Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for relief from unfair dismissal - failure to check roster and attend rostered shift - valid reason for dismissal - procedural fairness afforded - factors indicate dismissal was harsh - dismissal not unfair - application dismissed

[1] Matthew Kahler was employed by Aspire Community Solutions Pty Ltd (Aspire) as a casual Disability and Mental Health Support Worker from 30 August 2024 until he was dismissed on 29 October 2025. Mr Kahler was dismissed for failing to check his roster on a Shiftcare application, which resulted in him failing to attend a rostered shift on 22 October 2025. Mr Kahler filed an unfair dismissal application on 19 November 2025. This decision concerns whether Mr Kahler was unfairly dismissed and, if necessary, what remedy should be awarded.

[2] There is no dispute, and I find for the purposes of s.396 of the FW Act that:

• Mr Kahler's application was filed within 21 days of his dismissal taking effect.
• Mr Kahler was a person protected from unfair dismissal.
  • The Small Business Fair Dismissal Code is not relevant because Aspire was not a small business at the time of Mr Kahler's dismissal.
• Mr Kahler's dismissal was not a case of genuine redundancy.

[3] I held a hearing via video on 9 March 2026. Mr Kahler provided evidence in support of his case. Aspire relied on evidence from Sophie Michael (Operations Manager), Tegan Truscott (Service Co-ordinator), and Georgina Dorrett (Director). I granted permission for Aspire to be represented by a lawyer at an earlier procedural listing.

[4] Although the parties filed many hundreds of pages of material, the relevant facts can be stated reasonably briefly and are not overly contentious.

[5] Mr Kahler did not attend a rostered shift on 2 April 2025 with a participant that requires a high degree of daily support (Participant A). Mr Kahler recorded case notes for the shift in the Shiftcare system even though he had not attended the shift. Mr Kahler did not contest that he had not committed the alleged misconduct. Mr Kahler was issued with a formal written warning on 8 April 2025.

[6] Mr Kahler failed to attend a rostered transport shift on 29 April 2025. Mr Kahler admitted that he had failed to properly read his roster during an investigation meeting on 13 May 2025. The relevant participant's mother requested that Aspire allocate a different carer due to the missed shift. Mr Kahler was not issued with a formal warning in relation to this incident because Aspire deemed that it had been a lower risk incident.

[7] Mr Kahler attended a performance review meeting on 30 April 2025. The review identified varying degrees of positive and negative feedback about Mr Kahler's performance. One of the objectives identified in the review was for Mr Kahler to check his rosters weekly.

[8] Mr Kahler arrived to provide care for Participant A at the usual time of 10:00am to 1:00pm on 22 October 2025. Mr Kahler was not aware that the usual shift time had been changed on around 13 October 2025 in the Shiftcare system because Participant A's primary carer was overseas.

[9] Mr Kahler sent an email to Ms Truscott and Aspire's rosters email address at 10:38am on 22 October 2025 requesting that Participant A's normal shift times be changed to the regular times of 10:00am to 1:00pm, and then 3:00pm to 5:00pm.

[10] Ms Michael had a phone call with Mr Kahler after she received his email. Ms Michael provided evidence that Mr Kahler became defensive when he was told that the shift time had been changed and questioned why additional steps had not been taken to advise him of the change.

[11] Aspire was able to arrange a different employee to assist Participant A from 4:30pm to 7:00pm on 22 October 2025.

[12] Mr Kahler sent an email to Aspire's rosters email account on 24 October 2025 asking for his 10:00am to 1:00pm shift on 22 October 2025 to be entered into Shiftcare so he could enter his case notes.

[13] Mr Kahler's rostered shift with Participant A on 24 October 2025 was cancelled but he worked shifts with other participants on 23, 27, and 28 October 2025.

[14] Ms Michael sent a letter to Mr Kahler on 28 October 2025 which stated Aspire was considering terminating his employment due to his failure to attend a rostered shift on 22 October 2025, following the issuing of a previous warning on 8 April 2025 for the same type of conduct. Mr Kahler was invited to show cause as to why his employment should not be terminated at a meeting on 29 October 2025. The letter indicated Mr Kahler could bring a support person to the meeting.

