Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Sharn Enterprise Pty Ltd ATF Kapoor Family Trust

Application for an unfair dismissal remedy - jurisdictional objections: no dismissal, Small Business Fair Dismissal Code - dismissal in accordance with s.386(1)(a) - Code not observed - s.387 criteria, termination of employment harsh, unjust, unreasonable - compensation ordered.

• [1] This decision is related to the unfair dismissal application of Ms Mellissa Bowyer (the Applicant). Ms Bowyer made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting an unfair dismissal remedy. Ms Bowyer alleged that she had been unfairly dismissed from her employment as the Centre Director at Little Ted's Childcare Centre, in Oxley, Brisbane. The Centre at the time of the events had recently been purchased by Sharn Enterprises Pty Ltd ATF Kapoor Family Trust (the Respondent/the Employer/Little Ted's/Sharn Enterprises). Mrs Reena Kapoor was a Director (together with her husband) of Sharn Entreprises that owned and operated Little Ted's Childcare. She also held the legislative position of nominated supervisor in relation to conducting a childcare business. It is also relevant to note that Mrs Kapoor held the same legislative position in terms of Mine N Yours Childcare, Coopers Plains, another childcare business which she owned and operated as a sole trader. The Respondent contended that the Applicant's employment came to an end as a result of a resignation as she alleged the Applicant had 'quit on the spot whilst at the centre'.[1] The Applicant refuted this stating that her employment was terminated by the Employer.

• [2] Conducting a childcare business occurs in a highly regulated environment. Pursuant to s.161 of the Education and Care Services National Law 2011 (Qld), approved providers operating an education and care service, which includes Little Ted's, can only operate with at least one nominated supervisor. Nominated supervisors are responsible for a variety of duties under the National Law and Regulations, such as the supervision and safety of children (pursuant to ss.165-167), and staffing (pursuant to regulations 123-128). The Australian Children's Education & Care Quality Authority describe nominated supervisors '[a]s the persons responsible for the day-to-day management of an approved service'.[2] The importance of this position, and that Mrs Kapoor was also the Employer, was set out in a prior jurisdictional decision.[3] It is relevant to emphasise again the statutory responsibilities of these positions that Mrs Kapoor held, given that she argued that the Applicant had responsibility for a range of these obligations.

• [3] A prior jurisdictional decision was released in this matter.[4] The prior jurisdictional decision also related to two other Applicants/employees (Ms Mercer and Ms Hamel). The decision determined the Respondent's initial jurisdictional objections. Those objections being; whether the Respondent was 'a small business employer', whether the Applicants had met their relevant 'minimum employment period,' and consequently whether the Applicants were permitted to pursue an unfair dismissal application.[5] The other Applicants had also filed unfair dismissal applications alleging that they had been unfairly dismissed by the same Respondent. The following conclusion was held in the jurisdictional decision, which heard these issues jointly by consent for all three applications. Ms Hamel's employment had been dismissed first of all. Following that termination of employment, the overall employee numbers for the Respondent fell below 15 and therefore the Respondent was categorised as a 'small business employer' for the other two Applicants. The relevant associated 'minimum employment period' for the Applicants was therefore six months for Ms Hamel and 12 months for Ms Mercer and Ms Bowyer as set out in the separate jurisdictional decision as follows:

"[65] Based on the reasoning set out above, none of the applications are jurisdictionally barred; they have all met the requisite minimum employment period (for Ms Hamel this period is 6 months under s.383(a) of the Act). For Ms Hamel, the Respondent will not be treated to be a 'small business employer', but for Ms Mercer and Ms Bowyer, the Respondent will be considered as a 'small business employer', subject to the Small Business Fair Dismissal Code.

[66] Therefore, in relation to all 3 of these applications (Ms Hamel, Ms Mercer, and Ms Bowyer), none of the applications are jurisdictionally barred and all are able to proceed to arbitration."

[4] The Respondent then raised two further jurisdictional objections to this application. The first was that the Applicant was not dismissed from her employment within the meaning of s.386 of the Act. The second issue that the Respondent raised was that they were a 'small business employer' and if the Applicant's dismissal was consistent with the Small Business Fair Dismissal Code (SBFDC), the dismissal therefore could not be unfair under s.385(c) of the Act. This decision provides the determination of the jurisdictional objections first. If either objection is upheld, the application cannot be progressed.

[5] If it is determined that the Applicant's employment was dismissed in accordance with s.386(1)(a) of the Act, the application will then be considered in line with the considerations in the SBFDC as after the initial dismissal of Ms Hamel, the Respondent then had fewer than 15 employees. In the instance that neither objection is upheld, the merits of the application will be considered in relation to s.387 of the Act. The Applicant submitted that she was dismissed from her employment and that the dismissal was not consistent with the SBFDC; that the Employer had not referred to or relied on the Code and that additionally, her dismissal was harsh, unjust, and unreasonable.

[6] Mrs Kapoor in this case did not refer to the SBFDC, use the checklist, or rely on the procedure in the Code in dealing with the circumstances of the end of Ms Bowyer's employment. Those circumstances and the information provided have been considered as far as possible in terms of the SBFDC on the facts of the matter. The Code has been taken into consideration given the status of the Respondent as a 'small business employer'. The jurisdictional objections are considered below.

[7] All of the three Applicants in the related matters were represented by Mr David Tuxworth. He stated he had previously operated as a 'Paid Agent' in matters before the Commission but that he was not appearing in that capacity in these matters. Mr Tuxworth stated that he was legally qualified and that he was currently employed as an employee relations adviser at a mining company but was acting for the Applicants on a pro bono basis in these matters. Mr Tuxworth had been a parent of children attending the Centre that Mrs Kapoor had bought and operated. There was some animosity between the Respondent and the Applicants' representative as a result of some prior interactions between them in endeavouring to resolve the applications. Mrs Kapoor wrote to my Chambers prior to the Hearing regarding the representative's alleged conduct and his related social media commentary. I sent correspondence back to the parties, (following the breakdown in their negotiations), which directed that separate communications between them should cease and that any further exchanges of information, should copy in my Chambers.

[8] Whilst acknowledging the threshold jurisdictional matters to be dealt with in an unfair dismissal application, Mr Tuxworth stated at the time of the Hearing (weeks after the finalisation of their employment contracts), a range of the Applicants' employment entitlements remained outstanding.

[9] The Respondent's business was represented by Mrs Reena Kapoor, an Owner of Little Ted's. In this matter it warrants noting that delays were incurred as it was extremely difficult to obtain the relevant information from Mrs Kapoor for the consideration of the jurisdictional objections and also then the merits matter. It was recognised that the Respondent was self-represented. However, the Respondent failed to fully comply with the Directions of the Commission and failed to provide responsive material and a witness statement. This was despite the Respondent being redirected on a number of occasions regarding the nature of the material that she was required to file. The absence of the relevant material was after the Respondent had been sent the relevant legislative provisions, a template for a witness statement, an outline of submissions, and documents from the Commission's website. Procedural support, and extensions of time for filing material were provided to the Respondent as a self -represented party. However this failure on the Respondent's part to provide relevant material related to the initial jurisdictional directions, the Hearing, and then the merits matter, which delayed the progress of the application.

[10] The Respondent failed to fully comply with the Directions and provided only the very limited material which is referred to below. There were two short emails that Mrs Kapoor relied on; sent on 6 February 2026 and 9 February 2026. The Respondent was repeatedly placed on notice that new material could not be presented at the Hearing. It was emphasised that this was the case for both parties; that in order to provide procedural fairness, it was necessary for them to file their case and the material that they relied on, prior to the Hearing.

