s.394 - Application for unfair dismissal remedy

The Trustee For Belli Trust T/A True Line Cladding

Application for an unfair dismissal remedy - whether dismissal was consistent with the Small Business Fair Dismissal Code - dismissal consistent - application dismissed

• [1] On 14 June 2025 Mr Jayden Bell-Inskip filed an application pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act) seeking a remedy in relation to unfair dismissal with respect to his former employer, The Trustee For Belli Trust T/A True Line Cladding (True Line).
• [2] The application was the subject of a hearing conducted in the Commission at Melbourne on 28 August 2025. Mr Bell-Inskip was self-represented at the hearing and Mr James Belli, True Line's Director, appeared for True Line. I decided to conduct the hearing by way of determinative conference and both Mr Bell-Inskip and Mr Belli confirmed under oath the veracity of their evidence given during the determinative conference and had the opportunity to ask each other questions.

Ordering a remedy in relation to unfair dismissal.

• [3] Before considering the merits of an unfair dismissal application such as that filed by Mr Bell-Inskip, the Act requires I must first decide several matters, including whether the application was made within the time limit, whether the person was "protected from unfair dismissal", whether the dismissal was a case of genuine redundancy and, whether the dismissal was consistent with the Small Business Fair Dismissal Code (SBFDC)[1].
• [4] Mr Bell-Inskip's application was made within the standard time limit and it was not suggested his dismissal was a case of genuine redundancy. He is also a person "protected from unfair dismissal"[2] but there is a question as to whether the dismissal occurred consistent with the SBFDC.

• [5] Mr Bell-Inskip commenced working for True Line on 28 March 2022. He was employed as a carpenter and cladding installer.
• [6] Mr Bell-Inskip's employment was terminated on 3 June 2025. In a letter advising him of the termination of his employment, it was said that the "reasons for this termination include ... submitting a fake doctor's certificate ... these actions constitute serious misconduct under your employment contract and the Fair Work Act and as such your employment is being terminated without notice or payment in lieu of notice ...".
• [7] On 27 May 2025 Mr Bell-Inskip advised Mr Belli via text message that he was not up to attending work that day and he was not coming in.
• [8] On either the 28 or 29 May 2025 Mr Bell-Inskip sent Mr Belli a medical certificate. A copy of the medical certificate was provided in evidence and says that Mr Bell-Inskip "is unfit to do his usual work from 27/05/2025 to 31/05/2025 inclusive due to a medical condition". It is signed by Dr Toan Hau.
• [9] Upon receiving the medical certificate, Mr Belli considered that the certificate looked identical to one Mr Bell-Inksip had given him earlier in the year. A copy of the earlier medical certificate was also provided in evidence and is formatted in precisely the same manner as the other certificate, also saying that Mr Bell-Inskip is, in the opinion of the same Dr Hau, unfit to do his usual work from 10/02/2025 to 12/02/2025 inclusive due to a medical condition". Mr Belli said the two certificates contain "the same errors". An inspection of the certificates reveals they both show the medical clinic's address as "138 Sladen Sladen Street". The correct address is "138 Sladen Street". The certificates also both show an email address that Mr Belli claims does not exist and is not the clinic's email address.
• [10] Mr Belli said in his evidence that on 30 May 2025 he contacted the clinic shown on the medical certificate and was told that Mr Bell-Inskip is not a patient of the clinic and it had not issued the certificate. Mr Belli provided in evidence a copy of an email he received on 2 June 2025 which said "I have consulted with Dr Hau and our records indicate that this patient does not attend our clinic".
• [11] Mr Belli believes the medical certificates are both forgeries.
• [12] Mr Bell-Inskip says the medical certificates are genuine and that he attended the clinic on 28 or 29 May 2025. He said he consulted with Dr Hau and was provided with the certificate which he later forwarded to Mr Belli. When asked about the incongruity of this evidence, against the evidence that indicates the clinic told Mr Belli he was not its patient, Mr Bell-Inskip was not able to provide any particular explanation.
• [13] Mr Bell-Inskip claims the earlier certificate is also genuine.
• [14] After receiving the email from the clinic on 2 June 2025, Mr Belli said he took some time because he was angry but then phoned Mr Bell-Inskip and had a conversation. Both Mr Belli and Mr Bell-Inskip's account of this conversation were similar. Mr Belli told Mr Bell-Inskip that the certificates were forged and that his employment would be terminated and he was not to attend for work. Mr Bell-Inskip denied the certificates were forged and said that the Doctor wouldn't be able to disclose the information anyway. Mr Belli said he would send Mr Bell-Inskip a copy of the email he had received from the clinic and later did so via text message containing a screen shot of the message. The screen shot was blurry, and Mr Bell-Inskip asked Mr Belli to send it again, which he did (albeit it was still blurry).
• [15] On 3 June 2025 Mr Belli sent Mr Bell-Inskip a copy of the termination letter. Following this, Mr Bell-Inskip and Mr Belli exchanged several text messages in which Mr Bell-Inskip asked for a pay slip be provided.
• [16] Mr Belli submitted that Mr Bell-Inskip's conducts amounts to dishonesty, a breach of trust, and a potential criminal offence. He also refers to a written employment agreement, provided in evidence, which provides among other things that the employment may be terminated immediately "without notice, counselling, warning or compensation" in circumstances including "fraud or an act of dishonesty".
• [17] In addition to this conduct, Mr Belli said that about a week earlier he had told Mr Bell-Inskip very clearly that if he stepped out of line one more time he would be instantly dismissed. Again, Mr Belli and Mr Bell-Inskip's account of this conversation is similar, and their account is reflective of a series of text messages they exchanged leading up to the meeting which were provided in evidence. Mr Bell-Inskip said that in this conversation, which occurred in the office at True Line's premises, which he believed happened on 8 May 2025, he was given a two-week period during which he would be monitored. Both parties agreed that Mr Bell-Inskip raised several concerns during the meeting, including that he did not believe Mr Bell-Inskip had been attending work on time, and that he had been misusing fuel cards, an e-tag and the company ute.
• [18] Mr Belli said he had given Mr Bell-Inskip this ultimatum because of the build up of these issues. Not all of these allegations were particularised in Mr Belli's evidence, but material was tendered by both parties which show Mr Belli upbraided Mr Bell-Inksip from time to time about these kinds of matters. Mr Bell-Inskip did not concede there was any basis to these criticisms made against him.
• [19] Mr Bell-Inskip suggested that Mr Belli had not been particularly accommodating in relation to mental health challenges he had been facing. Mr Belli disputed this and claimed he had been supportive in relation to those challenges. Mr Bell-Inskip claims the termination of his employment was unfair particularly because he was given a period of two weeks to address matters raised by Mr Belli and there were no issues during this two weeks.
• [20] In any event, it appears clear that while a number of matters of frustration had been accumulating for Mr Belli about Mr Bell-Inskip's capacity and conduct, the reason for the termination of his employment was that Mr Belli believed Mr Bell-Inskip had forged medical certificates and in doing so, de-frauded Mr Belli and his business and had thus engaged in serious misconduct.

