//
[2026] FWC 791
General information, not legal advice.
Fair Work Commission
2026-03-12
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Application for an unfair dismissal remedy - Compliance with the Small Business Fair Dismissal Code - Application dismissed
[1] On 4 September 2025, Mr Bradley Waye (the applicant) applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth). Mr Waye worked for Entire Building Services Pty Ltd (EBS / the employer / respondent). EBS operates a business performing commercial building maintenance, such as replacing locks and door handles, 'patch and paint' jobs and safety works. Mr Waye performed maintenance duties on a day-to-day basis. EBS dismissed Mr Waye around 12 August 2025.
[2] Mr Waye's application was made within the further time that I allowed in [2025] FWC 2890. Permission to appeal the decision was refused in [2025] FWCFB 249.
[3] Mr Waye is a person who is protected from unfair dismissal. His employment start date was around 15 August 2023, so he was employed for almost 2 years when his employment ended. Mr Waye has completed the minimum employment period of more than one year; EBS is a small business employer that employed 12 employees at the time that Mr Waye's employment ended.
[4] There is no dispute that Mr Waye's annual earnings would be less than the high-income threshold. The employer is of the view that his employment is not covered by any award. I disagree with that view; the employer operates in the general building and construction as defined in clause 4.3(a) of the Building and Construction General On-site Award 2020 and Mr Waye's employment comes within the classifications in Schedule A to the Award. The parties did not address me on this, but I do not have to resolve this issue for the purposes of this matter as Mr Waye's annual earnings are less than the high income threshold.
[5] Section 385 of the Act provides that a person has been unfairly dismissed if:
a) The person has been dismissed;
b) The dismissal was harsh, unjust or unreasonable;
c) The dismissal was not consistent with the Small Business Fair Dismissal Code; and
d) The dismissal was not a case of genuine redundancy.
[6] There is no dispute that Mr Waye has been dismissed within the meaning of s 386 of the Act. This is evident from the termination letter dated 13 August 2025 and emailed to Mr Waye on 14 August 2025.
[7] I am satisfied that this is not a case of genuine redundancy. The employer's reason for dismissing Mr Waye was serious misconduct.
[8] Entire Building Services have raised the jurisdictional objection that it dismissed Mr Waye in accordance with the Small Business Fair Dismissal Code.
[9] So, the issues to be determined in this matter are:
[10] I conducted a determinative conference in this matter on 23 December 2025. Mr Waye gave evidence on his own behalf. Mr Simon O'Dwyer, Director, and Miss Jodie Ainsworth, Administration Officer, gave evidence on behalf of EBS.
[11] I found Miss Ainsworth credible and forthcoming in her evidence. Her recollection was clear and she was forthright in her replies. Miss Ainsworth was responsible for administrative matters, and not directly involved in day-to-day interactions with Mr Waye. Mr O'Dwyer's recollection was less reliable but he did his best to provide evidence, and I found him truthful. He did not attempt to give evidence that he said he could not recall. I found Mr Waye to exaggerate and, while I accept that he believed the evidence he provided, it was often contradicted by documentary evidence. Where the evidence conflicted, I preferred the evidence provided by Miss Ainsworth and Mr O'Dwyer.
[12] When Mr Waye started his employment, EBS provided him with a copy of its policies and required him to sign an acknowledgement that he had
read and been informed about the content, requirements, and expectations of the company handbook policy for employees at Entire Building Services Pty Ltd.
received a copy of the handbook and agree to abide by the handbook guidelines as condition of [his] employment and [his] continuing employment at Entire Building Services Pty Ltd.
received and acknowledged all Company Policies and Procedures and agree to abide by them including but not limited to the following:
[13] The document then listed 16 policies, including the Motor Vehicle Use Policy and the Vehicle Tracking Policy.
[14] The Motor Vehicle Policy included a list of aims and objectives, which included that company vehicles would be serviced and maintained, and a list of responsibilities for the company and persons operating company vehicles. The responsibilities for persons operating company vehicles included:
[15] The Vehicle Tracking Policy stated that the EBS used electronic tracking devices to monitor all company vehicles' movements and the tracking data would be
used to cross check the location of staff for payroll purposes and for job management.
