The appearances for the Respondent are amended from 'Ms A. Pierce, for the Respondent' to 'Mr N. Duggal, for the Respondent'.

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for unfair dismissal remedy - application dismissed.

[1] Mr Kumar (Applicant) has made an application under section 394 of the Fair Work Act 2009 ('Act') for an unfair dismissal remedy. By that application, the Applicant contended that he had been dismissed without notice on 16 May 2025 by his employer, Hansen Corporation Pty Ltd (Respondent). Initially, the Applicant expressly sought reinstatement to his position with his former employer, together with an order to restore lost pay.

• [2] The matter proceeded by way of an in-person hearing on 23 October 2024. The Applicant self-represented at the hearing and permission was granted to the Respondent to be legally represented. The Applicant no longer sought reinstatement at the hearing.[1]

[3] Confidentiality orders were made at the commencement of the hearing, to accommodate the fact that some of the evidence to be led in the proceedings involved the names of the Respondent's clients. One consequence of those orders is that parts of the hearing were held in camera, and the transcript for those parts of the hearing remains confidential.

• [4] The Applicant's dismissal was communicated to him verbally at a meeting on 16 May 2025 and confirmed to him in writing on that day.[2] Whilst it is common ground that there was a meeting on 16 May, there is a dispute as to what occurred at the meeting.

• [5] The letter of 16 May stated that the reason for the dismissal was serious misconduct. The conduct allegedly engaged in was not actually set out in the letter, but was the subject of other evidence. For present purposes, it is sufficient to note that the conduct was the subject of a letter of allegation, dated 15 May 2026,[3] which referred to the "falsification or misrepresentation of working hours" and a "failure to fulfil contractual working hours", and notified the Applicant of the meeting to occur the following day and also of his suspension and an investigation.

• [6] The investigation foreshadowed did not proceed as one might have expected. This is because, in response to receiving that letter by e-mail, the Applicant gave notice via reply e-mail at 10:29AM the following day to the effect that he didn't wish to contest any of the matters raised.[4] That communication said, among other things:

a) "I accept the issues Hansen has with me";

b) "My work hours are an issue and I accept the outcome of the Hansen investigation";

c) "discussing it further is psychologically not going to help me";

d) "I don't blame anyone accept [sic] myself";

e) "I have been barely been keeping up with the minimum"; and

f) "I have lost my motivation".

[7] The Applicant's case before the Commission is essentially that none of the above constitutes an admission and that he has done nothing wrong other than perhaps not provide sufficient details on his timesheets, which he says is a matter his manager could have addressed with him in some way other than summary dismissal.

• [8] The Applicant relied on his outline of argument. As this was presented largely as a narrative of events that occurred, it was treated as evidence and marked as such.[5] The Respondent called two witnesses who had prepared statements: Ms Chand, its Chief General Counsel,[6] and Mr Fletcher, Cloud Operations Manager.[7] All witnesses were cross examined.

• [9] The Applicant gave evidence that he commenced employment with the Respondent as a database manager in August of 2019 following an earlier career in IT Services, including in payroll applications and for the Victorian Government. The Applicant said he was unfairly criticised on 15 May 2025 by Mr Fletcher and Ms Pierce, in what he said was his first interaction with its Human Resources personnel. He said the criticism was that he had not been in the office, which he considered unfair because he had been the database manager assigned to 24x7 on-call support in that week and was authorised to work from home as a result. The Applicant understood that, in the absence of being assigned to on-call support, he would have been required to work from the office pursuant to a policy that required a return to the office from 5 May 2025.[8] The Applicant also said that he was criticised in that discussion for being "not motivated enough to work".[9] He said that this call went for about 15 minutes[10] and is adamant that the other matters raised in the allegation letter were not discussed.[11]

• [10] As to the concerns about the Applicant's timesheets and working hours, the Applicant's evidence was that he received "little or no work" since making a complaint against his manager and that there would be no difference in the number of tickets issued to him or his login activity over the last 2 years. The Applicant said that most of the complex client projects he previously worked on were reassigned to database administrators outside of Australia over that period. He said his timesheets were approved by his manager (based offshore), who could have requested more information to be included on them rather than approving them. The Applicant said that prior to his change, he could work 12-13 hours per day.[12] The Applicant provided documentary evidence of the making of that complaint[13] and of the Respondent's Chief Information Officer intervening to "rebuild" the relationship between the Applicant and his then manager in November of 2022.[14] The Applicant said that the Chief Information Officer "kept intervening for me" until February of the following year, as the relationship difficulties persisted.[15] He said that his most recent manager gave him discretion to pick up work when he thought it was necessary, but he was not given any project work.[16] He accepted that he could have been more proactive in seeking out work, but said that he was not a very motivated employee since his difficulties with his prior manager.[17]

