d) his dismissal was not a case of genuine redundancy (s 385(d)); and

e) his dismissal was not a case involving the Small Business Fair Dismissal Code, as the Respondent employs between 20 and 29 employees (s 385(c)).

• [71] Section 387 of the Act outlines the factors to be considered in determining whether a dismissal was harsh, unjust or unreasonable. The matters to be taken into account are:

(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.

Section 387(a) - whether there was a valid reason(s) for the applicant's dismissal

• [72] In Rode v Burwood Mitsubishi,[1] a Full Bench of the then Australian Industrial Relations Commission discussed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996, and referring to Selvachandran v Peteron Plastics Pty Ltd [2](Selvachandran). The Full Bench found:

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant's submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.

• [73] In Sydney Trains v Hilder (Hilder),[3] the Full Bench of the Commission observed in relation to s.387(a):

The principles applicable to the consideration required under s 387(a) are well established, but they require reiteration here:

(1) A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.

(2) When the reason for termination is based on the misconduct of the employee the Commission must, if it is in issue in the proceedings, determine whether the conduct occurred and what it involved.

(3) A reason would be valid because the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour).

(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee's dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).

(5) Whether an employee's conduct amounted to misconduct serious enough to give rise to the right to summary dismissal under the terms of the employee's contract of employment is not relevant to the determination of whether there was a valid reason for dismissal pursuant to s 387(a).

(6) The existence of a valid reason to dismiss is not assessed by reference to a legal right to terminate a contract of employment.

(7) The criterion for a valid reason is not whether serious misconduct as defined in reg 1.07 has occurred, since reg 1.07 has no application to s 387(a).

(8) An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant matter under s 387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.

(9) Matters raised in mitigation of misconduct which has been found to have occurred are not to be brought into account in relation to the specific consideration of valid reason under s 387(a) but rather under s 387(h) as part of the overall consideration of whether the dismissal is harsh, unjust or unreasonable.

• [74] The Applicant admitted his failure to follow the directions not to work outside normal hours, and to notify Mr Carpenter when he was unfit for work and to take leave, was an act of misconduct, but not serious misconduct that constituted a valid reason for dismissal.

• [75] Incidents in the week prior to the Applicant's surgery on 12 July 2024, and after the Applicant's discharge from Hospital from mid-July to mid-August, resulted in the Directions being given. I find that the Directions were reasonable in the circumstances in the circumstances. That is because:

(a) The Applicant was part of an interdependent team requiring close collaboration. The Directions facilitated transparency about when the Applicant was/wasn't working, as well as communication with colleagues during mutual working hours;

(b) In the written expression of the Directions, the Respondent had provided the Applicant with a copy of his job description to give to his Oncologist the following day and "...__ask if there are any issues with you being able to do your job, including working in the office 3 days a week. It would be great to have their opinion in writing";

(c) It was the Applicant who was pressing for an almost immediate return to work after his surgery;

(d) The Directions were consistent with the provisions of the Respondent's Leave Policy, Work From Home Policy and the Contract; and

(e) The Applicant did not contemporaneously cavil with the Directions, but rather confirmed future compliance with the Respondent.

• [76] From 19 August 2024, the date the Directions were issued verbally and in writing, the Applicant was fully aware of the terms of the Directions. The Applicant chose, however, to either ignore, or "game" his way around, those Directions. While the Applicant gave clear and responsive evidence, the offer/claims that work out of hours was voluntary and not subject to payment was disingenuous. As the Applicant conceded, he was seeking a way to "slip past this regulation [the Directions]".

• [77] On 4 to 5 September and 25 September 2024, the Applicant knowingly breached the Directions. His misconduct was not minor or trivial. It was in direct defiance of the Directions that were soundly based and clearly necessary. As outlined in Hilder, whether the conceded misconduct amounted to serious misconduct as defined in the Fair Work Regulation 2009, is irrelevant. The presence of a valid reason weighs in favour of a finding that the dismissal was not harsh, unjust or unreasonable.

Section 387(b) - Notification of the reason for the dismissal

• [78] The Applicant was notified of the reason for the dismissal in letter dated 10 October 2024. That correspondence outlined a detailed explanation of reasons. This is, however, a neutral factor in relation to the question of whether the dismissal was harsh, unjust or unreasonable.