[16] Mr Waye confirmed that he saw the policies when he started employment. However, Mr Waye says that he had a "sit-down meeting" with Mr O'Dwyer and Mr Shaun O'Dwyer in the first 6 months of his employment in which they informed him that he could use the company vehicle for his own personal use, provide that he was not abusing it. Mr O'Dwyer says that he did not recall such a meeting. Miss Ainsworth says that it was unlikely that this meeting would have occurred because Mr Shaun O'Dwyer (Mr O'Dwyer's son) had been introduced into the business to take over its management but would not have been involved in the early period of Mr Waye's employment. I find that it is unlikely that this meeting and authorisation occurred.
[17] Mr O'Dwyer also gave evidence that he conducted toolbox meetings (which are currently monthly but in the early part of Mr Waye's employment were initially quarterly) at which he reiterated the company's policies, especially about personal use of company vehicles.
[18] Further, every job sheet requires an acknowledgement of the company's policies.
[19] Last, Miss Ainsworth sent an email on 7 July 2025, which was a reminder about some of the company's policies. In relation to use of company vehicles, the email said:
Company vehicles are for use of business use only, we approve use for minor trips, for example picking your kids up on the way home from work, or for collecting groceries on the way home etc.
We do not approve use of a company vehicle for casual weekend personal use or personal use on a day off.
If you would like a copy of the motor vehicle policy it is on Servicem8 and/or we can send you a copy.
We also remind everybody that your company vehicle has a GPS installed, the GPS report is checked against your payroll each week to verify your hours.
[20] EBS provided GPS records of the times it said that Mr Waye used the company vehicle for his own personal use. Those records show that Mr Waye used the vehicle out of usual business hours, late in the evening and on weekends. The records relate mostly to July 2025. Mr Waye does not dispute that he used the company vehicle for his own personal use. It was his view that he had been authorised to do so provided he did not abuse that authorisation, and that Miss Ainsworth's email above was not intended for him but for newer employees. I do not find this credible. The email is explicit and clear.
[21] In October 2024, Mr Waye posted a personal invoice to the work group chat. Mr Waye removed the invoice shortly after posting it. Mr Waye says that he never posted it to the group chat. I prefer Mr O'Dwyer's evidence; I do not consider there is any basis for Mr O'Dwyer to fabricate this and he was frank in his responses when he could not recall an event.
[22] The posting of the personal invoice led to Mr O'Dwyer forming the view that Mr Waye was using EBS resources to run his own business. However, Mr O'Dwyer did not speak with Mr Waye about the matter. Mr O'Dwyer said that what someone does out of hours is not his business, but that it should not have an impact on the business.
[23] In December 2024, Mr Waye purchased acrylic sheets from an external business. In April 2025, the external business invoiced EBS for the acrylic sheets. The description on the tax invoice read "Acrylic Sheet Form Invoice for your private job." EBS paid the invoice. Mr Waye does not dispute that he purchased the sheets and that it was for his own work. Mr Waye said that the issue about payment of the invoice was a breakdown in communications. He was in dispute with the external business about the sheets, as he was unhappy with the quality of the sheets and there had been a delay in delivery. The external business invoiced EBS and Mr Waye informed an administrative team member that it was for a private job and to disregard it as he was handling it. However, Miss Ainsworth paid the invoice.
[24] In March 2025, Mr Waye purchased tools on the company's Bunnings card. Mr Waye says the tools were to enable him to complete a job on the company's behalf. The company did not agree.
[25] Around the end of April 2025, EBS and Mr Waye came to a payment arrangement for him to repay the above amounts. The discussions around payment arrangements led to Mr Waye making a complaint about Miss Ainsworth, detailed below.
[26] On 28 April 2025, Mr Waye sent an email to Mr O'Dwyer and Mr Shaun O'Dwyer. The email complained about his treatment by Miss Ainsworth in relation to recent calls and text messages. Mr Waye asked that communications occur only from Mr O'Dwyer, Mr Shaun O'Dwyer or the other administration team member. Mr Waye said that Miss Ainsworth made him feel "belittled, untruthful in his words and basically not worth much at all to Entire." He requested a time to sit down and have a "straight discussion" with Mr O'Dwyer and Mr Shaun O'Dwyer.
