Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application to remedy unfair dismissal - section 394 - Was the Respondent a small business - Was the Small Business Fair Dismissal Code Complied with - Serious Misconduct - Code complied with - Application dismissed

• [1] Mr Karl Drabsch made an application under s 394 of the Fair Work Act 2009 (FWA) for the Commission to remedy an unfair dismissal on the basis that he had been summarily dismissed by The Trustee For Milne Dirubbo Family Trust (Milne Dirubbo).

• [2] Milne Dirubbo objected to the application on the basis that they were a Small Business[1] and the Small Business Fair Dismissal Code had been complied with.

• [3] I am satisfied that Mr Drabsch was protected from unfair dismissal based on the material before me.[2]

• [4] It is not in dispute that Mr Drabsch had been employed by Milne Dirubbo since 8 August 2023.[3]

• [5] Milne Dirubbo operate a Saddlery and Fodder Store, with a Post Office.

• [6] At the time of the dismissal Mr Drabsch was employed part-time as a Logistics Manager, working the following hours:

• Tuesday 9:00am-5:30pm;
• Thursday 9:00am-5:30pm;
• Friday 9:00am-5:30pm; and

• [7] On weekdays Mr Drabsch spent time out of the store doing deliveries but on Sundays from around March 2025 he was the sole employee at the store.[5]

• [8] Mr Drabsch was paid an hourly rate for the hours he worked.[6]

• [9] It is not in dispute that Mr Drabsch was dismissed by Milne Dirubbo on 27 May 2025.

• [10] At the time of the dismissal, on 27 May 2025, Milne Dirubbo had no more than 7 employees.[7]

• [11] I find that Milne Dirubbo is a small business as defined by s. 23 of the FWA.

• [12] Section 396 of the FWA requires the Commission to determine whether the dismissal was consistent with the Small Business Fair Dismissal Code (the Code) before considering the merits of the application.

• [13] Accordingly, it is necessary to determine whether the Code was complied with.

Was the Small Business Fair Dismissal Code Complied with?

• [14] The Code contains the following regarding serious misconduct and summary 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.

• [15] Section 12 of the FWA defines "serious misconduct" as having "the meaning prescribed by the regulations." Regulation 1.07 of the Fair Work Regulations 2009 (Regulations) provides:

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

(2) For the purposes of subregulation (1), conduct that is serious misconduct includes the following conduct of an employee:

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

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

(ii) the reputation, viability or profitability of the employer's business;

(c) engaging in theft, fraud, assault or sexual harassment in the course of the employee's employment;

(e) refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.

(3) Paragraphs (2)(c) to (e) do not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

• [16] Where an employee has been dismissed by a small business and the Code is applicable, the Commission does not determine whether there was a valid reason for the dismissal. The test in assessing whether the dismissal complied with the Code where the employee was [8]dismissed can be described as this:[8]

• It must be established by the Employer that at the time of the dismissal the Employer held a belief that the employee's conduct was sufficiently serious to justify immediate dismissal;
• That there were reasonable grounds in the mind of the Employer to hold that belief; and
• Either at the stage of forming that belief, or prior, the employer carried out a reasonable investigation into the matter.

• [17] Milne Dirubbo summarily dismissed Mr Drabsch on 27 May 2025 for leaving work early on at least 3 occasions, without providing any notification and subsequently receiving payment for the hours he had not worked.

• [18] Mr Nicola Dirubbo, Director, gave evidence for Milne Dirubbo.

• [19] Mr Drabsch provided witness evidence in support of his application.

• [20] On Monday 26 May 2025 several customers advised Mr Dirubbo that they had been unable to access the shop the day prior, Sunday 25 May 2025, as it had been closed early.[9]

• [21] Upon Mr Dirubbo being told by customers that the store had been closed nearly an hour early and several customers "met up at one of our competition",[10] he checked the store's security footage.