• [11] Each of the three s.394 applications were heard separately. It was conceded that there was some overlap between the facts, circumstances, and material between the applications. Where this is taken into account, it is identified in this decision which relates to the circumstances of Ms Bowyer. The decisions for the other Applicants have been released.[6]

A person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

[13] The relevant extract of section 386 defines the meaning of dismissed:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[14] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[15] In accordance with s.396 of the Act, it must be determined before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and

(d) whether the dismissal was a case of genuine redundancy.

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person's dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person's employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

[17] The Small Business Fair Dismissal Code sets out:

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.

[18] The Explanatory Memorandum for the Small Business Fair Dismissal Code sets out the following regarding its implementation:

211. There will also be a Small Business Fair Dismissal Code (the Code) for businesses with fewer than 15 Employees (small business employers). The Code will set out the steps a small business employer needs to take in order for the dismissal to be fair. If an Employee of a small business employer makes an unfair dismissal claim, FWA will first determine if the Employer has complied with the Code. If so the dismissal will be considered fair. If the Employer has not complied with the Code, the claim will treated in the same way as any other unfair dismissal claim, and FWA will go on to determine whether the dismissal was harsh, unjust or unreasonable.

1545. If a person's dismissal is consistent with the Small Business Fair Dismissal Code then the dismissal will be considered fair and the other factors relating to unfair dismissal do not need to be considered. This arises because clause 396 provides that whether a dismissal is consistent with the Code is an initial matter that FWA must consider before considering the merits of the application. If the Employer has not complied with the Code, the claim will be treated the same way as any other unfair dismissal claim.

[19] If Ms Bowyer was dismissed pursuant to s.386 of the Act, for the reasons the Respondent set out after the dismissal, she would have been summarily dismissed. Regulation 1.07 of the Fair Work Regulations 2009 provides the definition for serious misconduct, stating:

(a) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(b) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an Employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the Employer's business.

(c) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the Employee, in the course of the Employee's employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault; or

(iv) sexual harassment;

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

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

Note: For the purposes of paragraph (a), the following conduct can amount to a valid reason for the dismissal:

(a) the person sexually harasses another person; and

(b) the person does so in connection with the person's employment.

[21] Furthermore, section 392 of the Act provides:

(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.

Background and Summary of Evidence and Submissions

[22] The Applicant commenced employment at Little Ted's Childcare Centre Oxley on 10 March 2015. She had worked with the children in the role of Lead Educator prior to the Ownership of the Centre being transferred to Mrs Kapoor in terms of Sharn Enterprises on 3 February 2025.

[23] From 3 February 2025, the Applicant was appointed by Mrs Kapoor as the Centre Director. Mrs Kapoor affirmed the change in employment position of Ms Bowyer after the business transfer occurred and the previous Centre Director ('Sam') resigned from the Centre Director position. The Applicant in the circumstances had agreed to assist and undertake the role but was transparent at all times, that she had no experience in the role.

[24] The Applicant stated that her pay in this new role remained at the same rate as when she was Lead Educator ($34.12 per hour). It was submitted by the Applicant that in her final pay, for one week of wages, that $41.02 per hour as the rate of pay was accepted by the Respondent. Therefore, the Applicant stated that she was then in receipt of the correct payment rate for a Centre Director under the Award.

[25] The working relationship between the Applicant as the Centre Director and the Owner Mrs Kapoor, was set out by the Applicant as follows:

"During my time as Centre Director, I was expected to manage all day-to-day operations of the Centre including rostering. However ultimate authority for running the business was that of Reena Kapoor as the business owner and approved provider under the Childcare Regulations"[7]

[26] The Applicant set out that no performance issues were raised with her by Mrs Kapoor when she was undertaking the role of Centre Director. Further she stated that, contrary to her understanding that she would receive training in the role, this did not occur that:

"I was afforded minimal support in undertaking the administrative duties of the centre. I had made the new owner aware of my minimal experience in administrative duties, and she undertook to provide me with training."[8]

• [27] After purchasing the Centre and appointing the Applicant into the new role, Mrs Kapoor travelled overseas between either 4 or 5 February 2025 to 24 or 25 February 2025.[9] In those circumstances, the Applicant was left unsupported in this new role and with no ability to receive any training from Mrs Kapoor for the new duties.

[28] In an unsigned statement in the body of an email to my Chambers on 6 February 2026, Mrs Kapoor argued that the Applicant had misrepresented her skills and qualifications for the Centre Director role:

"The employee was appointed as centre manager after presenting false or misleading information during the recruitment process on 3rd February 2025. After assuming the role, the employee made several errors and poor decisions, which led to financial loss and operational difficulties for the business."

[29] After I directed the Respondent to file the information she sought to rely on in a witness statement and submissions, Mrs Kapoor provided a further unsigned statement in the body of an email on 9 February 2026 regarding the Applicant's lack of qualifications and alleged performance issues:

"To support my case that Mellissa Bowyer did lie to hold centre managers position and not able to get anything-neither was able to deliver the legal manner to recruit or terminate employee, not know how to handle Payroll and its legality, keeping up roster and its legality etc.

Please find attached is the letter written by Mellissa Bowyer which clearly states and her claims to be a candidate to fulfill highest position in a childcare set-up which is the Nominated Supervisor.

I am sure attached will suffice that if a person claims to be knowing a positions requirement and is granted that position on the basis-why anything that this individual holding that superior position would blame her doings on business owner - especially when I bought this business as "non-contact owner"."

[30] The letter Mrs Kapoor refers to above, in arguing that the Applicant misrepresented her ability to undertake the role of Centre Director was a record presented by Mrs Kapoor. It was based on a photograph of a document on a computer monitor, which she purported to be an application letter prepared by the Applicant. The letter includes details of work history including as a Nominated Supervisor, Lead Educator, and Educational Leader at the current Centre. The letter sets out as follows:

My name is Mellissa Bowyer, and I am writing to express my interest in a position at your childcare centre. I have worked in the early childhood education and care sector for approximately 20 years, during which time I have held a variety of roles that have contributed to my strong knowledge of the National Quality Framework and a deep understanding of children's development and learning.

For the past 10 years, I have been employed at my current service, where I have had the privilege of working as the Nominated Supervisor. In this role, I have been responsible for overseeing the daily operations of the centre, ensuring compliance with regulations, and supporting a team of educators to deliver high-quality early learning experiences. I have also worked as a Lead Educator and Educational Leader, mentoring staff, guiding curriculum planning, and fostering a collaborative and reflective learning culture across the team.

I am now seeking a new opportunity that is closer to home, where I can continue to use my leadership skills to support and inspire educators in their implementation of rich and meaningful educational programs. I am passionate about mentoring others and promoting best practices in early childhood education to ensure every child receives the highest standard of care and learning.

I would welcome the opportunity to contribute to a centre that values professional growth, collaboration, and quality outcomes for children and families. Please feel free to contact me should you require any further information or to arrange a time to meet.

[31] The evidence of the parties in relation to this letter is further considered below.