• [11] The Applicant said that he went to the office to attend the 16 May meeting that he had been informed of the previous day and arrived around an hour earlier than it was due to start. He said he was told at the meeting that there was nothing to discuss and that he would be terminated without notice. He denied that he was offered an opportunity at that meeting to go through the evidence the Respondent had collected in relation to the allegations raised[18] and denied he made any admissions at that meeting.[19]

• [12] In seeking to demonstrate that there was no valid reason for his termination, the Applicant said that there were records of him receiving almost 500 e-mails a day and that he read his e-mails and took them seriously. He also said that he received lengthy reports and that these took a long time to read. In short, the Applicant's position was that measures of productivity that the Respondent had relied on in terminating him provided an incomplete picture[20] and that, to the extent he was underutilised, this was not a matter that he should be held accountable for. Furthermore, he said that none of the evidence that was provided by the Respondent in these proceedings had been put to him prior to his termination[21], and maintained that the only knowledge he had of any concerns were those raised with him on the phone - that he was not in the office and that was not motivated. This clearly sits uncomfortably with the e-mail he wrote in response to the letter of allegations.

• [13] The events of 15 and 16 May followed a period of annual leave during April of 2025,[22] which the Applicant said meant he had "a huge backlog of reports I had to read" and had a sufficient amount of work to do at that time,[23] comprised of reviewing those reports and e-mails, some at least being e-mails that were sent to all database administrators rather than just to himself.[24] He said his first day back at work after leave was 22 April 2025.[25]

• [14] The Applicant produced some performance review documentation. This suggested that as at around August or February of 2022[26] he had been rated by his manager on almost all measures as "above expectations" or "exceptional", with one rare exception being "ITS Best Practice" where he had been rated as "needs improvement". In connection with this, the Applicant had noted that he needed "to worker harder on Hansen ITIL and Hansen timesheet" and his manager had commented that the Applicant had "let himself down" in not meeting timesheet deadlines.

• [15] As at the date of hearing, the Applicant had not gained alternative employment, nor had he prepared a resume to assist in that process.[27]

• [16] In cross examination, the Applicant agreed that he was required to work 37.5 hours a week and that the Respondent's Code of Conduct[28] was one of the policies that applied to his employment. The Applicant said he had not seen the Respondent's Employee Handbook,[29] but accepted that it must have been available to him on the Respondent's intranet.[30]

• [17] The Applicant said that prior to the events of mid May, he worked a blend of in office hours and work from home.[31] He accepted that when working from home he used a laptop computer issued by the Respondent,[32] but said that he was not required to be logged into the Respondent's systems to do all types of work that he was responsible for - such as reading a report that had been printed[33] or to continue to work on some long term tasks.[34] He did accept that he needed to be logged onto the Respondent's system to access client databases if and when such access was necessary, and to interact with the "ticketing system" and e-mail.[35] However he said that the ticketing system would only allocate work to him if he was assigned to a project, and he was not assigned to any project.[36] Nonetheless, the Applicant agreed that he could use the ticketing system to volunteer to take on work that had not otherwise been allocated.[37]

• [18] The Applicant was taken to some documents generated by the Respondent from records made by its IT systems.[38] The Applicant said that although that information suggested that he did not log in to the Respondent's systems at all on 23 April, this was explicable because he was reading a long, complex report that came out when he was on leave. He said he read a hard copy of that report over the course of a week and then created his own report for his team and shared it.[39] The Applicant was then shown his entries from the "Tempo" time recording / time sheet software that day that he had not logged on, as asked to explain them. The Applicant agreed that whilst he had assigned time to working for different clients,[40] some of the work noted in the time sheet involved e-mails that he could access on his mobile phone without logging into the Respondent's systems[41] and some of the work was in relation to long term projects that did not require logging into the system and submitting work on the day the entries were made.[42] Nonetheless, the Applicant said that he "cannot argue"[43] with the proposition that completing a timesheet for 23 April allocating work across different clients cannot be justified if he did not even log in to the Respondent's systems.

