and then pulled over. She says she sat there for a very long time before driving home.

[34] It was common ground between the parties that Ms Wykes did not "clock off" via the Kronos time and attendance system in use at the Plane Creek Mill.

[35] Mr Swan cross-examined Ms Wykes on why she had not been to see Mr Bester to tell him that she was leaving. Ms Wykes said she was a mess. She said she had had a mental breakdown on site at work, and she did not want to be walking around the site. She said there was steam and equipment everywhere. Mr Swan also cross-examined her as to the use of mobile phones on site, in light of workplace policies restricting mobile phone use, which were in evidence,[14] and in light of noisy conditions.[15] Ms Wykes said that 90% of the time supervisors have their mobile phones in their pockets, set to vibrate. She said she knew Mr Bester had his mobile phone at work because she had phoned him on it earlier that night. This was not in contest. Mr Taylor asked Mr Bester about whether supervisors read or conducted text messaging in the workplace. Mr Bester said it "happened all the time."

[36] It was common ground that Mr Bester had not arranged for anyone to stay with Ms Wykes during the break, or for anyone to check on her during or at the end of the half hour. It was common ground that Mr Bester himself did not check on Ms Wykes at the end of the half hour, and Mr Bester stated that he could not leave during the start-up of the Mill. There is no evidence of anyone checking on her well-being until Mr Bester saw her message at 8.15 pm.

[37] After receiving the text message Mr Bester went to Ms Wykes' workstation. Mr Andersen and Mr Coetzee confirmed they had not seen her. Mr Bester says they were unaware she had left the site.[16]

[38] At 9.38 pm, Mr Bester sent a text message to Ms Nilon:[17]

"Kylie has walked out tonight due to emotional distress. She says the bullying from other operators is too much and she's exhausted from being on cover all season.

Nick and I convinced her to take 30min to cool her head before deciding anything. She's strongly considering submitting her resignation.

As for the allegations that she's sleeping on the shift and not doing her job, I haven't seen her sleeping during my rounds on shift. Nick and Pierre have both confirmed that she's been doing her job and staying awake.

Operations wise, we won't bring the rocket on tonight, Nick and Pierre can handle the station while we're batching. That said we'll need to figure out what sort of coverage we're looking at is she's not back for tomorrow night's shift."

[39] Ms Nilon, in a reply message, thanked him and said he was doing a good job despite the tough circumstances.

[40] In the early morning of 11 September 2024 Mr Bester emailed Mr Richter and Ms Nilon in the following terms:

At start of shift while starting up the milling train, received a call from Kylie saying she can't deal with this place.

Went up to pan stage where I found an awkward atmosphere and Kylie sobbing.

Nick Anderson, Pierre Coetzee, and Codey Riley were present at the time.

She said the bullying from other operators is too much and that she's exhausted from being on the cover roster all season.

She was planning on going home and submitting a resignation letter later.

Nick and I convinced her to take 30 minutes to cool her head and reconsider before deciding.

The milling train was ready to start at this point, so I went to oversee the startup and give Kylie some space.

After finishing startup, I checked my phone to find a message from Kylie that she'd gone offsite.

I checked panstage again to confirm that she had left site.

Regarding statements, she's always been awake when I've checked in on her station during rounds.

Pierre reckons she is teaching him at a reasonable pace, considering that we haven't had stead operating conditions for the last few weeks."

[41] He sent another email in materially the same terms a little later in the morning, this time attaching a handwritten statement from each of Mr Coetzee and Mr Andersen. In that regard:

(a) Mr Coetzee's statement was about a co-worker telling him at around 5.50 pm on 10 September 2024 that management was looking into allegations of Ms Wykes sleeping on duty, and that questions were being asked about the training she was providing to him. The statement says "I am not interested in this BS and I have not seen [Ms Wykes] sleep on duty," and "the training has been interrupted due to unforeseen stoppages and quick actions are required to prevent errors/mistakes which is why [Ms Wykes] would sometimes take control and do it herself instead of me whilst explaining." The statement says that after day shift he told Ms Wykes about the allegations, but does not go into the events that followed. As indicated above the Respondent did not call Mr Coetzee as a witness.