[32] The Respondent on 15 May 2025 (after the Applicant was no longer working at the Centre), provided the following correspondence to the parents and guardians of the children at the Centre. The communication to the parents and guardians addressed the Applicant's departure from the Centre in the following terms, which improperly made reference to suggestions of money handling breaches by the Applicant:

I am writing to inform you that, due to significant breaches, I have made the decision to ask Mel to leave center. While I will not delve into the of this decision, I must emphasize that it is my responsibility to manage all aspects of the center and ensure the safety of every child under my care. You entrust us with little ones, and while the teams shares this responsibility, it falls on me to investigate any breaches and report them to government agencies, such as the Department of Education and Centrelink.

If have received any correspondence from Centrelink, please inform me so I can resolve any related issues- if any extra money has been taken off or account doesn't seem correct then please let me know as I am not too sure where money has gone!"

[33] The Employer had not raised any of these issues with the Applicant. There is also no evidence that the Applicant engaged in the conduct being suggested by the Respondent in this communication to parents and guardians. This correspondence is highly prejudicial to the Applicant, particularly in circumstances where she had been forced into securing alternative employment. For the Respondent to make these misleading, baseless, and controversial remarks to the parents and guardians of the children she was engaged with, was an act by the Employer clearly designed to cause unwarranted damage to the professional standing of the Applicant. This is particularly in circumstances where the Respondent had not notified the Applicant prior to the end of employment of any of these suggested issues that formed part of this communication. The Applicant had not been provided any evidence of the alleged conduct.

[34] Mrs Kapoor without providing any counselling, warnings, or performance documentation indicated that the Applicant underperformed in this particular role and it was her responsibility as the Owner then to remedy a lot of the issues. There was no evidence presented by the Respondent in relation to errors or these alleged performance issues.

[35] The Applicant provided evidence before the Commission regarding her involvement and Mrs Kapoor's role in the dismissal of Ms Gail Mercer. Ms Mercer had been a long term colleague of Ms Bowyer. Ms Mercer had been diagnosed with a form of cancer and required treatment. Ms Mercer and the Applicant, in her capacity as Centre Director, agreed that she could use personal leave to seek her cancer treatment, including chemotherapy. The Applicant put evidence before the Commission, in terms of a signed witness statement, that Mrs Kapoor expressed that "she didn't think that Gail's ongoing absences were working for the business." Mrs Kapoor affirmed that she was aware that Ms Mercer was undertaking chemotherapy. Further Mrs Kapoor did not deny that Ms Mercer had the relevant accrued entitlements to use for the purposes of receiving the chemotherapy treatment.

[36] On 12 May 2025, the Respondent became aware that Ms Mercer had travelled to Canberra in April. The Applicant stated that Mrs Kapoor was agitated as she thought Ms Mercer was absent for cancer treatment, not for travel. Ms Mercer had accessed approved annual leave for this period. There was no evidence that Mrs Kapoor undertook any discussions or consultations with Ms Mercer regarding the purpose of her leave or the extent of her remaining chemotherapy treatment. If in the circumstances, the Employer was concerned that the Centre may not have been able to accommodate Ms Mercer's required leave and maintain the relevant statutory ratio of staff to children, she was obligated to discuss the situation with Ms Mercer. There was an absence from the Employer of any of the required discussions with Ms Mercer and/or Ms Bowyer prior to Mrs Kapoor requiring Ms Bowyer to undertake Ms Mercer's termination of employment. The decisions for the termination of employees were clearly the responsibility of the Employer.

[37] On 12 May 2025, the Applicant stated that Mrs Kapoor instructed her to draft a termination letter for Mrs Mercer's employment. The Applicant further stated that she advised Mrs Kapoor that Ms Mercer had two weeks chemotherapy remaining, before returning to normal work hours. The Applicant stated that Mrs Kapoor asked her to send the letter and to not reference Ms Mercer's health.

[38] The Applicant annexed the email correspondence from herself to Mrs Kapoor, to her witness statement. She attached the draft letter of termination that was to be sent to Ms Mercer. The Applicant stated that as directed, she forwarded the termination letter to Mrs Kapoor who responded with "Ok - thanks." Mrs Kapoor did not provide any evidence contrary to this version of events, however she stated that the Applicant, in substance, was the person who dismissed Ms Mercer.

[39] On 15 May 2025, Mrs Kapoor and the Applicant discussed how the Centre was to communicate the decision to terminate Ms Mercer's employment to the Centre's parents. The Applicant stated in response she said words to the effect of "you will never get me to support the reasons for Gail's termination".

[40] The Applicant then stated Mrs Kapoor asked her if she wished to continue in her position. The Applicant stated "no". The Applicant's evidence was that she understood it to be a reference to the role as Centre Director as opposed to her employment at the Centre in general. The Applicant stated that she understood this exchange in light of a previous discussion where Mrs Kapoor offered the Applicant the ability to return to the role of Lead Educator. Mrs Kapoor in her email to Chambers dated 6 February 2026, acknowledged that she had offered Ms Bowyer the ability to step down from the Centre Director role and resume as Lead Educator:

"Acknowledgement of my offer to step down from centre manager and resume duties as Educational Leader."

[41] After the exchange, the Applicant stated that Mrs Kapoor asked her to leave the Centre. The Applicant provided evidence that she asked Mrs Kapoor whether she was terminating her employment and that Mrs Kapoor said "Yes. Leave." The Applicant requested a termination letter and information regarding her unused entitlements. The Applicant stated Mrs Kapoor said, "You will get them."

[42] The Applicant, as part of her evidence, included the correspondence from Mrs Kapoor to parents and guardians at the Centre on 15 May 2025 (as above, extracted for convenience) stating that "I am writing to inform you that, due to significant breaches, I have made the decision to ask Mel to leave center. While I will not delve into the of this decision, I must emphasize that it is my responsibility to manage all aspects of the center and ensure the safety of every child..."

[43] The Applicant then put into evidence a series of relevant text message exchanges that occurred between herself and Mrs Kapoor after the alleged dismissal on 15 May 2025:

Hi Reena, The only thing I have that belongs to the centre is the Keys, and when I receive my termination letter, I will return them as until I receive that letter, I am still employed. As far as Maggie's keys go, they were given to Chantelle. The rest of the centre keys are on the shelf under the desk...

What termination you are stating? I did offer you to continue or step down -but you said you rather quit which then I let you.

No. I asked you if you were firing me and you said yes, leave my centre.

Dob you I claiming that I didn't get you to rethink about the situation and your position? Lie is not ok.

[Screenshot of Correspondence to Parents as set out above on 15 May 2025]

That's what I needed - now legally you will have to provide me all information as who has sent you this?!? I wanted to find out who is leaking infor when I haven't released

This family will now has a lot of legal issues that I will ensure to engage into -as this is confidentiality breach and you did quit on Friday -and upon confirming few misconduct by you then I decided to official remove

You released this information when you posted it to the parent. I am not legally required to tell you how I got the information. So, as previously stated, I want my termination letter dated for the date I receive it.

[44] The Applicant stated that she gave information to Mrs Kapoor, including the location of the keys and the passwords for various systems (such as the Centre email address and Facebook account).

[45] The Applicant was not paid wages in lieu of notice. The Applicant stated that on 22 July 2025, which was 10 weeks after the cessation of her employment, that she was paid her annual leave and long service leave entitlements. However, the Applicant stated that this payment occurred at the incorrect $34.12 per hour rate.

[46] The first jurisdictional objection that must be determined is whether the Applicant was dismissed within the meaning of s.386 of the Act.