• [19] Cross examination of the Applicant by reference to those records continued with respect to his activities on 29 April 2025. The Applicant agreed that at most he was logged in or performing work on his laptop for 10 minutes from 7:46AM on that day,[44] but created a time record for 7.5 hours work through the Tempo system.[45] The Applicant explained these entries on the basis that they were standard for regular checks and updates that he does on "the few projects that I'm assigned to".[46] This is self-evidently inconsistent with his earlier evidence that he was not assigned to any projects.[47] The Applicant rejected the suggestion that the Respondent's client might be charged for the time that was allocated in his time records to performing work for their benefit[48] and rejected the suggestion that his time records for 29 April were falsified.[49]

• [20] With respect to 6 May 2025, the Applicant agreed that he first logged into the Respondent's systems at 9:55AM and last logged in at 2:34PM and recorded 7.5 hours of time through the Tempo System to different line items. He did not agree that those time entries were a falsification.[50] Similarly, when questioned about his activities on 30 April 2025, the Applicant agreed that he first logged in at 9:24AM and last logged in at 1:48PM, recorded 7.5 hours of working time and did not accept those time records were falsified.[51]

• [21] More generally, the Applicant refused to accept that the lack of motivation that he had disclosed was the cause of him not logging into the Respondent's systems.[52] The Applicant's evidence was that the removal of him from projects by his former manager was never remedied by his later manager, who had visibility over his workload.[53] When it was suggested to the Applicant that one of the things he could have done to increase his output would have been to volunteer to address some tickets through the ticketing system, the Applicant said he had been instructed not do that because that was work that only the offshore team and the Australian based junior database administrators should perform.[54] The Applicant maintained that his patterns of working had not altered in the last two years and that the Respondent was fully aware of this and had raised no concern about it.[55] The Applicant said "The fact that I hang around in Hansen all these years and doing nothing, and that is, in part, my problem....But it doesn't mean I should be summarily terminated for that".[56] The Applicant also indicated that notes taken of meetings between himself and his former manager would provide clarity of the work that he was expected to perform and was performing.[57]

[22] Ms Chand gave evidence that in early May of 2025 she became aware of concerns raised by Mr Fletcher about the Applicant recording full days of work that contradicted data concerning his logins and work activity. Ms Chand says she discussed those matters with the HR Manager, Ms Pierce, who has since left the organisation. Ms Chand said she formed the view that there was a potential case of misconduct that needed to be answered and agreed with Ms Pierce that it was appropriate to have a meeting with the Applicant to put the allegations to him. Ms Chand said she did not attend any meeting with the Applicant relating to these matters, but did review the letter of allegations, a summary of the meeting that had occurred and the letter notifying the Applicant of termination.

• [23] Ms Chand's evidence, that the Applicant was given an opportunity to review the evidence in support of the allegations at the meeting on 16 May,[58] needs to be viewed in light of the fact that she did not attend that meeting. The Applicant invited Ms Chand to accept in cross examination that there was no formal meeting on 16 May, however she did not accept this and said she had been advised that he had been given the opportunity to review the evidence at that meeting.[59]

• [24] Under cross examination, Ms Chand did not accept that the reason the Applicant's employment was terminated was because of his availability in the office during work hours.[60] She conceded that the Respondent had not looked to see whether his timesheets had been consistent over a two year period but rather looked only to his activities on particular days.[61] Ms Chand accepted that the Applicant's timesheets had been approved by his manager, but was unfamiliar with the process for doing so.[62] Ms Chand said she did not speak to the Applicant's manager about the timesheets, nor was she aware of whether others had, in connection with raising the allegations of misconduct against him.[63] Similarly, Ms Chand did not know whether the Applicant's manager had spoken to the Applicant about any concerns regarding the number of tickets he had solved, his working hours or had suggested that "thinking" time was not work.[64]

• [25] Mr Fletcher said he had participated in both the initial discussion with the Applicant on the 15th of May and in the meeting on 16 May. He said that his position of Cloud Operations Manager meant that he was the manager of the Applicant's manager and a people manager of technical teams, including the database team in which the Applicant was situated.[65]