(b) Mr Andersen's statement was longer and went to various matters which it is not necessary to recite here. It did not relate to the events of the night of 10 September 2024. As indicated, Ms Wykes called Mr Andersen as a witness.

[42] Ms Nilon's evidence was that there was a meeting conducted on 11 September 2024 regarding Ms Wykes, at which she was not present. She said that she had been told, and believed, that at that meeting "the business had decided to terminate the Applicant's employment." This was a frank admission, against the Respondent's interests in these proceedings given it demonstrates a failure to afford procedural fairness. There is no evidence of any attempt to obtain an account of the relevant events from Ms Wykes, or any of the persons who were present during the material events, with the exception of Mr Bester, prior to this meeting.

[43] The Respondent did not call as a witness any of the persons who were present at this meeting. Given Ms Nilon's admission I do not need to infer that their evidence would not have assisted the Respondent.

[44] It was not in contest that on 11 September 2024, Ms Wykes sent a medical certificate to Mr Richter. The medical certificate indicated Ms Wykes was unfit for work from Wednesday 11 to Friday 13 September 2024 inclusive and indicated she should seek assistance for anxiety/depression. Mr Richter acknowledged receipt.[18] If Ms Wykes' sobbing, wanting to go home, talk of resigning, and departure from the site had not been sufficient to put the Respondent on notice of Ms Wykes' lack of fitness for work the night before, then this medical certificate would have cast more light on the matter. Ms Wykes followed up with Mr Richter the following day to make sure he had noticed that the certificate covered 13 September 2024 as well.[19]

[45] Ms Wykes says she telephoned Mr Bester to tell him that she would also not be in on Saturday 14 September 2024. Her initial statement could be taken as indicating this had been done on 11 September 2024. Mr Bester said he "could not recall" a telephone call on this date. Ms Wykes, in her statement in reply, corrected her earlier statement to indicate the call had been on 12 September 2024. She annexed a telephone record which shows a call to Mr Bester on that date lasting 1 minute, 7 seconds.[20] The Respondent did not seek to contest this further. I accept that the call occurred, and that the Respondent was on notice that Ms Wykes would be taking further personal leave from 14 September 2024 and was attending a doctor's appointment that day.

[46] Ms Nilon says that she was away from the afternoon of 10 September to the afternoon of 12 September 2024. When she returned on 13 September 2024, she sought an update from Ms Sarah Percy, Workplace Relations Business Partner, who emailed her a letter of termination that had already been approved.[21] The letter that Ms Percy provided to Ms Nilon was in materially the same terms as the termination letter that Ms Nilon ultimately provided to Ms Wykes. The email asked Ms Nilon to let Ms Percy know once the letter had been issued. The Respondent did not call Ms Percy as a witness. I need not draw any inference from that given Ms Nilon's proper admission that the termination letter had already been approved.

[47] Even though Ms Wykes was on personal leave covered by a medical certificate, Ms Nilon says she tried to arrange a meeting with Ms Wykes for that afternoon, 13 September 2024.[22]

[48] Despite being on notice that Ms Wykes would be taking further personal leave, the Respondent purported to direct her to attend a meeting at 7 am on that date, 14 September 2024, in Sarina. This was on the basis that Saturday was a rostered day for Ms Wykes and she was due to start at 6:00 am.

[49] Ms Wykes did not agree to attend the meeting. It was common ground that she sent a text message to Ms Nilon at 5:00 pm on 13 September 2024 stating "Hi Georgia sorry haven't had my phone. I rang Dirk yesterday and spoke to him and informed him I wouldn't be in Saturday and that I also have a doctor's appointment Saturday. thanks kylie." Ms Nilon responded with "Hi Kylie, we still require you to attend a meeting tomorrow morning as per the above."

[50] In her reply statement Ms Wykes says she often does not have her telephone near her during the day when at home, because it makes her anxious. She says she was not deliberately non-communicative. Self-evidently, an employer would not reasonably expect an immediate response to phone calls when the employee they are calling is on personal leave.