[47] The Applicant's representative submitted that the employment was terminated on the Respondent's initiative within the meaning of s.386(1)(a) of the Act. The Applicant's representative emphasised four pieces of evidence.

[48] The first was the email Mrs Kapoor sent to Centre parents where she stated that "due to significant breaches, I have made the decision to ask Mel to leave the centre." The second was the Applicant's witness statement stating that she requested verbal confirmation from Mrs Kapoor as to her termination and her comment saying "Yes, leave." The third was the text messages from the Applicant requesting Mrs Kapoor provide a letter of termination. The final aspect was what the Applicant referred to as contradictory text messages from Mrs Kapoor stating: "and you did quit on Friday - and upon confirming few misconduct by you then I decided to officially remove."

• [49] In the alternative, the Applicant submitted that the incident, should it be found to be a resignation, would fall into a 'heat of the moment' resignation. The Applicant relied on the Full Bench decision in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[10]:

"[47] Having regard to the above authorities and the bifurcation in the definition of "dismissal" established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the "heat of the moment" or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although "jostling" by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is "forced" by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer's conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element."

[50] The Respondent did not provide any written or oral submissions on this issue; it was merely stated that the Applicant had left.

• [51] The determination of whether an employee resigned was clarified in the case of Koutalis v Pollett:[11]

"[43] The question whether a resignation did or did not occur does not depend upon the parties' subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position immediately after Mr Pollett left the Koutalis' business' premises on the morning of 5 May 2014, based on what each party to the conversation had said or done, in light of the surrounding circumstances ..."[12]

[52] The analysis regarding 'termination at the initiative of the employer' for the purpose of s.386(1)(a) of the Act, requires an assessment to be conducted by reference to the cessation of the employment relationship. Two conditions must be met for a 'termination at the initiative of the employer' to occur:

(a) the actions of the Employer 'directly and consequentially' results in the termination of employment; and

• (b) if the employer did not take this action, then the employee would have remained employed.[13]

• [53] The approach of the Full Bench of the Australian Industrial Relations Commission in O'Meara v Stanley Works Pty Ltd (O'Meara)[14] in relation to the examination of the full context of the statements of both parties needs to also assess the resultant actions, relevant to the consideration of s.386(1) of the Act. The Full Bench examined these issues in the following case:

"[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

'[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.'"[15] (emphasis added).

• [54] The conduct of both parties has been examined. Further to this point, in determining whether a termination of employment occurred, the Federal Court in Alouani-Roby v National Rugby League Ltd,[16] stated that this requires an evaluation of all of the evidence in order to determine what caused the termination and clarified that:

"in order to determine whether an employee has been terminated at the initiative of the employer, there must be intent (which requires an assessment of the employer's state of mind), or there must be, objectively, the probability that termination would result by virtue of the employer's conduct."[17]

[55] The parties were at odds with the outcome of the conversation that occurred on 15 May 2025, however the written evidence supports the Applicant's position; that is, that the Respondent dismissed the Applicant from her employment. The Applicant's evidence on the exchange that occurred is preferred.

• [56] Mrs Kapoor's text messages to the Applicant, are contradictory in relation to the conversation of 15 May 2025, for example she firstly states in relation to the Applicant's reference to returning keys upon receipt of a termination letter -ok thanks- but then changes this later to query -what termination the Applicant is talking about. Later, in a message, Mrs Kapoor stated that the Applicant quit and then said that after confirming alleged misconduct that she, being Mrs Kapoor, was officially removing the Applicant. The Respondent's messages are difficult to reconcile with one another; however if taken in a chronological order, even if the Applicant did quit during the oral conversation, this is contrary to Mrs Kapoor's actions of dismissing her by officially removing her. The dismissal is further demonstrated by the Respondent's following actions; Mrs Kapoor in correspondence to the parents and guardians at the Centre, stated: "I am writing to inform you that, due to significant breaches, I have made the decision to ask Mel to leave center. While I will not delve into the of this decision, I must emphasize that it is my responsibility to manage all aspects of the center and ensure the safety of every child...".[18] The email was sent on the day of the above conversation and therefore is contemporaneous evidence of the situation on that day. Mrs Kapoor indicated, through correspondence to the parents and guardians, that she had dismissed the Applicant, rather than it being an act of resignation. She explicitly stated that she made the decision to ask the Applicant to leave the Centre. Therefore, taking into account all of the circumstances, including the actions before the termination, the issues involved, and the respective conduct of both parties as per Pawel,[19] the Applicant was dismissed pursuant to s.386(1)(a) of the Act with immediate effect by the Respondent on 15 May 2025. Consequently, this jurisdictional objection was not upheld. The Applicant's employment was dismissed by the Respondent.

Jurisdictional Objection - Small Business Fair Dismissal Code

[57] The Small Business Fair Dismissal Code (SBFDC), restated for convenience, is as follows:

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."

[58] From the evidence, the Applicant was not provided with any reasons for the dismissal, was not afforded a notice period, and was provided with no prior warnings by the Respondent. Consequently, the Respondent summarily dismissed the Applicant's employment.

[59] The Applicant submitted that the Respondent did not demonstrate that Mrs Kapoor had reasonable grounds to hold the belief that any conduct of the Applicant was sufficiently serious to justify summary dismissal.

• [60] In the circumstances of the Respondent's absence of any reference to the Code, 'reasonable grounds', or the associated procedure, the conclusion that the Respondent held a belief on reasonable grounds at the time of termination, was not demonstrated against the SBFDC tests as set out in the Full Bench decision of Pinawin v Domingo (Pinawin).[20]

• [61] In Pinawin, the Full Bench explained the test to be applied for summary dismissal under the SBFDC as follows:[21]

"[29] There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee's conduct was sufficiently serious to justify immediate dismissal. Secondly, it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.

[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned."

• [62] In, Narong Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Cafe[22] the difference between a consideration of s.387 and the SBFDC was stated:

**"**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."

• [63] The implication of an immediate dismissal in relation to a consideration of the SBFDC was further considered in Harley v Rosecrest Asset Pty Ltd T/A Can Do International:[23]

"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."

[64] The first step in assessing whether the termination of employment was undertaken in accordance with the Code, in accordance with Pinawin, requires that "at the time of dismissal, the employer held a belief that the employee's conduct was sufficiently serious to justify immediate dismissal", and the second step requires "whether that belief was based on reasonable grounds." These will be considered in turn.

• [65] Further, the following extract from the case authority of Pinawin[24] describes the relation to the SBFDC statutory test that needs to be applied in relation to a termination of employment, and its assessment:

"Normally in order to hold a belief on reasonable grounds it will be necessary to have a discussion with the Employee about the perceived serious misconduct and pay regard to the explanations and views given by the Employee."

[66] No such discussion occurred in this matter.

[67] The Respondent accused the Applicant of obtaining the role as Centre Director by alleging that the Applicant had presented false information. The Respondent further stated that once she did obtain the role, that she made errors and poor decisions leading to financial loss and operational difficulties. These two references will be considered as the Respondent's belief of the Applicant's conduct being sufficiently serious to justify immediate dismissal.

• [68] As per the SBFDC, "serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures". Regulation 1.07 of the Fair Work Regulations 2009 (Cth) defines serious misconduct as "wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment", or "conduct that causes serious and imminent risk to the health and safety of a person; or to the reputation, viability or profitability of the employer's business."[25] Serious misconduct also includes a "refusal to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment."[26]

[69] The Respondent alleged that the Applicant committed work related errors and made poor decisions. However, no evidence was presented to indicate that any of these alleged performance issues occurred or could be considered to be serious misconduct.