• [26] According to Mr Fletcher, work could be allocated to the Applicant mainly in three ways: via the ticketing system, via a project managements system and by direct allocation by managers. He said the laptop issued by the Respondent was required for performing the Applicant's role and there was "not much" that could be done without the laptop because connecting into the Respondent's systems was necessary[66] and that he had to be logged in to his laptop to perform his duties.[67] Mr Fletcher said that the Applicant performed his role remotely and it was the Applicant's choice to do so.[68]

• [27] Mr Fletcher was in a position to give evidence about how the information entered into the time recording system was used. He said that the work the Respondent performed for its clients was priced based on an allocation of resources and the time recording allowed the Respondent to measure its actual allocation against what had been priced, and therefore make a judgement about whether the work was profitable.[69]

• [28] Mr Fletcher said the origin of his concerns regarding the Applicant's work were his failures to attend online meetings on time. On the first occasion this occurred in late April of 2025, Mr Fletcher said he messaged the Applicant to inquire of his whereabouts and the Applicant then joined the meeting 10 minutes later. Then, the following day, the Applicant was again late to a meeting (apparently a meeting in the same series of meetings) so Mr Fletcher messaged him and 10 minutes later he joined the meeting. These events led Mr Fletcher to inquire into what the Applicant was doing during business hours.[70] The product of those inquiries was a set of documents that Mr Fletcher created which related to activities on 23, 29 and 30 April 2025 and 6 May 2025[71] (which the Applicant had been taken to in cross examination). That set of documents had been drawn from systems called Microsoft Entra, Zscaler, Sentinel 1 and Tempo. Mr Fletcher said that Microsoft Entra recorded when the Applicant's Windows based laptop was logged in, for example for the first time during the day or when it had been logged in to again after being closed.[72] Zscaler was a product that tracked web access on the laptop.[73] Sentinel 1 was described as anti-virus software which also monitors keystrokes and applications on the laptop.[74] Tempo is electronic time sheet software.[75]

• [29] Mr Fletcher said that the tasks that the Applicant had entered into Tempo on 23 April 2025 could "Absolutely not"[76] have been performed on that day, in light of the available data from the systems referred to above - which had recorded no data on that day. Similarly, in respect of 29 April 2025, Mr Fletcher said that it was "not possible"[77] for the Applicant to have performed the work that he claimed to have done in the Tempo system, having regard to the data from those other sources. For that day, the Zscaler system did record 10 minutes of activity, but Mr Fletcher said that could be web sites refreshing while the laptop was running, even if it hadn't been logged in that day.[78] In relation to 6 May 2025, Mr Fletcher said that the Microsoft Entra, Sentinel 1 and Zscaler data were consistent with there being activity on the laptop between 9:55AM and 2:34PM and that it was "not possible"[79] for the 7.5 hours of work entered into the Tempo system to have been performed. In relation to 30 April 2025, Mr Fletcher said the data was consistent with the laptop being logged in at 10:59 AM and not engaged with for several hours until between 4:11PM and 5:07PM. Mr Fletcher said it was "not at all" possible that the Applicant could have performed the 7.5 hours client work that had been entered in the Tempo system on that day.[80] Further, Mr Fletcher rejected the proposition that the Applicant could have been productively working his contracted hours not logged in to the system and reading hard copy reports.[81]

• [30] Mr Fletcher said he made sure the letter provided to the Applicant on 15 May 2025 was accurate and factual. He said it was not true that the allegation against the Applicant was that he wasn't working from the office,[82] and that he knew the Applicant was working on-call and working from home and did not have any concerns about working from home being inappropriate.[83] He was taken to the Applicant's written response to the e-mail that had attached that letter and to a response that Ms Pierce had written.[84] The message from Ms Pierce relevantly said "Are you available to have a call with Chris and myself now? I can send you a link to join a teams meeting and we can discuss your email". Mr Fletcher said that Ms Pierce's e-mail was promoted by a conversation between them, because the Applicant's email, referred to at paragraph [6] above, had referred to speaking to a therapist and wanting to deal with things in a "Less stressful[85]ay".85 Mr Fletcher's evidence was that he believed it would be best for the Applicant's mental health if an opportunity was given to him to bring the meeting forward. The Applicant's response to this proposal was to say that he was "starting for the city now" and "can be in the office by 1[86]30".86