• [22] No footage was provided to the Commission or Mr Drabsch but Mr Dirubbo gave evidence that the footage showed Mr Drabsch leaving work prior to his finish time on 3 separate Sundays in the 5 weeks prior to 26 May 2025.[11]

• [23] Mr Dirubbo said that on two occasions Mr Drabsch was seen in the footage leaving 30 minutes early and the last occasion showed him leaving 45 minutes early.

• [24] Further investigations were undertaken by Mr Dirubbo including checking the sales history on Sundays to see if there were sales made after 2:30pm on other occasions.[12]

• [25] Mr Dirubbo told the Commission that prior to confronting Mr Drabsch about leaving early on Tuesday 27 May 2025, he checked the Fair Work Commission's website for information "to see where I stood" and "followed those steps" set out in the Small Business Fair Dismissal Checklist.[13]

• [26] Mr Drabsch does not dispute that he left early on 3 occasions on a Sunday when he was the only employee at the store, but said "it was literally isolated to these three incidents".[14]

• [27] Two occasions Mr Drabsch says were due to an illness caused by the fumes of the forklift and one, on 25 May 2025, was to take his daughter on a train ride because she was going through a difficult time.

• [28] It is contended by Mr Drabsch that the first two occasions he left 10-15 minutes early and on the final occasion around 30 minutes prior to the store's closing time.

• [29] Mr Drabsch said he considered this an "insignificant amount of time".[15] His evidence was that there were occasions that he "did deliveries on my way home"[16] without seeking payment and thought "it just kind of balanced out".[17]

• [30] In considering Mr Drabsch's evidence as a whole, I observe inconsistencies with the reasons provided for leaving his shifts early on the 3 occasions in question.

• [31] Mr Drabsch's explanation for why he left early only on Sundays was that the fumes from the forklift burning oil made him feel unwell,[18] but also stated "because it was quiet, during the week there is no need to leave early because I'm flat out during the week."[19]

• [32] Additionally, his evidence was that he did not operate the forklift.[20] I am unable to accept that the forklift fumes caused him to become unwell on two Sundays when he was the only employee in the store and by his own admission, he did not operate the forklift.[21]

• [33] As a result of these inconsistencies, I have treated Mr Drabsch's evidence on these points with caution and prefer Mr Dirubbo's evidence where it directly contradicts Mr Drabsch's.

• [34] Mr Drabsch accepted that there were occasions when he left early and did notify Mr Dirubbo, demonstrating an understanding that there was an expectation of him to notify Mr Dirubbo when leaving early. [22]

• [35] Mr Dirubbo's concerns with Mr Drabsch leaving early without notification were that Milne Dirubbo was not given the opportunity to have another employee cover the rest of the shift, allowing the store to remain open for sales.[23]

• [36] This had the potential and actual effect of customers going to a competitor, impacting the reputation of the store and losing customers due to unreliability.[24]

• [37] Additionally, Mr Dirubbo asserted that Mr Drabsch' conduct amounted to fraud as a result of obtaining the benefit of payment for hours not worked.

• [38] It is not necessary for me to determine whether the conduct amounts to fraud, simply whether it was sufficiently serious to justify immediate dismissal.

• [39] The parties have conflicting recollections of the conversation that took place when Mr Dirubbo questioned Mr Drabsch about leaving early.

• [40] I found Mr Drabsch's recollection of the conversation on 27 May 2025 didn't follow a coherent sequence of events. Where his evidence directly conflicts with Mr Dirubbo, I prefer the evidence of Mr Dirubbo for this reason, as well as finding Mr Dirubbo's evidence to be more consistent.

• [41] Mr Dirubbo told the Commission that he spoke to Mr Drabsch on 27 May 2025 so Mr Drabsch could "tell me what was going on, why he had a valid reason"[25] and give "him a chance to talk to me".[26]

• [42] In doing so, Mr Dirubbo approached Mr Drabsch when he presented for work on Tuesday 27 May 2025.

• [43] A preferable way to raise the issue with Mr Drabsch would have been to put him on notice of the concerns regarding his conduct and to provide him an opportunity to give considered responses. However, I accept that the size of the Respondent's business and resources likely had an impact on that process.