[15] Mr Kahler attended a meeting with Ms Michael and Ms Truscott on 29 October 2025, with his ex-wife as a support person. Ms Michael's meeting notes state Mr Kahler confirmed that he had not properly checked the roster for 22 October 2025 and questioned why he was not advised that Participant A's regular time had been changed. Mr Kahler and his ex-wife discussed and agreed on childcare arrangements that would allow Mr Kahler to work later shifts during the meeting. Ms Michael paused the meeting for around 30 minutes after hearing Mr Kahler's explanation to seek advice and to speak with Ms Dorrett. Mr Kahler was handed a termination letter when the meeting resumed.

[16] Mr Kahler accepted during the hearing that he was aware that Aspire's employees can check their rosters during paid working hours.

[17] Mr Kahler has provided evidence that he has been suffering from a variety of mental health issues for many years. However, Mr Kahler did not request any adjustments or assistance in relation to his working arrangements to deal with his mental health issues prior to being dismissed.

[18] Section 387 of the Fair Work Act 2009 (FW 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.

• [19] I am required to consider each of these factors, to the extent they are relevant to the factual circumstances before me.[1]

Was there a valid reason for dismissal related to Mr Kahler's capacity or conduct?

• [20] In order to be a valid reason, the reason for the dismissal should be "sound, defensible or well founded"[2] and should not be "capricious, fanciful, spiteful or prejudiced."[3] 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.[4]

• [21] Where a dismissal relates to an employee's conduct, the Commission must be satisfied that the conduct occurred and justified termination.[5] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.[6]

[22] I am satisfied that Mr Kahler's conduct in failing to check his rostered hours of work for 22 October 2025 and failing to attend his rostered shift provided a valid reason for dismissal. That is particularly the case given Mr Kahler's previous warning concerning the same type of conduct on 8 April 2025 and Mr Kahler's further failure to attend a transport shift on 29 April 2025.

[23] Mr Kahler's conduct on 22 October 2025 meant that Aspire had to make urgent arrangements to find care for Participant A and at a cost to the business. Given the highly regulated working environment that Aspire operates in as part of the National Disability Insurance Scheme, it is critical for Aspire to be confident that care workers will attend their rostered shifts, particularly for participants with high care needs. Mr Kahler had been put on notice that he needed to regularly check his rosters and was permitted to do this during paid working hours. I find there was a valid reason for dismissal in the circumstances.

[24] The existence of a valid reason for dismissal weighs in favour of finding Mr Kahler's dismissal was not harsh, unjust, or unreasonable.

Was Mr Kahler notified of the reason for dismissal?

• [25] Proper consideration of s.387(b) requires a finding to be made as to whether Mr Kahler "was notified of that reason." Contextually, the reference to "that reason" is the valid reason found to exist under s.387(a).[7]

• [26] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[8] and in explicit[9] and plain and clear terms.[10]

[27] I am satisfied Mr Kahler was notified of the reason for dismissal via the show cause letter dated 28 October 2025. That letter was sent before a final decision was made to dismiss Mr Kahler on 29 October 2025.

[28] I find this factor weighs in favour of finding Mr Kahler's dismissal was not harsh, unjust, or unreasonable.

Was Mr Kahler given an opportunity to respond to the reason?

[29] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee's employment.[11]

• [30] The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly.[12] Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[13]

[31] I am satisfied that Mr Kahler was provided with an opportunity to respond to the reason for dismissal during the meeting on 29 October 2025. Mr Kahler was able to prepare his response ahead of the meeting given the show cause letter he received on 28 October 2025. I am satisfied that Mr Kahler's response was considered during the pause in the meeting on 29 October 2025 and before the final decision was made to terminate his employment.

[32] I find this factor weighs in favour of finding Mr Kahler's dismissal was not harsh, unjust, or unreasonable.

Did Aspire unreasonably refuse to allow Mr Kahler to have a support person present to assist at discussions relating to the dismissal?

[33] Mr Kahler was provided with an opportunity to bring a support person to the meeting on 29 October 2025 and he took this opportunity. I find this is a neutral factor.

Was Mr Kahler warned about unsatisfactory performance before the dismissal?

[34] Mr Kahler was dismissed for misconduct as opposed to unsatisfactory performance. I consider this to be a neutral factor.

To what degree would the size of Aspire's enterprise be likely to impact on the procedures followed in effecting the dismissal?