• [31] Mr Fletcher said he attended the meeting on 16 May 2025 with the Applicant and Ms Pierce. He said Ms Pierce read the allegations that had been set out in the letter and that the Applicant replied with an acknowledgement and acceptance of the allegations. Mr Fletcher said Ms Pierce then offered to show the Applicant the evidence against him, which was the same set of documents referred to in paragraph [28] above. Mr Fletcher said the Applicant didn't want to see the evidence, and Ms Pierce then notified him of summary [87]rmination.87

• [32] Under cross examination, Mr Fletcher was asked about the printing and reading of an "Oracle CP" document that the Applicant suggested was 500 pages long and took three days to read from a printout. Mr Fletcher said the output that followed the reading of the document would require connectivity to the Respondent's system, and that on the days the Applicant's activities had been examined the Applicant had recorded his time against clients. Mr Fletcher stood by his position that to perform work for clients that the timesheets represented the Applicant had done, the Applicant would have needed to have been connected to the Respondent's systems.[88] Mr Fletcher said that time spent on reading reports of this nature would more appropriately have been recorded as "Business as usual" or "Training".[89] Mr Fletcher also said that he would find it "very hard to believe" that the Applicant had been approved by his manager to read a report and not log in for a whole day.[90]

• [33] Mr Fletcher was invited in cross examination to accept that when the Applicant arrived at the workplace for the 16 May meeting, he was told by Mr Fletcher that there was no need for a formal meeting, that his employment was being summarily terminated and there was nothing to discuss. Mr Fletcher did not accept any of those propositions.[91]

• [34] Like Ms Chand, Mr Fletcher said he did not speak to the Applicant's direct manager about his concerns. This was explicable, in Mr Fletcher's view, because the manager was in fact a technical lead rather than a people manager, with very little experience in investigations of the type required.[92] Mr Fletcher was prepared to accept that the Applicant's manager had signed his timesheets and discussed the Applicant's work with him during team meetings.[93] However, Mr Fletcher also said that the input of the Applicant's manager was not required to form the view that the work claimed to have been performed could not have been performed.[94] Mr Fletcher rejected the estimates the Applicant gave of the number of tickets and change requests he attended to and said that the Applicant was "an average worker" in that regard.[95]

• [35] April 23rd was the first of the four days in relation to which the Respondent had obtained details of the Applicant's system interactions. It is to be recalled that the Applicant's evidence was that he returned from leave the day prior. The proposition that the Applicant invited Mr Fletcher to accept was that upon the Applicant's returning from leave, he spent three days reading an "Oracle CP report" that was 500 or 200 pages long.[96] On the Applicant's version of events then, 23 April would be day 2 of reading that report.

[36] There is no dispute that the Applicant did not log in to his laptop that day. However, in attempting to explain the activities that had been recorded on his timesheet for that day, the Applicant said that he was writing and responding to e-mails from his phone and working on long term projects. This departs from the premise that he had been reading a report. It also departs from the Applicant's evidence that he was not assigned any project work.

[37] The Applicant's concession in cross examination was that he "cannot argue" with the proposition that completing a timesheet for 23 April allocating work across different clients cannot be justified if he did not even log in to the Respondent's systems.. Whilst I am not certain of precisely what the Applicant was doing on the day, I am satisfied that he did not perform the client work that he indicated he did perform on his timesheets.

[38] I note that I provided an opportunity for the parties after the hearing to make written submissions concerning some documents that the Applicant considered relevant but had not been able to obtain from the Respondent before the commencement of the hearing. As part of that process, the Applicant provided a copy of the "Oracle CP" report he had referred to in the hearing. It is a 72 page document, containing many hyperlinks. Whilst it is dated April 2025, the copy provided bears a header that suggests it was printed on 27 October, so cannot be a scan of the actual physical hard copy that the Applicant said he utilised in April of 2025. I also observe that during the hearing, the Applicant utilised and admitted to utilising an electronic copy of the hearing book, rather than printing it. Whilst this may raise some doubts as to whether the report took as long to read as the Applicant said it did, or whether, if it was read, it was read on a device rather than a hard copy, I am prepared to give the Applicant the benefit of the doubt in that respect. However, that does not provide an excuse for misrepresenting his work activities in his time sheets.