• [44] When Mr Drabsch was confronted about leaving early on the Sundays, I accept Mr Dirubbo's evidence that Mr Drabsch denied leaving early on the two occasions prior to 25 May 2025.[27] Mr Dirubbo stated, "...he denied the other two, even though I said they had cameras that I could, you know, prove it and he denied it a second time".[28]

• [45] Mr Dirubbo described Mr Drabsch's response as dishonest[29] and said "If he is going to lie to me about it too then how can I trust him? How can I try and work with him? That was it, that was the final straw".[30]

• [46] When asked to return the keys to the store, Mr Drabsch handed them to Mr Dirubbo and left, understanding that he had been dismissed.[31]

• [47] It is clear from Mr Dirubbo's evidence that the combination of Mr Drabsch leaving early without notifying him, this only occurring on a day when he was the sole employee at the store, the denial of leaving early and the impact that these actions had on Milne Dirubbo resulted in Mr Dirubbo forming the belief that Mr Drabsch's conduct was serious enough to justify summary dismissal.

• [48] I find this to be a reasonable belief having considered the evidence before me.

• [49] In considering the materials before me, I find that Milne Dirubbo complied with the Small Business Fair Dismissal Code.

• [50] Upon notification by customers of the store's early closure, Milne Dirubbo undertook an investigation into the conduct of Mr Drabsch. I consider reviewing accessible video footage, checking the sales records and asking Mr Drabsch about the conduct to amount to a reasonable investigation, combined with the complaints received from customers about the store's closure.

• [51] The result of that investigation was that Milne Dirubbo formed the belief that Mr Drabsch had left early without providing any notification with the intent of concealing it and receiving payment for hours not worked.

• [52] Milne Dirubbo held a genuine concern that customers were going to their competitors as a result of Mr Drabsch's actions in closing the store early. Mr Drabsch's lack of communication about leaving early deprived Milne Dirubbo of the opportunity to cover the remainder of the shift to allow the store to remain open.

• [53] It was a reasonable belief held by Milne Dirubbo that the conduct engaged in by Mr Drabsch was serious enough to warrant immediate dismissal, in the context of the specific circumstances in this matter and the definitions in both the Code and the Regulations.

• [54] Accordingly, I am satisfied that Milne Dirubbo, in dismissing Mr Drabsch, complied with the Code. Having found that the Code has been complied with, it is not necessary to determine whether the requirements set out in s 387 have been met.

• [55] Mr Drabsch's application to remedy an unfair dismissal under s 394 of the FWA is dismissed. An order giving effect to this decision will be issued in conjunction with its publication.[32]

N Dirubbo on behalf of the Respondent, The Trustee For Milne Dirubbo Family Trust.

[2] s. 382 of the FWA, [Audio Recording of Determinative Conference at 10:07 and 12:27-12:37 re Award coverage].

[3] Requirements in s. 382 (a) of the FWA met.

[4] Audio Recording of Determinative Conference at 10:57-11:07.

[8] Pinawin v Domingo [2012] FWAFB 1359 at [23]- [29].

[10] Audio Recording of Determinative Conference at 27:44-27:58.

[11] Ibid at 47:22 -47:38 and DHB at p 41.

[13] Audio Recording of Determinative Conference at 1:01:13-1:02:12.

[16] Ibid at 21:04-21:26 and 1:07:29-1:07:36.

[18] Form F2 Application at 2.1, DHB at p 5 and Audio Recording of Determinative Conference at 47:42-47:55.

[19] Audio Recording of Determinative Conference at 49:15.

[21] Ibid at 16:30-16:50 and 1:43:53-1:44:14.

[24] Ibid at 39:06-39:20 and DHB 41-42.

[25] Audio Recording of Determinative Conference at 29:23-29:25.

[30] Ibid at 27:23,30:33-30:48 and 1:32:37-1:32:43.

[32] PR792373.

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