[51] Before 7 am on 14 September 2024, Ms Wykes sent a text message to Ms Nilon stating "Hi Georgia I'm unavailable for the meeting this morning but will be in Sarina at 12."

[52] A short time later Ms Nilon emailed the termination letter[23] to Ms Wykes. She sent Ms Wykes a text message to draw her attention to the email.[24] The text of the termination letter is set out above.

[53] Ms Wykes says she offered to meet Ms Nilon when she came to Sarina for her medical appointment. Ms Nilon said she did not. Ms Wykes may have thought it was obvious that her references to when she would be in Sarina were suggestions about when they could meet. Equally, this was not explicit and Ms Nilon may not have appreciated this intent when reading the messages. Nonetheless, it was clear that Ms Wykes had previously communicated to Mr Bester that she would not be working on the Saturday and would be going to the doctor, and had then communicated this to Ms Nilon directly.

[54] It is not contested that the purpose of the meeting that Ms Nilon sought to have at 7 am on 14 September 2024 was to dismiss Ms Wykes, not to offer her an opportunity to respond in relation to any claim that she had left the site without first advising her supervisor, or that she had left her work station manned by an unqualified person and had affected production. That is also clear from Ms Nilon's evidence that the decision to dismiss had been made on 11 September 2024 and that she had received the approved termination letter on 13 September 2024.

[55] Ms Wykes kept her medical appointment on 14 September 2024, and says she was diagnosed with insomnia, anxiety and depression, and prescribed medication.

[56] The AWU, on behalf of the Applicant, filed an outline of submissions on 29 January 2025. The Respondent filed submissions in the Commission on 12 February 2025. The AWU filed an outline of submissions in reply on 19 February 2025. The parties made oral closing submissions at the hearing. I have considered all of the submissions and have canvassed them to the extent necessary below.

[57] As stated above, the dismissal took effect on 14 September 2024 and Ms Wykes filed her application on 25 September 2024. There is no doubt, and I find, that the application was made within the period required under subsection 394(2) of the Fair Work Act.

[58] It was not in contest, and I find, that at the time of being dismissed Ms Wykes met the requirements of section 382 of the Fair Work Act and was a person who is protected from unfair dismissal for the purposes of that section. It is also not in contest, and I find, that Ms Wykes was dismissed, the employer was not a small business employer, and the dismissal was not a case of genuine redundancy. So, the only issue that arises under section 385 of the Fair Work Act is whether Ms Wykes' dismissal was harsh, unjust or unreasonable.

Was the dismissal harsh, unjust or unreasonable?

[59] Section 387 of the Fair Work Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.

[60] These are mandatory criteria that should be taken into account and weighed, to the extent they are relevant to the factual circumstances before me.[25]

Was there a valid reason for the dismissal related to the Applicant's capacity or conduct?

[61] In order to be a valid reason, the reason for the dismissal should be "sound, defensible or well founded"[26] and should not be "capricious, fanciful, spiteful or prejudiced."[27] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[28]

[62] The passage excerpted from the termination letter, set out above, states the reasons the Respondent relied upon at the time of the dismissal. The Respondent relied on the reasons stated in the termination letter. It submitted that the assertion of "unsatisfactory standard of work performance" was a reference to the Intolerable Breach notice of November 2023. It submitted the assertion of "failure to follow Company procedures and policies" related to Ms Wykes leaving her workstation and only notifying her employer after leaving the worksite, and failing to clock off when she left. It submitted the reference to "wilful neglect" related to "leaving an unqualified employee to man the station," which also affected mill production and throughput.

[63] As to the first of those matters, the termination letter refers to the Intolerable Breach notice and also the "further reports" of sleeping on the job. This latter assertion was maintained in the employer response filed in these proceedings, but the Respondent sensibly did not press it at hearing. If it had pressed this assertion, I would observe that the evidence does not establish that Ms Wykes had been sleeping on the job, the Respondent did not call either of the two persons that Ms Wykes said had made the complaints or the other person who was present at the time of the alleged sleeping, and Ms Wykes and Mr Andersen both gave evidence that Ms Wykes had not been sleeping on the job.