[27] In April and May 2025, EBS received final demands for parking fines. Mr Waye does not dispute that he incurred the parking fines. EBS paid the fines. The amount of the fines were added to the payment arrangements above.
[28] The company also had concerns that Mr Waye was falsifying his time sheets. Miss Ainsworth's evidence is that another administrative team member cross-checked GPS records with jobs and formed the view that Mr Waye was submitting incorrect information, for example that he left early and started late. Miss Ainsworth's evidence is that she did not speak directly with Mr Waye about the matter but that she asked Mr Shaun O'Dwyer to raise it with Mr Waye when it became clear that the time sheet inaccuracies were a regular occurrence.
[29] Mr Waye did not dispute that the records show that he did not accurately claim his time. In his words, it was "give and take." He explained that sometimes travel to a job would mean that he could not get to another job on time, and he would have to work overtime that he did not claim.
[30] Mr O'Dwyer said that he and Mr Shaun O'Dwyer met with Mr Waye on 9 May 2025, where the matters relating to failure to pay fines, personal use of the company vehicle, purchase of materials for personal use on the company's account and submitting false time sheets was discussed. Mr Waye disputes that the meeting occurred, although he does not dispute that he was spoken to about each of the matters (except for the matter relating to false time sheets). In relation to payments of his fines and for the purchase of materials and tools, Mr Waye was of the view that this matter was resolved because he entered into a payment arrangement to repay the invoice. I believe Mr Waye's evidence that he repaid the invoice, initially in instalments and then he paid the balance after he sold his motorbike. I was provided with a document that purports to be minutes of the meeting of 9 May 2025; however, during the determinative conference, Mr O'Dwyer's evidence was that he did not produce that document but that there were several meetings where he discussed with Mr Waye the above matters. I find that the company did speak with Mr Waye about each of the above matters, and that they occurred over a period of time and on multiple occasions in May 2025. I consider Mr Waye disputing that the meeting occurred is not credible, in light of his email of 28 April 2025 expressly seeking a sit down meeting.
[31] On Friday 8 August 2025, Mr Waye sent a text message to Mr Shaun O'Dwyer, that said:
Hey mate, quick question. What's the deal with [an apprentice] getting the triton ute? I asked for it months ago, and was told no because its cabinetrys ute??? I do good work for Entire, but this has left a sour taste mate, my work quality won't drop off, but ill be looking for another job. Im being honest with entire... Have a great arvo/weekend..
[32] On Monday 11 August 2025, Mr Waye had a rostered day off. During his rostered day off, he made multiple trips in the company vehicle to a site on Wirraway Drive, Port Melbourne. Mr Waye says that was for one of his own clients that he looks after.
[33] On 12 August 2025, Mr Waye was off work due to being sick. At 5:22am, he sent a text message to let Mr Shaun O'Dwyer know that he would not be in. At 12:18pm, Mr Shaun O'Dwyer sent Mr Waye a text message that said
Hey Brad, I took your message last Friday as a resignation with Entire as you are now looking for another job. I did try to call you back 25 minutes after you rang but haven't had a call back as yet. We would like to arrange collection of the Ute and will allow you the weeks notice to find employment elsewhere without needing to work for EBS in the meantime. Would you be able to empty Ute and return today or I can also come and collect if required. The office will follow up with any required paper work if needed. Thanks
Hey Shaun, I never once said in my message that it was my resignation, or any end date noted. If your telling me to return work, and terminate employment, ill take that as being sacked via text when im home sick with no prior warnings or communication about my employment. Ill now contact Fair Work Australia, to find out how legal this is, and how to move forward from here, given ive never had a written warning against my name up until today. As per your request, ill empty ute and you can collect as per your request. Any correspondence moving forward from here on in, id like via Email only to [Mr Waye's email address] to keep future records. To finialise this, id like via email a letter of termination from yourself, and a written statement of all my entitlements and notice period. Ive enjoyed my time with Entire, and im very disappointed it has ended this way. Regards Brad Waye.