[39] This was the second day in relation to which the Respondent had obtained details of the Applicant's interactions with their systems. In light of the Anzac Day public holiday, it was the Applicants fifth day at work after leave, so the three days he says it took him to read the report referred to had passed.

[40] I have found the Applicant's explanation for the gaping chasm between the 10 minutes of activity noted in the Respondent's system and the 7.5 hours of timesheet time wholly unconvincing. I note that the explanation of work on projects is inconsistent with the evidence that there was no such project work. I accept Mr Fletcher's evidence that it was not possible for the Applicant to have done the work that he claimed on his timesheet to have done that day.

[41] This was the third day in relation to which the Respondent had obtained details of the Applicant's interactions with their systems. Whist the Applicant conceded that he first logged in at 9:24AM and last logged in at 1:48PM on that day, there is no support in the evidence prepared by the Respondent that this is correct other than in a table summarizing the "Key Example Days", which is not in fact representative of the actual data presented elsewhere in the same document as to the Applicant's interactions with the Respondent's systems on that day. Rather, I consider the correct position is, as was Mr Fletcher's oral evidence, that the laptop was logged in at 10:59 AM and not engaged with for several hours until between 4:11PM and 5:07PM. Mr Fletcher said it was "not at all" possible that the Applicant could have performed the 7.5 hours client work that had been entered into the Tempo system on that day. I accept that evidence.

[42] This was the fourth and final day in relation to which the Respondent had obtained details of the Applicant's interactions with their systems. The Applicant accepted he first logged into the Respondent's systems at 9:55AM and last logged in at 2:34PM and also recorded 7.5 hours of time through the Tempo System to different line items. The latter date was not supported in the data provided by the Respondent, rather it indicated that the last login on that day was at 2:19PM, although Mr Fletcher said that the evidence was consistent with there being some activity on the laptop until 2:34PM. Whilst the Applicant was not prepared to accept his timesheet entries were falsified, I accept Mr Fletcher's evidence that it was "not possible" for the 7.5 hours of work entered into the Tempo system to have been performed by the Applicant on that day.

• [43] There were two significant developments on 15 May: Mr Fletcher had a verbal conversation via Microsoft Teams with the Applicant, and forwarded to him a letter of allegations. I prefer the evidence of Mr Fletcher as to what was discussed on that call, namely that there were serious allegations that had been raised and that they would be sent to him in an e-mail.[97] The suggestion by the Applicant that the only matter that was discussed was that he had not been in the office is not credible. The Applicant had a legitimate reason to not be in the office, and Mr Fletcher had no argument with that or with the proposition that it was the Applicant's choice as to whether he would work from home or from the office. To suggest that there was a conversation criticising the Applicant for not being in the office is implausible in the face of the distinct allegations that had been raised. As to the letter of allegations, it speaks for itself. It notified the Applicant of the allegations of "falsification or misrepresentation of working hours" and "failure to fulfil contractual working hours", notified him of a meeting, encouraged him to bring a support person to that meeting, and suspended him from duty.

[44] The two significant events on this day were the Applicant responding to the e-mail from Mr Fletcher that had attached the letter of allegations, and a meeting occurring between the Applicant, Mr Fletcher and Ms Pierce.

[45] Once again, the Applicant's written response to the e-mail on that day speaks for itself. During the hearing, the Applicant sought to characterise that response in ways that were implausible.

• a. He said that the e-mail he wrote was partly in response to what was raised with him on the call the previous day,[98] which he had said was limited to criticism for not being in the office. I have made findings about what occurred during that conversation in paragraph [43] above. But even if the Applicant were correct about that, the content of his response in some ways is inconsistent with an understanding that not being in the office was the issue he was responding to. Why would the Applicant say "..my work hours are an issue and I accept the outcome of the Hansen investigation", "I have barely been keeping up with the minimum" and "I don't blame anyone except myself" if the concern was about attending the office rather than working from home? When one considers that the Applicant was resolute that he was entitled to work from home on the day the call was placed, because he had been doing on-call work, the characterisation that the Applicant now seeks to place on his response seems all the more illogical;

• b. The Applicant submitted and gave evidence to the effect that the letter of allegations could be fairly understood as an invitation to a meeting with "bullet points" that were about him not attending the office.[99] This is a fanciful submission. The most that can be said is that the attempt to recast his response to the letter by reference to what he claims he understood it meant, carries with it an admission that it was in fact read. Similarly, for the Applicant to suggest that an allegation of "falsification or misrepresentation of working hours" could not be understood as relating to timesheetsis absurd.[100]

