Fair Work Act 2009

s.394 - Unfair dismissal

[1] On 11 March 2025, Mr David McCormick (Mr McCormick or the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy alleging that he has been unfairly dismissed from his employment with Western Australian Honey Pty Ltd (the Respondent). Mr McCormick seeks compensation for their dismissal.

• [2] It is not in dispute that Mr McCormick filed his application within the 21-day period. Mr McCormick's employment was subject to the Pastoral Award 2020.[1] Mr McCormick's employment did not end because of a genuine redundancy. Mr McCormick had been employed for greater than 12 months at the time of his dismissal.

• [3] The Respondent asserts that the Small Business Fair Dismissal Code (SBFDC)[2] applies to the termination of Mr McCormick's employment.[3] The Respondent submits that, at the time of the dismissal, the business employed less than 15 employees.[4] Mr McCormick does not dispute the number of employees. I am satisfied that the SBFDC is a relevant consideration in this matter.

[4] The Respondent raised a jurisdictional objection, that being Mr McCormick resigned from his employment with the Respondent.

[5] The matter did not resolve at conciliation; the matter was then listed for hearing on 24 June 2025. Mr McCormick was self-represented at the hearing. The Respondent was also self-represented by Mr Fewster (Owner).

[6] As both parties were self-represented, the material filed by the parties was at the time lacking in detail and of limited relevance to the matter to be determined by the Commission.

[7] Mr McCormick commenced employment with the Respondent in 2019, the parties agreed that Mr McCormick commenced employment as a casual employee and worked with the Respondent during his time off from his other employment working on a FIFO basis in the WA mining industry. Mr McCormick subsequently resigned from his FIFO employment in May 2020 and commenced permanent full-time employment with the Respondent.

[8] From the evidence of the parties, it is not disputed that the workplace relationship between Mr McCormick and Mr Fewster was at times volatile. I note that during the hearing Mr Fewster displayed conduct which often led to Mr McCormick becoming agitated or frustrated with Mr Fewster and vice versa.

[9] From the materials provided by the parties, the ending of Mr McCormick's employment with the Respondent occurred on Monday 24 February 2025, following a heated discussion between Mr McCormick and Mr Fewster. Having considered the conduct of Mr Fewster during the hearing, I have determined that where Mr McCormick and Mr Fewster's evidence is in conflict that I prefer the evidence of Mr McCormick. This is because the evidence of Mr McCormick is more consistent and plausible with the text message evidence provided by Mr McCormick than the evidence provided by Mr Fewster.

[10] Mr McCormick submits that he was dismissed by the Respondent on the morning of Monday 24 February 2025, when Mr Fewster told him to "fuck off" following an argument as to if Mr McCormick would be responsible for sourcing and paying an electrician to make repairs on equipment that had been damaged at the worksite. Mr McCormick submits that following the heated discussion between himself and Mr Fewster that he had his partner pick him up from the worksite. Mr McCormick submits that he received a text message from Mr Fewster at 11.29am on 24 February 2025 which stated "Notice of Termination. Termination of employment with Western Australia Honey is effective from today. 24th February 2025". Mr McCormick submits that he did not resign from his employment with the Respondent and that he was dismissed at the initiative of the Respondent.

[11] Mr Fewster submits that Mr McCormick resigned from his employment with the Respondent on the morning of 24 February 2025 following a discussion as to who should be liable for the cost of an electrician to repair a bore cable. Mr Fewster submitted that Mr McCormick screamed "I quit" and left the workplace of his own accord. Mr Fewster submitted that when Mr McCormick did not return to work after a couple of hours, he sent a text message to confirm that Mr McCormick was no longer employed.

[12] Mr Fewster gave evidence in relation to his overall concern about the performance of Mr McCormick whilst he was employed with the Respondent and submitted that the performance of Mr McCormick had led to the Respondent incurring additional expenses for repairs previously due to damage caused by the Applicant.

[13] Having considered the submissions and evidence of the parties, I had determined that Mr McCormick was dismissed from his employment with the Respondent at the initiative of Mr Fewster. I therefore dismissed the jurisdictional objection of the Respondent that Mr McCormick resigned from his employment of his own accord. My reasons are outlined below.

[14] Whilst I acknowledge that Mr Fewster is not a trained human resource professional, the wording of his text message to Mr McCormick on the morning of 24 February 2025, is not consistent with Mr McCormick resigning his employment and leaving site. Rather the language used by Mr Fewster in the text message of 24 February 2025 serves as a notice of termination (my emphasis added) this text message is consistent with Mr McCormick's version that he was being dismissed by the Respondent and had not in fact resigned from his employment.

[15] As I have determined earlier in this decision, the Respondent is clearly a small business for the purposes of the SBFDC. Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services at [41] outlines that relevant test in determining circumstances in which an employer may summarily dismiss an employee from a small business.

In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider that the "Summary dismissal" section of the Code operates in the following way:

(1) If a small business employer has dismissed an employee without notice - that is, with immediate effect - on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the "Summary dismissal" section of the Code. All other types of dismissals by small business employers are to be considered under the "Other dismissal" section of the Code.