[70] In relation to the other claim of the Respondent, that the Applicant presented false information to obtain the Centre Director role, this may be considered as serious misconduct. However, there is no evidence that the Applicant misrepresented her position in relation to the Centre Director role. Mrs Kapoor had sent correspondence that "I decided to take [Ms Bowyer] onboard as NS without hesitation. She is excellent with children and mature. Office tasks and NS can be learned, and I've spent significant time teaching her. With training and patience, she will become a great leader for this centre, bringing positive changes through her experience." This is evidence that Mrs Kapoor had knowledge that Ms Bowyer did not have all of the past experience to be Centre Director, but she knew this and intended to train her in the role.

[71] The Code has been addressed in the context of the Respondent being a 'small business employer'. However in doing so it is clear that for the reasons outlined above, the Respondent did not comply with the SBFDC. The Respondent failed to provide any evidence as to what serious misconduct, she held as a 'reasonable belief' that the Applicant had engaged in to rely on, in summarily dismissing the Applicant. A determination that the Respondent held a belief on reasonable grounds cannot be made out on the material before the Commission. Given the jurisdictional objection in relation to the application of the SBFDC has not been upheld, it is necessary to consider the merits of the dismissal pursuant to s.387 below.

[72] The Applicant, having been employed for more than 10 years had met the minimum employment period of one year, and it is an agreed fact that her application was filed within the 21-day legislative time frame. The matter was also not a case of genuine redundancy. The Applicant was engaged pursuant to the Children's Services Award 2010. The Applicant was therefore protected by the unfair dismissal provisions.

[73] The Applicant submitted that there was no valid reason for termination. The Applicant submitted that she was not notified of any reason for dismissal. Further given there was no procedurally fair process of notifying the Applicant of the reasons for termination; the Applicant's representative submitted that there was no opportunity for the Applicant to respond and therefore no opportunity for the Applicant to have a support person. There was also no evidence of any prior warnings for any performance issues and no evidence of the breaches or performance issues the Employer refers to in the communication to parents and guardians of the Centre. The Respondent's submissions in relation to s.387 were limited. The arguments of the parties are set out below.

• [74] In assessing whether there was a valid reason for the Applicant's dismissal, the reason must be 'sound, defensible or well founded.'[27]A reason which is 'capricious, fanciful, spiteful or prejudiced' cannot be a valid reason.[28] The onus is on the Respondent, in the current matter, to discharge the conduct that there was a valid reason for dismissal, on the balance of probabilities, in accordance with the principle established in Briginshaw v Briginshaw[29]:

"The standard of proof remains the balance of probabilities but 'the nature of the issue necessarily affects the process by which reasonable satisfaction is attained' and such satisfaction 'should not be produced by inexact proofs, indefinite testimony, or indirect inferences' ..."

[75] The Applicant firstly submitted that there was no valid reason for the dismissal. The Applicant also submitted that she had indicated to Mrs Kapoor that she disagreed with the dismissal of Ms Mercer, but that it was reasonable for her to voice her disagreement.

[76] The material Mrs Kapoor put before the Commission regarding the reason for dismissal was confined to two unsigned statements in the body of emails and should be weighed accordingly. Mrs Kapoor, in addition to the 9 February 2026 email above, stated on 6 February 2026:

This document details the key steps and considerations regarding the case involving an employee who allegedly misrepresented her qualifications to secure the position of centre manager, subsequently engaging in actions constituting mismanagement and resulting in business losses. The approach described herein is intended to adhere to the principles of Australian employment law and accepted business practices.

• The employee was appointed as centre manager after presenting false or misleading information during the recruitment process on 3rd February 2025.
• After assuming the role, the employee made several errors and poor decisions, which led to financial loss and operational difficulties for the business."

[77] This email was followed by a list of issues the Respondent stated that she could provide evidence of; but failed to do so, and then a list of issues that she was seeking from Ms Bowyer. Whilst a redirection was provided to Ms Bowyer to provide information as sought by the Respondent, the Respondent failed to provide additional responsive material in relation to her case that could be relied on.

[78] Only limited material was filed by the Respondent, as above, only two short unsigned emails sent by Mrs Kapoor dated on 6 and 9 February 2026 were sought to be relied on. The Respondent's alleged reasons for dismissal relate to the qualifications of the Applicant which she alleged were falsely presented for the Centre Director role. The Respondent also referred to, in a very confined and general manner, a reference to several errors and poor decisions without, on her case, providing any specific details in her submissions at the Hearing or in relation to the information conveyed to the Applicant prior to the dismissal.

[79] The Applicant submitted that the Respondent did not present any evidence to support the allegations as made.

[80] Mrs Kapoor referred to a letter she suggested was written by the Applicant in applying for the Centre Director position. This letter was filed by Mrs Kapoor in the form of a photograph of a document on a computer monitor (set out above). The Applicant disputed that she presented the letter to Mrs Kapoor in making her application for the Centre Director position. The Applicant denied that she held out the skill and ability to undertake the role of Centre Director. Her evidence was that she was transparent with the Employer that she was willing to step into the role to help out, given the resignation of Sam, who had been undertaking this role. The Applicant stated that she made it clear to Mrs Kapoor that she did not have experience in this role but hoped to learn quickly. In light of the contradictory statements made by the Applicant and the Respondent in relation to this document it must be weighed accordingly.

[81] In addition, the Applicant set out that the argument by the Employer; that the termination of her employment related to performance issues had not been notified to her, and she had been denied an opportunity to respond to this prior to her termination of employment. In fact, the Applicant had also not received, during her period of employment as Centre Director, any information from Mrs Kapoor regarding performance issues on her part. Further, the documentation sent to the parents and guardians at the Centre, confirming the Applicant's appointment in the role indicated that the Applicant would need to be trained in the role. The evidence of the Applicant is preferred; the Applicant was clear to the Respondent that she had not undertaken any work in this role of Centre Director but was willing to undertake the role to assist the Respondent given the circumstances. The Employer was aware that the Applicant had been working in the Educator role for the period employed by the Respondent prior to Mrs Kapoor taking over the Centre. There was no evidence of misrepresentation on behalf of the Applicant for the Centre Director role.

[82] Ms Bowyer had held out in taking on the position of Centre Director, that she did not have experience in this role, but given that the person who was anticipated to continue in this role when Mrs Kapoor bought the business had resigned, she indicated she would step up and endeavour to assist in the role. Her evidence at the Hearing was that she had not applied for the position, but that she was asked by Mrs Kapoor if she would be interested in undertaking the role. Mrs Kapoor in correspondence gave evidence that she was assisting Ms Bowyer in the training for this role. This being an email Mrs Kapoor sent to parents and guardians at the Centre:

"Sam announced her resignation a day prior, with Sam and Gavin stating that Mel had agreed to assume the role of NS. Sam stated that Mel has all experience to run the office and become the NS-that was absolute lie. I couldn't interview Mel or find another NS and office staff. After meeting Mel a few times, I decided to take her onboard as NS without hesitation. She is excellent with children and mature. Office tasks and NS can be learned, and I've spent significant time teaching her. With training and patience, she will become a great leader for this centre, bringing positive changes through her experience. So, I see it as blessings in disguise! My decision to not hire new staff members and instead rely on experienced personnel for the benefit of the children does not reflect incompetence. Hiring a new NS would be great for a new centre owner - instead I chose to keep Mel. Few mistakes are made during learning period over past weeks and hoping not so much moving on forwards - I am sure this centre will thrive in all manner!" (emphasis added)

[83] The abbreviation of 'NS' as referred to above relates to the role of 'nominated supervisor', as detailed above. Mrs Kapoor's argument of the Applicant presenting that she held the necessary skill and experience to undertake this new role contradicts the Applicant's statement and the facts and circumstances that the Applicant had been working in the Lead Educator role prior to taking on this role. Further, Mrs Kapoor's argument contradicted the email she sent to the parents and guardians at the Centre whereby Mrs Kapoor indicated that Ms Bowyer would be trained and that there would be a learning period for this where it was acknowledged that mistakes may be made. The Applicant's evidence regarding that document referred to by the Respondent is preferred. That is, it was a letter prepared by the Applicant in relation to possible future roles and was not a document that had been prepared by the Applicant for the purposes of being appointed to the role of Centre Director by Mrs Kapoor.