• [46] As to the meeting that occurred on that day, I prefer the evidence of Mr Fletcher. Whilst it is not in dispute that the meeting took place earlier than the 2PM timeslot that had been indicated in the allegations letter, I am satisfied on the evidence that the rescheduling of that meeting was agreed. Whilst the Applicant suggested through his questioning that the rescheduling of the meeting denied him the opportunity to have a support present,[101] his agreement to that course of action is inconsistent with that characterisation. Additionally, there is no evidence that the Applicant had in fact asked any support person to attend the meeting with him. I am satisfied that the Applicant was offered an opportunity to engage with the evidence the Respondent had prepared in support of the allegations and did not take up that opportunity. I am satisfied that the Applicant's participation in the meeting was consistent with the tone of the e-mail response provided that morning, in that he acknowledged, accepted and did not wish to contest any of the matters raised against him.

[47] Under section 396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

[48] The application was made on 5 June 2025. There is no dispute that the application related to employment that came to an end on 16 May 2025. Nor is there any dispute that the employment ended by way of a dismissal within meaning of section 386(1)(a) of the Act taking effect on that day. The application was brought within the required period.

[49] Similarly, there was no dispute that the Applicant was at all relevant times protected from unfair dismissal. The Applicant had worked on an ongoing basis for the Respondent since 2019, and his earnings were below the high income threshold at the relevant time.

[50] The Small Business Fair Dismissal Code has no relevance to the matter, as the Respondent at the relevant time employed far in excess of 15 employees. There was no suggestion that the dismissal was a case of genuine redundancy. The Applicant was dismissed for the conduct the Respondent found he had engaged in.

Was the dismissal harsh, unjust or unreasonable?

[51] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(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.

• [52] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[102]

[53] I set out my consideration of each below.

Was there a valid reason for the dismissal related to the Applicant's capacity or conduct?

• [54] In order to be a valid reason, the reason for the dismissal should be "sound, defensible or well founded"[103] and should not be "capricious, fanciful, spiteful or prejudiced."[104] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[105]

• [55] Where a dismissal relates to an employee's conduct, the Commission must be satisfied that the conduct occurred and justified termination.[106] "The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination."[107]

• [56] In this case, the position of the Respondent was that the Applicant engaged in serious misconduct. In support of the proposition that the falsification of timesheets could amount to serious misconduct, the Respondent relied on the decision of Deputy President Lake in Budgen v Verifact Traffic Pty Ltd.[108] In any event, it is elemental that dishonesty in representing that work has been performed, when it has not been performed, is destructive of the employment relationship and fundamentally incompatible with the trust and confidence necessary with the maintenance of that relationship. I am persuaded on the totality of the evidence that the Applicant falsified his working hours on multiple time sheets and I consider this both a valid reason for dismissal and conduct that justifies summary dismissal.

Was the Applicant notified of the valid reason?

• [57] Proper consideration of s.387(b) requires a finding to be made as to whether the applicant "was notified of that reason". Contextually, the reference to "that reason" is the valid reason found to exist under s.387(a).[109]

• [58] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[110] and in explicit[111] and plain and clear terms.[112]

[59] The Applicant was given notice in writing by a letter that was e-mailed to him on 15 May 2025.

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

[60] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee's employment.[113]

• [61] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.[114] Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[115]

[62] The Applicant first responded to the allegations made against him in writing, in the terms set out in paragraph [6] above. He was asked to attend a meeting to discuss the allegations. He agreed to reschedule that meeting and participated in the meeting, but chose to not review or contest the evidence that had been brought to the meeting for discussion.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

[63] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present. There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

"This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them."[116]

[64] The letter of 15 May 2025 encouraged the Applicant to bring a support person to the meeting that was scheduled for the following day. The Applicant did not bring a support person, and brought no evidence to suggest that any support person had been refused.

Was the Applicant warned about unsatisfactory performance before the dismissal?

[65] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.

To what degree would the size of the Respondent's enterprise be likely to impact on the procedures followed in effecting the dismissal? To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent's enterprise be likely to impact on the procedures followed in effecting the dismissal?

[66] The Applicant made no submissions about these issues.