(2) In assessing whether the "Summary dismissal" section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee's conduct was sufficiently serious to justify immediate dismissal, and second whether the employer's belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.

[16] For the SBFDC to apply to the termination of Mr McCormick's employment from the Respondent, the Respondent would need to have held a reasonable belief that Mr McCormick had engaged in serious misconduct on reasonable grounds. To make this argument the Respondent needs to outline the reasonable grounds it relied upon that Mr McCormick had engaged in serious misconduct that warranted the summary dismissal of his employment from the Respondent.

[17] For the reasons outlined below I had determined that the SBFDC was not complied with in this instance. The Respondent did not make detailed submissions as to what serious misconduct Mr McCormick had allegedly been involved in during his employment with the Respondent nor the reasonable grounds the Respondent sought to rely upon to summarily dismiss Mr McCormick from his employment.

[18] The Respondent provided examples of situations whereby Mr McCormick may have damaged equipment of the Respondent and that Mr McCormick often did not take accountability for any fault in the damage to the Respondent's equipment. However, the Respondent has not explained as to how this is serious misconduct, rather at best this is an on-going performance concern that was not adequately managed by the Respondent.

[19] To put it simply, the Respondent has failed to provide an adequate explanation as to what serious misconduct Mr McCormick was guilty of and the reasonable grounds, they were relying on to summarily dismiss Mr McCormick, as the Respondent has not made out this jurisdictional objection, I am dismissing this jurisdictional objection.

[20] Having considered the submissions and evidence of the parties, I have formed the view that Mr McCormick and Mr Fewster had an argument on the morning of Monday 24 February 2025, as Mr Fewster had determined that Mr McCormick had failed to properly repair the submersible water bore pump and had damaged cabling on the pump when Mr McCormick had been trying to repair the pump on Saturday 22 February 2025.

[21] Mr McCormick had attended the workplace in his own time on the afternoon of Saturday 22 February 2025 to repair the submersible water bore pump and from the text message evidence provided, he messaged Mr Fewster to confirm that the cable had been damaged that afternoon.

[22] On the morning of 24 February 2025, Mr Fewster told Mr McCormick to get an electrician out to repair the cable and that Mr McCormick would be responsible for the cost of the repair work. As I have outlined above the parties then had a heated conversation and Mr Fewster dismissed Mr McCormick from his employment.

[23] I have determined that there was no valid reason for the termination of Mr McCormick's employment by the Respondent (s387(a) of the Act). There is no evidence which suggests that Mr McCormick was careless, negligent or reckless in his attempts to pull the submersible water pump up from the bore and in doing so was responsible for the damage to the cable on the pump. Rather from the submissions, I believe that Mr Fewster had grown frustrated with Mr McCormick over a series of events in which equipment of the Respondent had been damaged when being used by Mr McCormick and that Mr Fewster had simply reached his own breaking point with Mr McCormick. This is not a valid reason for the termination of Mr McCormick's employment with the Respondent.

[24] As I have found there was no valid reason for the termination of Mr McCormick's employment, there could not have been notification of a valid reason or opportunity to respond to such (ss387(b) - (c) of the Act). There is no evidence to suggest that Mr McCormick was unreasonably refused a support person, as no meeting was held between Mr McCormick and the Respondent (s387(d) of the Act).

[25] I accept that Mr Fewster had concerns about prior incidents of equipment damage that had occurred whilst Mr McCormick had been in control of equipment, however there was no evidence presented by the Respondent that Mr McCormick had been previously counselled or warned in relation to this concern (s387(e) of the Act). I consider this to be a neutral consideration.

[26] It is evident that the Respondent is a small business employer and that they lack the required human resources management support in dealing with employment related issues. This lack of support and structure were factors that led to Mr McCormick's employment being dismissed in a manner which lacked any of the expected or required formalities (ss387(f) - (g) of the Act).

[27] Neither party raised any other matters which I find relevant to determining the application (s387(h) of the Act).

[28] I have made findings in relation to each matter specified in section 387 of the Act as relevant. Having considered each of the matters specified in section 387 of the Act, I am satisfied that the dismissal of the Mr McCormick was harsh, unjust, and unreasonable. There was no valid reason for the termination of Mr McCormick. The examples provided by the Respondent concerning Mr McCormick's performance do not individually or collectively justify the termination of Mr McCormick's employment and termination for such issues would be disproportionate.

[29] I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Act. The parties will be contacted regarding the programming of the matter to determine remedy.

[30] The decision only deals with the unfair dismissal claim, I note that Mr McCormick has other grievances about his employment with the Respondent, such as claims of unpaid overtime and unpaid annual leave entitlements. As explained to Mr McCormick during the hearing, these matters are best addressed via the correct forum, not via this application.

[1] [MA000035].

[2] Fair Work Act 2009, Declaration under s 388(1) - Small Business Fair Dismissal Code.

[3] Fair Work Act 2009, s 385(c) and s 388.

[4] Fair Work Act 2009, s 23.

Printed by authority of the Commonwealth Government Printer