No problems the office will follow up with the required paper work. I will pick up the car later tonight and will message you an hour prior to collecting the car. [Instructions for leaving the car key followed]
[36] There was then an exchange in text messages about the return of the company vehicle, which was collected by Mr Shaun O'Dwyer on 13 August 2025.
[37] On 14 August 2025, EBS emailed Mr Waye a termination letter dated 13 August 2025. The letter was signed by Mr Simon O'Dwyer. The letter terminated Mr Waye's employment with immediate effect and for the following reasons:
Was Entire Building Services dismissal of Mr Waye consistent with the Small Business Fair Dismissal Code?
[38] The Small Business Fair Dismissal Code is a legislative instrument made under s 388 of the Act. Section 388(2) of the Act provides:
A person's dismissal was consistent with the Small Business Fair Dismissal Code if:
The Code recognises the special circumstances of small business employers by providing separate, simple rules for small business employers to follow when dismissing an employee.
[40] The Code itself is a one-page document that has two streams:
[41] In relation to summary dismissal, the Code provides:
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.
[42] In relation to dismissals other than summary dismissals, the Code provides:
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.
[43] The Code also deals with procedural matters (having a person assist and providing evidence of warnings to the Commission), which are not relevant to this matter.
[44] There is no dispute that the employer is a small business employer.
[45] The employer does not argue that it dismissed Mr Waye due to his performance. Rather, they dismissed Mr Waye summarily for misconduct. In order for the dismissal to be consistent with the Code, the employer must believe, on reasonable grounds, that the employee's conduct is sufficiently serious to justify immediate dismissal.
[46] I am satisfied that the employer had reasonable grounds to believe that Mr Waye engaged in conduct that was sufficiently serious to justify immediate dismissal. Those matters included his repeated use of the company vehicle for personal reasons and incorrectly claiming time worked. While the conduct relating to purchasing materials using the company's account or credit card could constitute matters relating to conduct that could justify immediate dismissal, the evidence is clear that the employer did not believe, at the time that it became aware of the conduct occurring, that it did justify dismissal. Rather, it was the accretion over time of the matters relating to the company vehicle and incorrectly claiming time. I am of the view that the employer believed those reasons existed, and they had reasonable grounds to do so. Mr Waye does not deny the conduct; rather, he argues that the conduct was authorised. I do not find this credible.
[47] I am of the view that, despite the text messages of 8 and 12 August 2025, the employer did believe it had grounds to summarily dismiss Mr Waye. It appears from Mr Shaun O'Dwyer's text message that the employer saw an opportunity to misunderstand Mr Waye's message and accept a resignation that was not offered. That does not detract from the conduct for which the employer nevertheless believed, on reasonable grounds, that it could dismiss Mr Waye.
[48] For completeness, I observe that the employer could not have complied with the Code if the dismissal was not a summary dismissal. While I am of the view that the employer did warn Mr Waye about his conduct, that warning did not clearly indicate to him that his employment was at risk if there was no improvement.
[49] As I have found that Mr Waye's dismissal was consistent with the Code, I do not have to consider whether the dismissal was unfair. For completeness, I would have found that the employer had valid reasons for dismissing Mr Waye but that the procedural failings, despite being a small business, would have weighed in favour of a finding that the dismissal was unfair. In those circumstances, I would have required further evidence from the parties to consider remedy, but would have considered that Mr Waye would have remained in employment for only a matter of weeks, and would have taken into account how his conduct may have led to the dismissal.
[50] I am satisfied that Entire Building Services complied with the Small Business Fair Dismissal Code in relation to their summary dismissal of Mr Waye. As I have found that the dismissal was consistent with the Code, it is not an unfair dismissal. I dismiss Mr Waye's application.
[51] I order the Mr Bradley Waye's application for an unfair dismissal remedy made on 4 September 2025 in FWC Matter U2025/14437 be dismissed.
Printed by authority of the Commonwealth Government Printer
Mr Bradley Waye
Entire Building Services Pty Ltd [2026] FWC 791