[64] As to the Intolerable Breach notice of November 2023, the Respondent relies on it in relation to sleeping on the job at that time, and "poor attitude towards work colleagues and the production team," though the latter is not explicit on the face of the termination letter.

[65] As to the issue of following company policies and procedures, the termination letter does not mention the issue of clocking off. It does mention leaving the workstation and only notifying the supervisor after leaving the site. I will deal with the evidence in that regard shortly.

[66] The termination letter does refer to leaving an unqualified employee to man the workstation. I will also deal with this below.

[67] In these proceedings, the employer sought to rely on additional reasons for dismissal not referred to in the termination letter. As stated above it has relied upon Ms Wykes' failure to clock off when she left on the night of 10 September 2024, despite this not being explicit on the face of that letter. In addition, it has sought to rely on Ms Wykes' use of a text message to communicate with her supervisor, and her refusal to attend a meeting the employer called for 7 am on Saturday, 14 September 2024.

[68] The Respondent also sought to argue that Ms Wykes' conduct constituted:
- serious misconduct;
- a repudiation of her employment contract which it was entitled to accept; and
- a contravention of her duties under section 28 of the Work Health and Safety Act 2011 (Qld) ("the WHS Act").

[69] It also submitted her refusal to attend a meeting at 7 am on the morning of Saturday, 14 September 2024 constituted a failure to follow a lawful and reasonable direction.

[70] As can be appreciated, the reasons relied upon by the Respondent in these proceedings went beyond those relied upon at the time of the dismissal, in the termination letter. What is required is that the Respondent have a valid reason. It need not be the reason given to the Applicant at the time of dismissal.[29] However, the fact that the Respondent did not rely on this reason at the time of dismissal means that the Respondent will have to "contend with the consequences of not giving the employee an opportunity to respond to such reason..."[30]

[71] It can be appreciated from the foregoing and from the termination letter that Ms Wykes was not dismissed for a reason relating to capacity. The termination letter refers to both conduct and performance. I will now consider the question of whether there was a valid reason relating to conduct.

[72] The first reason I will consider relates to the events of November 2023.

[73] As stated above, the Respondent relies on the Intolerable Breach notice of November 2023 not only because it was a prior warning; it also argues this notice constituted the 'unsatisfactory performance' referred to in the termination letter. It did so in relation to both the element of that notice relating to sleeping on the job, and the element relating to "poor attitude towards work colleagues."

[74] Mr Richter's email of the afternoon of 10 September 2024 referred to "poor attitude" without elaborating, but the case was not mounted on the basis that there was some new "poor attitude" issue, and nor was there any direct evidence of any. The Respondent also made clear in the hearing that it was not relying on any fresh allegation of sleeping on the job.

[75] The difficulty in relying on the alleged events of November 2023 as being unsatisfactory performance forming part of the basis for termination in September 2024, as opposed to relying on this only as a prior warning for the purposes of section 387(e), is that the evidence did not go to the events of November 2023 in any detail. The Respondent did not lead evidence to establish that the sleeping on the job, or poor attitude, said to have given rise to the Intolerable Breach notice of November 2023, had actually occurred. On the other hand, there is no evidence that either Ms Wykes or the AWU disputed the Intolerable Breach warning at that the time it was issued in November 2023.

[76] The Respondent characterised the matters in the Intolerable Breach as relating to performance. Sleeping on the job has also been characterised as a matter of conduct in the context of unfair dismissal. The question of whether sleeping at work constitutes a valid reason for termination depends on the circumstances. The relevant factual matrix must be considered. Issues such as the frequency and duration of sleeping, the nature of the work being performed and the responsibilities of the employee concerned, will all be relevant."[31]

[77] Given the paucity of evidence, it would be difficult to find that the matters the subject of the Intolerable Breach warning occurred, or, if they did occur, gave rise to a valid reason for termination relating to conduct, or constituted unsatisfactory performance.

[78] The next reason I will consider relates to Ms Wykes' departure from the worksite.