Section 387(c) - Opportunity to respond to any reason

• [79] The Applicant was given an opportunity to respond to the reasons for dismissal during the show cause meeting, and he also provided written responses. This is a neutral factor in relation to the question of whether the dismissal was harsh, unjust or unreasonable.

Section 387(d) - Unreasonable refusal by the employer of a support person

• [80] The Applicant was invited to, and did in fact bring a support person to the show cause meeting.

• [81] The dismissal was not for unsatisfactory performance, and this is not a relevant consideration.

Sections 387(f) and 387(g) - The size of the employer's enterprise/human resources

• [82] The Respondent is a smaller organisation consisting of approximately 20 to 29 staff. The Respondent does not employ any dedicated human resource management specialists or any staff with expertise in employment law. I nonetheless consider the size of the Respondent would not have affected the procedures followed in effecting the dismissal. This is a neutral factor in relation to the question of whether the dismissal was harsh, unjust or unreasonable.

• [83] I do not accept that dismissal was disproportionate in this matter. The Applicant had wilfully and deliberately behaved in a manner inconsistent with the continuation of the Contract, notwithstanding numerous clear warnings, and his conduct satisfied the definition of serious misconduct. Nonetheless, he was paid five weeks notice on a discretionary basis.

• [84] The Applicant knowingly and repeatedly flouted the Directions. Were dismissal to have flowed from the initial breaches on 20 and 21 August 2025, of the Direction given on 19 August 2025, the Applicant would have had greater cause for complaint. However, the Applicant received further reinforcement of the Directions, and the consequence of their breach, on 6 and 13 September 2025.

• [85] The Applicant submitted that even if serious misconduct were found, summary dismissal would be disproportionate having regard to the circumstances that led to the dismissal, the Applicant's length of service, his personal circumstances including his age, health and family circumstances, the impact upon his future employment prospects, and non-payment of pro rata long service leave.

• [86] While it is only natural for reference to be made to the serious illness suffered by the Applicant, and the surgical procedure that took place, I do not consider that or any other of the matters, or combination of such matters, relied upon by the Applicant ultimately weigh in favour of the dismissal being harsh, unjust or unreasonable due to the circumstances that led to the dismissal.

• [87] I note that long service leave was in fact paid on a proportionate basis,[4] and consider dismissal was proportionate in the circumstances.

• [88] I do not consider there was differential treatment between the Applicant and Ms Mercer, or other staff. Ms Mercer was employed under a maximum term contract in the position of Finance Director, and she led the Finance Team. Ms Mercer was not issued directions relating to her working hours.

• [89] Ms Mercer was part of the Senior Staff team that consists of directors and collectively, is responsible for the entirety of the organisation. The Senior Staff Team is expected to be able to respond in real time to any emergency situations with any CMS missionaries from around the world and may have to work outside of CMS Australia's usual business hours. That is not the same for the Communications Team.

(c) Statutory Right to Request a Flexible Work Arrangement

• [90] Accepting that the Applicant came within the circumstances of s.65A of the Act, and that the Respondent did not inform its employees of their right to make a statutory request under section 65(1A) of the Act (though it did Fair Work Information Statement when the Applicant commenced employment), I find that circumstances in the paragraph [75] above**,** also disclose the unlikelihood of the Applicant ever advancing a request for a flexible working arrangement.

• [91] What greater invitation for considering such an arrangement could have been advanced than a providing a copy of his job description to give to his Oncologist and asking if there were any issues with his being able to do his job? While the report of Professor Clarke dated 5 November 2024, indicates that he would have supported a request for the Applicant to "take breaks inside normal hours when he is feeling unwell and then have flexibility to catch up outside normal work hours to ensure his duties are met", that report was produced 22 days after the dismissal, and was no more than commentary after the fact of dismissal.

• [92] I have made findings in relation to all matters specified in s 387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.

• [93] I have found the Respondent had a valid reason for the dismissal of the Applicant, and that procedural fairness was afforded to the Applicant. There were no other relevant matters that tended to make the dismissal harsh, unjust or unreasonable. I therefore do not find that the dismissal of the Applicant was harsh, unjust or unreasonable.

[2] [1995] IRCA 333; (1995) 62 IR 371

[3] [2020] FWCFB 1373, at [26].

Printed by authority of the Commonwealth Government Printer