[67] The Respondent submits these are neutral considerations in this matter. I agree. Ms Chand's evidence was that there was involvement from both herself, as General Counsel, and Human Resources specialists in bringing this matter forward.

[68] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

• [69] I found the Applicant's efforts to justify completing his timesheets in the way he did to be entirely unsatisfactory. The Applicant's suggestion that his manager's approval of his time sheets exonerated him,[117] or that his timesheets had been consistent for years[118] do not take the matter very far when the key allegation here is that the entries he made were false. It matters not how many people were misled by that conduct, or for how long. Furthermore, the Applicant's attempts to characterise this as merely a failure to put sufficient details on his timesheet and to suggest that it was his manager's fault for not telling him to add more details,[119] fails to appreciate that his own deception is what made any intervention unlikely. It is also important to point out that the Applicant had been criticised in a performance review document that he believed to be from either February or August of 2022 for not completing his timesheets on time.[120] Notwithstanding this, inquiries were made of the Applicant twice in December 2022 in relation to timesheets that had not been completed on time.[121] In cross examination, the Applicant accepted the proposition that he wasn't being given much work, wasn't very motivated and just did what he could to "cobble together" a timesheet.[122] The Applicant's appeal in his closing submissions for a "second chance"[123] thus failed to appreciate that he was on notice that the Respondent considered time sheets important, and he should have devoted more care and attention to them.

[70] The Applicant's initial response to the allegations was to not contest them. That response was wise. His decision to bring and persist with these proceedings was ill advised.

[71] For completeness, I have found the additional submissions of the parties on the documents provided at a late stage to be unhelpful. The most that can be said is that the notes of the meetings between the Applicant and his manager say nothing of him being asked to, or indicating that he was, reading reports. They are also consistent with the Applicant not raising any concerns about his lack of duties at those meetings.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

[72] Each matter specified in section 387 as relevant must be considered and given due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[124]

[73] I have found a valid reason for dismissal and no reasons to suggest that the manner in which the allegations were progressed with the Applicant raised any unfairness.

[74] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable.

• [75] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act. The Applicant's application is therefore dismissed. An order giving effect to this decision is published separately.[125]

• [76] At the outset of the hearing, I put the parties on notice of my expectation that the Respondent would give notice to me and the Applicant if matters arose in the conduct of the hearing that were material to the availability of a costs order.[126] No such notice was given.

[1] PN1634-1639 (confidential transcript).

[11] PN603-604 (confidential transcript).

[17] PN619-624 (confidential transcript).

[18] PN686-687, 709-710 (confidential transcript).

[41] PN 440-472 (confidential transcript).

[42] PN489-492 (confidential transcript).

[45] PN534-536 (confidential transcript).

[49] PN543-544 (confidential transcript).

[50] PN569-576 (confidential transcript).

[51] PN580-584 (confidential transcript).

[53] PN635-637 (confidential transcript).

[54] PN648-649, 660-663 (confidential transcript).

[56] PN682-683 (confidential transcript).

[57] PN190-199. The records of these meetings were provided after the hearing and the parties were given an opportunity to make submissions about them.

[83] PN1254-1270 (confidential transcript).

[91] PN1289-1304 (confidential transcript).

[92] PN1348-1355 (confidential transcript).

[93] PN1386-1389 (confidential transcript).

[95] PN1431-1439 (confidential transcript).

[96] PN1192-1198, 1221-1228 (confidential transcript).

[98] PN1613-1614, 1830 (confidential transcript).

[99] PN674, 699, 1480-1482, 1600-1614, 1829-1830, 1839 (confidential transcript).

[100] PN699 (confidential transcript).

[101] PN1305-1319 (confidential transcript).

[102] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[103] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373.

[105] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, 685.

[106] Edwards v Justice Giudice [1999] FCA 1836, [7].

[107] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

[108] [2023] FWC 2224.

[109] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

[110] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

[111] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

[113] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

[114] RMIT v Asher [2010] FWAFB 1200; (2010) 194 IR 1, 14-15.

[115] Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1, 7.

[116] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

[117] PN1566 (confidential transcript), PN842-856.

[119] PN1625-1627, 1647, 1836 (confidential transcript).

[122] PN629-633 (confidential transcript).

[123] PN1647, 1838 (confidential transcript).

[124] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].

[125] PR796951.

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