[79] The termination letter was incorrect to say that Ms Wykes had not advised her supervisor she was leaving until after she was offsite. She had already advised him, at her workstation, that she planned to leave. She had agreed to take a half-hour break at his request but had then thought better of that given she considered she was not fit for work. She then notified him again, from the car park, which is to say, while still on the site.

[80] In closing submissions, the Respondent initially sought to argue that Ms Wykes had been directed or instructed to take a break rather than go home, and that she had failed to comply with that direction or instruction. One difficulty with such an argument is that if an employee is sobbing and distressed to the point of saying they are considering resigning, and says they are planning to go home, then it should be obvious that they are proposing to take immediate personal leave. It is doubtful that a direction to stay on the premises and take a break, instead of going home, in these particular circumstances, would be lawful and reasonable. In any event no witness gave evidence establishing the proposition that the discussion with Ms Wykes about staying at the Mill rose to the level of a direction or an instruction. Mr Bester and Mr Christensen both said they "convinced" Ms Wykes to stay, and Ms Wykes described it as a suggestion.

[81] The Respondent then, more broadly, argued that her going home in the particular circumstances of this case demonstrated that she was unreliable. Ms Wykes agreed under cross-examination that Mr Bester and Mr Andersen's suggestion that she take a break was a sympathetic response, and agreed it was reasonable to ask her to take a break and think about things. Being motivated by sympathy does not make it reasonable to try to convince an employee who is not fit for work, and says they are going to go home, to stay at the workplace.

[82] I do not accept that Ms Wykes left and notified her employer only after leaving the worksite. The assertion that she did so is wrong, on the evidence. I also do not accept that leaving in the particular circumstances gives rise to a conclusion that she was an unreliable employee, which may be considered a matter of conduct or performance. Ms Wykes did not engage in misconduct or poor performance by leaving work, in the circumstances I have described above. I do not accept her departure constituted a valid reason for termination.

[83] The next reason I will consider is whether Ms Wykes left an unqualified employee to man the station, affecting production and throughput. As indicated, this is one of the issues the Respondent relied on in the termination letter.

[84] The difficulty with relying on this as an incident of misconduct is that the Respondent is essentially arguing that taking unanticipated personal leave constitutes misconduct where the person taking the leave does so in circumstances where they are training someone else. It is hard to imagine the Respondent making this sort of assertion if the incident prompting the anticipated personal leave had related to a physical injury rather than a lack of fitness-for-work occasioned by significant distress.

[85] This is also not a case where the worker concerned simply left without telling anyone, leaving a trainee alone to fend for themselves. The evidence shows that Mr Bester, Mr Andersen, and most likely given he was present, the trainee Mr Coetzee, were aware that Ms Wykes would be away for at least half an hour but may go home. They knew that Ms Wykes did not consider herself fit for work. Mr Bester did not consider it necessary to check in before or at the half-hour mark to ascertain what Ms Wykes was going to do, and he was busy with the milling train. Between seeing Ms Wykes' text message at 8.15 pm, and sending his message at 9.36 pm, Mr Bester had made a decision as to the arrangements for Ms Wykes' absence, which involved the trainee and Mr Andersen handling the workstation. Ms Wykes said in her statement in reply that Mr Bester had said earlier that they would not be bringing the rocket on that night, and so there would not have been tasks for which the trainee was unqualified in any event. It is not clear to me when this was said to have occurred. But whether the decision not to bring the rocket on was made before or after Ms Wykes left, it is not surprising that a supervisor in any operation would need to make arrangements to cover unplanned personal leave.

[86] I do not accept that Ms Wykes engaged in misconduct or poor performance by leaving Mr Coetzee in the circumstances. I do not accept her doing so constituted a valid reason for dismissal.

[87] The next reason I will consider is Ms Wykes' failure to clock off.

[88] Ms Wykes said that when she left she was still in "melt down" and forgot to clock off.

[89] Mr Bester's evidence was that if someone was injured, they clocked off if they were capable of doing so. Alternatively, if they let their supervisor know when they leave, the supervisor can handle clocking off for them. He said he clocked off for Ms Wykes.