[84] The Employer also in presenting an argument that the Applicant had made a series of performance issues such as that she had not correctly notified Ms Mercer's personal leave in the rosters which the Employer stated prevented the proper payment of Ms Mercer for her personal leave, was not substantiated by any copies of rosters or documents reflecting the alleged performance errors.

[85] During the Hearing, Ms Bowyer was questioned in relation to her actions with the approval of timesheets. She provided evidence that at one stage, Mrs Kapoor had generally raised with her that there were issues with the approval of timesheets, but Mrs Kapoor at all held control of approval and payments in relation to the timesheets. Ms Bowyer's dealing with the payroll system was only in so far as the preparation of rosters and referral of timesheets.

[86] Whilst Mrs Kapoor held out that she would provide Ms Bowyer with training in her new role as Centre Director, Mrs Kapoor actually went overseas soon after Ms Bowyer commenced in the new position for a period of around three weeks. Ms Bowyer clearly endeavoured to meet the obligations of the role. There was no evidence put before the Commission of the Applicant experiencing performance issues as alleged by the Respondent. That is there was no evidence of the Respondent's allegations that the Applicant 'made several errors and poor decisions'.

[87] The Respondent put no evidence before the Commission that could substantiate the allegations indicated as the reason for the dismissal. Accordingly, the determination is that there was no valid reason to terminate the Applicant's employment. This finding is in favour of the Applicant.

Section 387(b) - Whether the Applicant was notified of that reason

• [88] The consideration of s.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 to the valid reason found to exist under s.387(a).[30]

• [89] As set out above, the Respondent did not have a valid reason to terminate the Applicant's employment. Section 387(b) contemplates an Applicant being notified of a valid reason. Accordingly, if there is no valid reason, it logically follows that s.387(b) has no application because there cannot be a notification of a valid reason if the reason for termination is not valid.[31] The facts of the current matter support this. This is considered a factor that weighs in support of the Applicant.

Section 387(c) - Whether the person was given an opportunity to respond to any reason for dismissal

• [90] In Newton v Toll Transport Pty Ltd,[32] the Full Bench stated:

"[188] Section 387(c) focuses on provision of an opportunity to respond to a reason for dismissal prior to the dismissal. The valid reason for dismissal upheld by the Deputy President was not notified to Mr Newton before dismissal and he was not afforded an opportunity to respond to the assertion that he had been dishonest, misleading and had engaged in sinister conduct.

[189] The Deputy President took into account an irrelevant consideration in concluding that any unfairness was ameliorated in the Commission proceedings. Any opportunity to respond to a reason for dismissal must be afforded prior to the dismissal occurring. It was not reasonably open to the Deputy President to conclude that the failure to provide Mr Newton an opportunity to respond to the valid reason as found by the Commission was a neutral consideration. Plainly it was a matter which sounded in favour of a finding that the dismissal was harsh, unjust or unreasonable. The weight accorded to a failure to comply with s 387(c) may hinge on whether an employee was deprived of the possibility of a different outcome." (emphasis added)

[91] Given that no specific notification of a reason for termination was provided to the Applicant, there could not have been an opportunity provided to the Applicant to respond. This is similarly considered as a factor that weighs in support of the Applicant.

Section 387(d) - Unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

• [92] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.[33]

[93] There was no evidence before the Commission regarding any refusal to have a support person, but that is only because there was no proper procedure in terms of the notification of the reason or the opportunity to respond. Therefore, given there was no proper meeting, no support person was involved. Mrs Kapoor did not undertake any discussion regarding the reason for termination and inherent to that, Mrs Kapoor therefore did not allow Ms Bowyer to have a support person present at any discussion as no notification of the reason for termination or a discussion in that regard occurred. This is considered as a factor that is in favour of the Applicant given the lack of a procedure in relation to the termination of employment.

Section 387(e) - If the dismissal related to unsatisfactory performance by the Applicant--whether the Applicant had been warned about that unsatisfactory performance before the dismissal

• [94] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the employee, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal.[34] Unsatisfactory performance is more likely to relate to the employee's capacity to do the job, than their conduct.[35]

[95] The Respondent argued that Ms Bowyer falsified her experience to undertake the Centre Director role as a reason to justify the Applicant's dismissal. The Respondent did not provide any evidence to support this allegation. It was a matter of record that the Applicant was working in a Lead Educator role at the Centre prior to taking on the Centre Director role. The Respondent also characterised part of the reason for dismissal as poor performance ('errors and poor decisions'). Again, however there was no evidence that the Respondent had raised these issues with the Applicant in terms of a counselling or warning to bring to them to the Applicant's attention that they were performance issues and that her job was in jeopardy.

Section 387(f) and (g) - 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 the absence of dedicated human resource management specialists or expertise in the enterprise

• [96] These criteria consider whether there was an absence of a fair termination procedure being afforded by the Respondent to the Applicant; can be argued to be mitigated by the size of the Employer's enterprise and the absence of dedicated human resource management specialists or expertise in the enterprise. In the current circumstances, the Employer was defined on its number of employees as a 'small business employer' and without having the assistance of the specialists providing guidance or to assist the process. Whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal.[36] Further, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account 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.[37]

• [97] As set out above, the Respondent, after the dismissal of Ms Hamel, was on the numbers of employees employed by the business considered to be a 'small business employer'. It is also recognised that the Respondent, as the Director of the company, had a large range of duties and responsibilities in running the business. However, the factors in ss.387(f)-(g) of the Act cannot be used as a way to shield a business from reasonable scrutiny in relation to providing a procedurally fair process. [38] Similarly, the size of an Employer's business cannot be a significant mitigating consideration when dismissing an employee in a process that is "devoid of any fairness."[39] Given the Respondent's conduct in terminating the Applicant's employment on the basis of unsubstantiated allegations, the Respondent cannot claim the size of the business and absence of human resource specialists as a mitigating factor and as reasons she did not follow a proper process. The procedural failings in the dismissal of the Applicant were not minor and were unacceptable. Attributing mitigation for the Employer's lack of procedural fairness to the Applicant on the basis of the factors presented in these criteria should also not occur given that the Employer's further unfair conduct to the Applicant is reinforced when the Employer sent the significantly improper correspondence to the parents and guardian informing them of the dismissal of the Applicant's employment. This was clearly aimed at causing damage to the Applicant's professional standing. For this reason, these factors weigh against the Respondent.