[35] Aspire is a small business which had only 16 employees at the time of Mr Kahler's dismissal. However, I consider Aspire generally followed appropriate procedures in relation to Mr Kahler's dismissal. I consider this to be a neutral factor.

To what degree would the absence of dedicated human resource management specialists or expertise in Aspire's enterprise be likely to impact on the procedures followed in effecting the dismissal?

[36] Aspire does not have dedicated human resource specialists and expertise. However, I consider that Aspire generally followed appropriate procedures in relation to Mr Kahler's dismissal. I consider this to be a neutral factor.

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

[38] Aspire did not suggest Mr Kahler was not performing his support worker duties competently prior to his dismissal. Aspire's concerns related to the more bureaucratic requirements of the role. I consider Mr Kahler's sound level of performance as a support worker weighs in favour of finding his dismissal was harsh.

[39] Mr Kahler has been dealing with various mental health challenges for many years. Mr Kahler has recently endured a divorce and has caring responsibilities as a single parent to his children. I consider Mr Kahler's personal circumstances weigh in favour of finding his dismissal was harsh.

[40] I consider Mr Kahler was very fortunate not to be dismissed after he completed case notes for a shift that he did not attend on 2 April 2025. I consider the fact that Aspire provided Mr Kahler with an opportunity to remain employed after this conduct weighs against finding Mr Kahler's dismissal was harsh.

[41] Although Aspire has understandably relied on the warning Mr Kahler received on 8 April 2025 to demonstrate a pattern of conduct, there were significant differences between what occurred on 2 April 2025 and what occurred on 22 October 2025. Mr Kahler failed to attend work at all on 2 April 2025. Mr Kahler attended work on 22 October 2025 at his regular time. Mr Kahler had assumed without checking that he would be working his usual shift. Although I accept that was misconduct in a context whereby Mr Kahler had clearly been directed to check his roster during working hours each week, I do not consider the misconduct was of a highly serious nature. Aspire also knew Mr Kahler had attended work at the wrong time on 22 October 2025 and was ultimately able to make other caring arrangements for Participant A. It is also possible Mr Kahler would have agreed to work the later shift on 22 October 2025 if he did not have childcare commitments. I consider the lower-level severity of Mr Kahler's conduct weighs in favour of finding the dismissal was harsh.

[42] I have some sympathy for Mr Kahler's position that the change to his regular shifts with Participant A should have been discussed with him. That is particularly the case given Mr Kahler's had been working consistent shifts with Participant A for some time. I also consider that Aspire may have paid insufficient attention to Mr Kahler and his ex-wife agreeing to alter their childcare arrangements during the meeting on 29 October 2025 so that Mr Kahler could work later shifts. This flexibility demonstrated Mr Kahler's commitment to the job and to addressing Aspire's concerns. I consider these deficiencies with how Aspire handled the events leading to Mr Kahler's dismissal weigh in favour of finding Mr Kahler's dismissal was harsh.

[43] Although I do not consider Mr Kahler has deliberately done anything wrong, Mr Kahler has retained very private and confidential information about Aspire's clients after his employment ended. That occurred in circumstances where Mr Kahler had been directed to return Aspire's property in his termination letter. I consider this conduct from Mr Kahler weighs against finding his dismissal was harsh.

[44] I have made findings in relation to each matter specified in s.387 of the FW Act. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable.[14]

[45] I came very close to finding that Mr Kahler's dismissal was harsh, based on the various other factors identified above. Mr Kahler presented as a genuine and reasonable person during the hearing and I have sympathy for the circumstances he has faced. The evidence suggests Mr Kahler was committed to provide care to the participants he was assisting and no doubt that was often in quite difficult circumstances.

[46] However, I have found there was a valid reason for Mr Kahler's dismissal, and that Mr Kahler was afforded procedural fairness in relation to the dismissal. I have also found there are other factors that weigh against finding that Mr Kahler's dismissal was harsh.

[47] I find on balance that Mr Kahler's dismissal was not harsh, unjust, or unreasonable.

Ms Z Aly from Citation Legal representing Aspire.

[1] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

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

[4] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, 685.

[5] Edwards v Justice Giudice [1999] FCA 1836, [7].

[6] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

[7] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

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

[9] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

[11] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

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

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

[14] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].

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