[90] In the circumstances, I do not accept the failure to clock off constituted misconduct or gave rise to a valid reason for dismissal.

[91] The next reason I will consider is Ms Wykes' use of a text message to communicate with her supervisor. As I have indicated above, the Respondent also sought to raise an issue, in submissions, about Ms Wykes sending a text message to Mr Bester instead of going to see him.

[92] Ms Wykes said that she was so upset that the options of face-to-face or radio communication crossed her mind when she sent her text to Mr Bester at 7.51 pm. She said she might have remembered to radio Mr Bester if she had had the radio with her, but it had been left in the Control Room where it was needed for the operators on duty.

[93] I accept that if Ms Wykes considered she was not fit for work because she was having a breakdown, it is not reasonable to expect her to walk around the inside of a sugar mill to see her supervisor. I also accept, in light of Ms Wykes' evidence and Mr Bester's, that text messaging was commonplace at the mill, notwithstanding the formal policy restrictions on mobile phone use. In all of the circumstances, I do not accept that sending a text message was a valid reason for dismissal.

[94] The last reason I will consider is Ms Wykes' refusal to attend a meeting the employer called for 7 am on Saturday, 14 September 2024.

[95] The Respondent submits Ms Wykes' refusal to attend a meeting at 7 am on the morning of Saturday, 14 September 2024 constituted a failure to follow a lawful and reasonable direction. I do not accept this submission. Firstly, on its own evidence, the decision to dismiss Ms Wykes had already been made, so her refusal to attend this meeting was not a reason for dismissal. More importantly, she had left the workplace in distress, provided a medical certificate for three days, and advised the employer she also would not be at work on the fourth day, during which time she would travel to Sarina to see a doctor. Insisting on a face to face meeting at 7 am on a Saturday during personal leave was not reasonable in the circumstances.

[96] I will now consider the Respondent's submission that Ms Wykes engaged in serious misconduct.

[97] Though the Respondent paid Ms Wykes' four weeks' pay in lieu of notice, it argued in these proceedings that the dismissal was for serious misconduct. An employer has the option to make payment in lieu of notice even if it considers it would have the right to dismiss without notice. For the reasons stated above I do not accept that Ms Wykes engaged in misconduct, and accordingly I do not consider her conduct amounted to serious misconduct.

[98] I will now consider the Respondent's submission as to repudiation.

[99] The test for repudiation is whether the conduct of the employee is such as to convey to a reasonable person, in the position of the employer, renunciation either of the contract as a whole or of a fundamental obligation under it. The issue turns upon objective acts and omissions and not on uncommunicated intention.[32]

[100] In light of the reasons set out above, I do not accept that Ms Wykes, by leaving, or by refusing to attend the meeting called for 7 am on Saturday 14 September 2024, acted in such a manner as to convey to a reasonable person in the Respondent's position that she renounced the contract or a fundamental obligation under it. It follows from the reasons stated above that I do not accept that Ms Wykes repudiated her employment contract.

[101] I will now consider the Respondent's submission as to the WHS Act.

[102] Ms Wykes' evidence was that she considered she was not fit for work on the night of 10 September 2024. She also said she considered that by being at the workplace she posed a risk to others. The Respondent pointed out in its submissions that Ms Wykes owed duties under section 28 of the WHS Act. The written outline of submissions referred to three of the four limbs of that section but omitted the first of the limbs, which was the obligation for Ms Wykes to take care in relation to her own health and safety. The enterprise agreement also contained an obligation for employees to be fit for work.

[103] Ms Wykes dealt with her own lack of fitness for work by:
- calling her supervisor;
- telling her supervisor she was going to go home;
- after acquiescing when her supervisor and a colleague convinced her to stay, reconsidering and reverting to her initial position that she should leave;
- sending a text message to her supervisor letting him know.

[104] I do not accept that Ms Wykes' conduct contravened her obligations under the WHS Act, and accordingly I do not accept her alleged contravention to constitute a valid reason for dismissal.

[105] In all the circumstances, I find that there was no valid reason related to the Applicant's capacity or conduct.