[98] Mr Tuxworth submitted on behalf of the Applicant, that the Commission should also take into account that the Applicant had over 10 years of unblemished service at Little Ted's. Her unblemished service was not objected to by the Respondent.

• [99] As summarised in Stewart v University of Melbourne, a dismissal may be unfair in the following ways_:[40]_

• Harsh: because of its consequences for the employee (personal and economic) or because dismissal was a disproportionate response to the gravity of the conduct or behaviour;

• Unjust: because the employee did not engage in the conduct or behaviour;

• Unreasonable: because it was decided on inferences that could not reasonably have been drawn from the material before the employer.

[100] As set out above, the Respondent did not have a valid reason for terminating the Applicant's employment. In addition, based on the reasons provided, there is an unfairness in the Applicant's dismissal based on the fact that no procedurally fair process was followed in relation to the dismissal. The Applicant's dismissal was harsh in circumstances where payment of the Applicant's entitlements was significantly delayed. Further, it was harsh in circumstances where, after the termination of employment, the Respondent had sent false and damaging information to the parents and guardians, that may have impacted on her ability to gain further employment. In addition, the Applicant's dismissal was unjust given that she was summarily dismissed after an unclear exchange was held with the Owner of the Employer's business. No evidence was provided to establish the allegations the Respondent made. It was unreasonable also, as no proper process was followed by the Respondent in relation to the dismissal. The Applicant's dismissal, for all of the above reasons, was harsh, unjust, and unreasonable, and the Applicant is entitled to an unfair dismissal remedy.

[101] Having found that the Applicant was protected from unfair dismissal, and that her dismissal was not for a valid reason and was harsh, unjust and unreasonable it is necessary to consider what, if any, remedy should be granted to her.

[102] Section 390(3) of the Act provides that the Commission must not order the payment of compensation unless it is satisfied both that reinstatement of the person is not appropriate, and that it considers an order for the payment of compensation to be appropriate in all the circumstances of the case.

• [103] The Full Bench Decision of Nguyen established that reinstatement might be inappropriate in a whole range of circumstances,[41] including where there has been a loss of trust and confidence in the employment relationship.[42]

[104] Given the parties' allegations in preparation for, and during the Hearing, it is clear that the relationship between the parties is incapable of restoring a productive working relationship with trust and confidence The Applicant also did not seek reinstatement, and in all of the circumstances, reinstatement is not an appropriate remedy.

• [105] Given that reinstatement is not appropriate in the circumstances, it is necessary to assess whether an amount of compensation should be awarded. In determining whether to award compensation, and the amount of compensation that should be awarded, the various considerations under s.392(2) must be taken into account. The Sprigg[43] formula provides the authoritative method of assessing compensation to be awarded. The Sprigg formula has been affirmed by several Full Bench decisions of the Commission.[44] The formula considers the following.

Section 392(2)(a) - the effect of the order on the viability of the employer's enterprise

[106] The originally set Directions sought submissions from the parties. The Directions included references to s.392 of the Act. The parties did not provide submissions with respect to this criteria.

[107] It is noted, that the Respondent in this application was a 'small business employer' within the meaning under the Act. However, in addition to this Centre, Mrs Kapoor operates another Childcare Centre and no information was provided that the order would effect the viability. This is a neutral consideration in the circumstances.

Section 392(2)(b) - the length of the person's service with the employer

[108] As determined in the previous jurisdictional decision, the Applicant had been employed by the Respondent for over 10 years. This is a significant period of employment. The Applicant submitted that she had an unblemished record at Little Ted's and there was no evidence to the contrary. Therefore, this is considered to be a factor weighing in favour of a higher consideration of compensation.

Section 392(2)(c) - the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[109] The Applicant submitted that she intended to continue working at Little Ted's until at least the end of 2025. It was submitted that she was regularly working 37.5 hours per week. It was submitted that apart from her final one week of wages where it was amended, that the Applicant was incorrectly paid and that she should have been paid $6.90 more per hour as a Centre Director, rather than the pay as a Lead Educator. The Applicant submitted that her correct rate of pay was $41.02 per hour for a Centre Director.

Section 392(2)(d) - the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; s.392(2)(e) the amount of any renumeration earned by the person from employment of other work during the period between the dismissal and the making of the order for compensation; and s.392(2)(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

[110] The Applicant submitted that 5 weeks and 1 day after her dismissal date she found new employment as a Lead Educator working 37.5 hours per week, for a rate $3.30 per hour less than what she would have been paid as a Centre Director at Little Ted's. That period also covered her notice period. I am satisfied that the Applicant attempted to mitigate her loss by seeking alternative employment and was successful in doing so. It is important to note that the Applicant originally wanted to accept returning to the role of Lead Educator with the Respondent. At the time of the dismissal, the Applicant thought this return to her role is what she was accepting during the final exchange with the Respondent, which then ultimately resulted in her dismissal.

Section 392(2)(g) - any other matter that the FWC considers relevant

[111] The Applicant stated that she did not receive payment in lieu of notice, and that her annual and long service leave entitlements were paid 10 weeks after the dismissal (and which the Applicant stated was paid at the incorrect lower rate). It is acknowledged that the Applicant was willing to accept going back to a Lead Educator role rather than as a Centre Director. However it was clear that at the time of dismissal, she was terminated by the Respondent from her role as Centre Director; accordingly, the rate used in the calculation of compensation is the hourly rate for a Centre Director under the Award ($41.02 per hour). It is noted that the Applicant's representative also emphasised that during the period of employment as Centre Director, she was not paid the correct rate, but at the same rate as when she was Lead Educator ($34.12 per hour). The Applicant's representative sought a reconciliation of the underpayment in terms of the calculation for compensation. It is noted that the unfair dismissal jurisdiction does not accommodate the correction of underpayment matters but allows for the correct rate to be used in any calculation of compensation.

[112] For the reasons set out above, the allegations of misconduct were not substantiated. Therefore, this factor supports that no deduction is required to be made under s.392(3).

[113] The Applicant sought $10,572.90 (gross) plus superannuation. The Applicant's representative sought this figure based on her rate of $41.02 per hour for 5 weeks and 1 day when she was out of work. In addition he sought the underpayment difference of $3.30 per hour for 20 weeks and 4 days (the aggregate of both amounts related to payments across 26 weeks). As noted above, the Respondent did not put any evidence, nor submissions before the Commission on the issue of remedy.

• [114] As per the Full Bench decision in Vennix v Mayfield Childcare Limited:[45]

"We have earlier set out the terms of s 390(3). That provision, in plain terms, requires that the Commission must not make an order for the payment of compensation in respect of an unfair dismissal unless and until it is satisfied as to two matters: first, that the reinstatement of the person who has been dismissed is inappropriate and, second, that an order for the payment of compensation is appropriate in all the circumstances of the case."

[115] In accordance with the decision in Vennix, as above I consider that reinstatement is inappropriate and that it is appropriate to make an order for compensation.

[116] 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[46] 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.[47]

Step 3: Discount the remaining amount for contingencies.[48]

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."