• [21] At the time of Mr Bell-Inskip's dismissal True Line had 8 employees and there was no dispute that this was so. The SBFDC applies[3].
• [22] Section 388 provides as follows:

(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.

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.

• [24] There was no question that Mr Bell-Inskip's employment was summarily dismissed. As such it is necessary to consider whether the dismissal was consistent with the first part of the Code that deals with circumstances of summary dismissal. A Full Bench of this Commission set out the following approach:

(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[4].

• [25] It is therefore not necessary to determine whether the employer was correct in the belief that it held, that an employee's conduct was sufficiently serious to justify immediate dismissal[5]. However, the belief must be based on reasonable grounds, and often it will be necessary to put the allegations to the employee and consider their response[6].
• [26] The reference to "serious misconduct" in the Code is a reference to the concept as defined by regulation 1.07 of the Fair Work Regulations 2009 (the Regulations)[7]. Regulation 1.07(2)(c) provides that serious misconduct includes, among other things, engaging in fraud during the course of employment.

• [27] I consider that Mr Belli had a genuinely held belief that Mr Bell-Inskip had provided him with two forged medical certificates and had attempted to de-fraud him and his business. This conduct was, for Mr Belli, sufficiently serious to justify the immediate dismissal of Mr Bell-Inskip, taking into account, among other things, that it was contradictory to the express terms of his employment engagement. It involved the putative discovery of not just one forged medical certificate, but two.
• [28] Mr Belli's belief was based on reasonable grounds. This included the information he obtained from the relevant medical clinic, who told him it had not issued the medical certificate and that Mr Bell-Inskip was not its patient. The medical certificates themselves contain consistent errors, and there is a basis for Mr Belli's suspicion. He spoke with Mr Bell-Inskip on the phone, and while it is likely at that point Mr Belli had a concluded view about the matter, he did engage with Mr Bell-Inksip in a manner in which, had there been a mistake or some explanation, it could have been conveyed to Mr Belli. Mr Belli even continued to engage with Mr Bell-Inksip after the conversation by attempting to provide him with copies of the material he had obtained from the medical clinic.
• [29] Having determined that Mr Belli had a genuinely held belief that Mr Bell-Inskip had engaged in conduct sufficiently serious to justify the immediate dismissal, and had reasonable grounds for that belief, it is not necessary for me to determine whether Mr Bell-Inskip actually engaged in the conduct alleged. Nor is it necessary for me to give consideration to the matters which preceded the termination of his employment - whether Mr Belli had other bases upon which to terminate the employment due to capacity or conduct, or failed to properly take into account Mr Bell-Inskip's mental health challenges.
• [30] The dismissal of Mr Bell-Inskip's employment was consistent with the SBFDC. It is therefore not an "unfair dismissal" within the meaning of s 385 of the Act and the application must be dismissed. An Order will be issued conjointly.

[1] Fair Work Act 2009 s 396

[2] Fair Work Act 2009 s 382

[3] Fair Work Act 2009 ss 388(2)(a) and 23

[4] Ryman v Thrash Pty Ltd [2015] FWCFB 5264 [41]

[5] Pinawin T/A RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359 [29]

[7] Ryman v Thrash Pty Ltd [2015] FWCFB 5264 [37]

Printed by authority of the Commonwealth Government Printer