[106] Proper consideration of section 387(b) requires a finding to be made as to whether the applicant "was notified of that reason". Contextually, the reference to "that reason" is the valid reason found to exist under section 387(a).[33]

[107] As I am not satisfied that there was a valid reason related to dismissal, this factor does not arise in the present circumstances.[34]

[108] However, I observe that the decision to dismiss Ms Wykes was made on 11 September 2024. Ms Wykes was not notified of the reasons for dismissal prior to the dismissal.

[109] As I have not found that there was a valid reason related to dismissal, this factor does not arise in the present circumstances.[35]

[110] Nonetheless I observe that there was not, on anyone's case, any opportunity provided to Ms Wykes to respond before the decision to dismiss her was made.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

[111] There were no discussions relating to the dismissal at which this factor could have arisen. There was no evidence that Ms Wykes sought to have a support person at the meeting that Ms Nilon attempted to schedule for 14 September 2024.

Whether the Applicant was warned about unsatisfactory performance before the dismissal

[112] It was common ground that Ms Wykes had received the Intolerable Breach notice in November 2023. That notice relied upon a Major Breach notice from a month prior, regarding sleeping on the job. The Major Breach notice was also in evidence. There was no evidence that Ms Wykes had contested either of them when they were issued.

[113] There is some conceptual difficulty that arises because having abandoned the earlier proposition that sleeping on the job formed part of the basis for the dismissal, the Respondent said the unsatisfactory performance relied upon in the termination letter was "the existing Intolerable Breach" notice per se,[36] not any fresh unsatisfactory performance. The same notice could not be both the poor performance and the prior warning in relation to such poor performance. Regardless, there had certainly been a prior warning in relation to the relevant conduct, that is, the Major Breach notice of October 2023.[37]

[114] In all the circumstances, I find that the Respondent did warn the Applicant of her unsatisfactory performance before dismissing her for, inter alia, unsatisfactory performance.

The size of the Respondent's enterprise and access to human resources expertise

[115] It is obvious from Ms Southern's statement that the employer is substantial and has significant human resources capacity.

[116] The Applicant submitted the size of the Respondent's enterprise should weigh in favour of a finding that the dismissal was harsh, unjust and unreasonable.

[117] In the circumstances, I find that the size of the Respondent's enterprise was likely to affect the procedures followed in relation to dismissing Ms Wykes. Specifically, an employer of some substance would be expected to have reasonable policies and procedures in place to deal with conduct and performance.

[118] As the Respondent's enterprise did not lack dedicated human resource management specialists and expertise, no excuse or justification arises in that regard.

[119] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

[120] In the circumstances, it does not weigh heavily that the separation certificate was not provided immediately. Ms Wykes said she had assumed one would be provided automatically. She contacted the Respondent for a separation certificate in February 2025, and one was provided. She since went on to claim Centrelink benefits.

[121] Ms Wykes argued the economic impact of the dismissal was severe and this should weigh heavily in finding that the dismissal was unfair. In response, the Respondent says she should have considered "the potential effects of her serious and wilful misconduct prior to embarking on the course of conduct that ultimately led to her termination of employment."

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

[122] I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[38]

[123] Having considered each of the matters specified in section 387 of the Fair Work Act, I am satisfied that the dismissal of the Applicant was harsh, unjust, and unreasonable. There was no valid reason relating to capacity or conduct. The dismissal was procedurally unfair. To the extent the Respondent relied on unsatisfactory performance, it was unsatisfactory performance that had occurred a long time ago and the Respondent did not establish that it was such as to justify dismissal. An employer of the Respondent's substance ought to have been able to afford fairness to Ms Wykes.

[124] I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Fair Work Act.

[125] Being satisfied that the Applicant made an application for an order granting a remedy under section 394, was a person protected from unfair dismissal, and was unfairly dismissed within the meaning of section 385 of the Fair Work Act, I may, subject to that Act, order the Applicant's reinstatement, or the payment of compensation to the Applicant.