[117] In accordance with the Sprigg calculation, I must first determine the estimated remuneration that the Applicant would have received if she was not dismissed. The Applicant's submission also was that she thought she was going back to her prior role as Lead Educator. There is a claim that she was paid the wrong rate when she commenced in her role as Centre Director. It is noted that an unfair dismissal application is not the jurisdiction to determine the correct payment rate. It is clear from the evidence that there was no issue with the Applicant's performance as a Lead Educator. So even if her employment changed back to being a Lead Educator, as there was scope to do, (but no agreement), it is clear that her employment overall would not have ended. However tension between the parties was clearly emerging. The Applicant was receiving little support from Mrs Kapoor in the Centre Director role, and the evidence was that no discussion was held that the Applicant's job was in jeopardy or that she was not meeting the inherent requirements of the role. It is also acknowledged that the Applicant had written an expression of interest, however there was no evidence as to whether this had been sent. The Applicant had been employed at Little Ted's for a significant period of time. I consider taking into account these considerations, that it is likely that the Applicant's employment would have continued for 12 weeks. Under the first limb of the Sprigg formula, the Applicant would have received $18.459.00 (gross), less applicable taxation, plus superannuation. That is, calculated at 12 weeks worked at 37.5 hours per week at the hourly rate of $41.02 for a Centre Director.

• [118] In the current circumstances, the Applicant, even at the time of Hearing had not been paid wages in lieu of notice. In accordance with the reasoning in the case of Burke v Suncorp Group Pty Ltd[49], deductions do not have to be made if the Applicant has not received payment in lieu of notice. In the current circumstances, the period of the notice has been included in the overall calculation period, and no deduction needs to be made as no wages in lieu of notice were made:

"[150] At the point he was dismissed, Mr Burke head been employed for a total period of almost seven years, although there had been a break in service. His most recent period of service was approximately three years and four months. Mr Burke was told that he would be paid two weeks wages in lieu of notice on termination of his employment in August 2014. That amount was not paid until November 2014. At that time, Mr Burke was paid the two weeks in lieu of notice set out in his termination letter and a further amount of one week and two days wages when Ms Rowan realised that not only had Mr Burke not been paid notice at the time of his dismissal, but the period had also been miscalculated.

[151] While I accept that this oversight was not intentional I do not doubt that it would have caused Mr Burke significant difficulty given that he was unemployed even at the point this application was heard. Dismissed employees should not have to wait for considerable periods to receive their minimum statutory entitlement to payment in lieu of notice and the impact of the failure of Suncorp to pay this amount in a timely fashion is a matter that I have taken into account in calculating compensation. This is particularly so given that the notice payment was not made until the period over which I have assessed compensation had elapsed.

[152] Had Mr Burke remained in employment for the 8 week period he would have earned the gross amount of $8,400. Given my findings about the failure of Suncorp to properly consider whether health issues had impacted on Mr Burke's conduct and work performance, and that Mr Burke was dismissed for poor work performance rather than misconduct, I do not consider it appropriate to make a deduction in this regard. Given the late payment of Mr Burke's statutory entitlement to payment in lieu of notice and that the payment was made outside the time period for which I have determined that Mr Burke would likely have remained in employment, I make no deduction for the period of notice. In my view, the requirement to take such amounts into account does not necessitate that they are deducted from an award of compensation" (emphasis added)

[119] An Applicant has an obligation to endeavour to mitigate their loss by looking for further employment. The Applicant is commended for finding further employment; the Applicant found further work as a Lead Educator at another Childcare Centre 5 weeks and 1 day after the termination of her employment by the Respondent. In accordance with the next step of Sprigg, the earnings from the date of commencement in her new employment are to be deducted. Also taking into account any contingencies, I have deducted 7 weeks of the Applicant's wages in her new employment, based on her hourly rate of $37.72 (which is $3.30 less than the Centre Director hourly rate) for 37.5 hours per week. The amount to be deducted is calculated to be $9,901.50. As such, the compensation is $8,557.50 (gross) ($18,459.00 deducting $9,901.50).

[120] It is recognised that the Applicant's representative was seeking 26 weeks, however in relation to the estimate of continuing employment, whilst there was no clear communication of performance issues by Mrs Kapoor to the Applicant, there was tension between the parties. Such as that the Applicant did not agree with the way in which Ms Mercer had been dismissed. This is supported by her preparing an application for alternative positions. In addition, it must be recognised that the Applicant did obtain alternative employment within the period of around 5 weeks. As such the estimated continuing employment period is lesser than was submitted by the Applicant's representative.

[121] It is noted that in accordance with s.392(4) of the Act, that this amount of compensation does not include a component for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal. Further, it is confirmed that, in accordance with s.392(5) that the amount of compensation is below the compensation cap.

[122] Taking into account all of the circumstances, no merit has been made out as to the reasons for the termination which was also undertaken without any procedurally fair steps being provided to the Applicant. In fairness, the amount of compensation awarded for all of the reasons as set out is $8.557.50 plus superannuation. A separate Order (PR798543) is made for the payment of this amount within 14 days of the date of this decision.

Sharn Enterprise Pty Ltd ATF Kapoor Family Trust (T/A Little Ted's Childcare) is to pay Ms Mellissa Bowyer compensation in the amount of $8.557.50, less tax according to law. In addition superannuation is to be paid to Ms Mellissa Bowyer's superannuation fund. Both amounts are to be paid within 14 days of the date of this decision.

[1] Digital Hearing Book (DHB) at pg. 58.

[2] Australian Children's Education & Care Quality Authority, National Quality Framework | Information Sheet: Nominated Supervisors .

[3] [2025] FWC 3933.

[6] [2026] FWC 910; [2026] FWC 951.

[7] Ms Bowyer's Witness Statement, DHB at pg.25 [5].

[9] Mrs Kapoor during cross-examination in the Hearing of Ms Mercer.

[10] [2017] FWCFB 3941.

[11] [2015] FCA 1165.

[13] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 625; (1995) 62 IR 200.

[14] [2006] AIRC 496 (PR973462).

[16] [2024] FCA 12 at [82].

[19] Cited in O'Meara v Stanley Works Pty Ltd [2006] AIRC 496 (PR973462) at [21] (as above).

[20] [2012] FWAFB 1359.

[22] [2010] FWA 7891 at [60].

[23] [2011] FWA 3922 at [8].

[24] [2012] FWAFB 1359 at [38].

[25] Fair Work Regulations 2009 (Cth) Regulation 1.07, (2)(a)-(b).

[27] Selvachandran v Peterson Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 at 373; see Austin v Sandgate Taphouse Pty Ltd T/A Sandgate Post Office Hotel [2024] FWCFB 323 at [52].

[29] [1938] HCA 34; (1930) 60 CLR 336.

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

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

[32] [2021] FWCFB 3457.

[33] Fair Work Act 2009 (Cth) s.387(d).

[34] Fair Work Act 2009 (Cth) s.387(e).

[35] Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.

[36] Fair Work Act 2009 (Cth) s.387(f).

[37] Fair Work Act 2009 (Cth) s.387(g).

[38] Sykes v Heatly Pty Ltd t/a Heatly Sports, PR914149 at [20].

[39] Williams v The Chuang Family Trust t/a Top Hair Design [2012] FWA 9517 at [40].

[40] [2000] AIRC 779.

[41] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 at [17].

[43] Sprigg v Paul's Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.

[44] Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey [2013] FWCFB 431; Jetstar Airways Pty Ltd v Neeteson-Lemkes [2014] FWCFB 8683.

[45] [2020] FWCFB 8283 at [18].

[46] Fair Work Act 2009 (Cth) ss.392(2)(b) -(c) and (g).

[47] Ibid s.392(2)(e).

[48] Ibid ss.392(2)(a), (d) and (f).

[49] [2015] FWC 3357.

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