[126] Under section 390(3) of the Fair Work Act, I must not order the payment of compensation to the Applicant unless I am satisfied that reinstatement of the Applicant is inappropriate, and I consider an order for payment of compensation is appropriate in all the circumstances of the case.

[127] Consistent with the object in section 381(1)(c) of the Fair Work Act, reinstatement is the primary remedy.

[128] The Applicant seeks orders under section 391 of the Fair Work Act for:

(b) remuneration lost between the date the dismissal took effect and the date of reinstatement; and

[129] She made submissions as to compensation in the alternative, if the Commission formed the view that reinstatement is inappropriate.

[130] The Respondent submitted that the application should be dismissed. It did not make submissions in the alternative as to remedy.

[131] As indicated above both parties were represented. I had also specifically invited submissions as to remedy in the notes to my directions issued 12 December 2024.

[132] This case involved an applicant whose evidence was that she had been diagnosed with insomnia, anxiety, and depression on 14 September 2024. There was no submission that she was, as a consequence of this insomnia, anxiety and/or depression incapacitated for work as at the date of the hearing.

[133] Noting the absence of any submissions that reinstatement would be inappropriate, and noting my findings above, I do not find that reinstatement is inappropriate.

[134] Section 391(1) of the Fair Work Act provides that an order for the Applicant's reinstatement must be an order that the Applicant's employer at the time of the dismissal reinstate the Applicant by:

reappointing the Applicant to the position in which the Applicant was employed immediately before the dismissal; or

appointing the Applicant to another position on terms and conditions no less favourable than those on which the Applicant was employed immediately before the dismissal.

[135] No party raised any concern that the position was no longer available.

[136] Section 391(2) of the Fair Work Act provides that, if the Commission makes an order for reinstatement and considers it appropriate to do so, the Commission may also make any order that the Commission considers appropriate to maintain the following:

the period of the Applicant's continuous service with the employer or, if applicable, the associated entity.

[137] As indicated above the Applicant sought such an order and the Respondent made no submissions to the contrary other than its primary submission that the application ought to be dismissed.

[138] In all the circumstances, I consider it appropriate to make an order to maintain the Applicant's continuity of employment and period of continuous service with the employer.

[139] Section 391(3) of the Fair Work Act provides that, if the Commission makes an order for reinstatement and considers it appropriate to do so, the Commission may also make any order that the Commission considers appropriate to cause the employer to pay to the Applicant an amount for the remuneration lost, or likely to have been lost, by the Applicant because of the dismissal.

[140] Section 391(4) of the Fair Work Act provides that, in determining an amount for the purposes of such an order, the Commission must take into account:

the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

the amount of any remuneration reasonably likely to be so earned by the Applicant during the period between the making of the order for reinstatement and the actual reinstatement.

[141] An order to restore lost pay does not necessarily follow an order for reinstatement. The Commission may only make an order if it considers it appropriate to do so and only make an order that the Commission considers appropriate.[39]

[142] As indicated above the Applicant sought such an order and the Respondent made no submissions to the contrary other than its primary submission that the application ought to be dismissed.

[143] In this case I am satisfied that an order for lost pay should be made, and reduced by the amounts that:

Ms Wykes has earned from any other employment in the period since the dismissal; and
Ms Wykes has received from Centrelink in the period since the dismissal.

[144] I have decided that the Applicant was unfairly dismissed, and I have decided to make orders for reinstatement, continuity of service and period of continuous service, and lost pay. An Order giving effect to this Decision will issue with this Decision.

G Taylor of the Australian Workers' Union for the Applicant

[4] Ibid, ss 385 and 390(1).

[7] Exhibit 7 Annexure SS12.

[9] there was some dispute about the spelling, but that is not material.

[10] Different spelling was given by different witnesses, but that is not material.

Kylie Wykes v Wilmar Sugar Pty Ltd [2025] FWC 1811

At a glance

Court

Decision date

Source

Judgment (223 paragraphs)

Kylie Wykes v Wilmar Sugar Pty Ltd [2025] FWC 1811 (3 July 2025)

Parties

Legislation Cited (2)

Cases Cited (5)