//
[2025] FWC 3372
General information, not legal advice.
Fair Work Commission
2025-11-11
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Application for unfair dismissal remedy - dismissal for reasons related to unsatisfactory performance - dismissal found not to be harsh, unjust or unreasonable - application dismissed
[1] This decision determines an application commenced by Mr Ryan Bennett (the Applicant) under section 394 of the Fair Work Act 2009 (FW Act) against his former employer, C21PA Pty Ltd (CMP / the Respondent). Mr Bennett contends that he was unfairly dismissed and seeks that the Fair Work Commission (Commission) order a remedy for the unfair dismissal. The remedy sought by Mr Bennett was an order for the payment of compensation.
[2] The Respondent opposed the application and submitted that Mr Bennett's dismissal was not harsh, unjust or unreasonable.
[3] On 28 August 2025, the application was the subject of a hearing before me. The hearing was focused on the merits of the application and remedy. Mr Bennett appeared for himself. Ms Melissa Hueso appeared for the Respondent. Ms Hueso is the General Manager of the Respondent.
[4] Directions were made in the usual terms to facilitate the hearing. Those directions required both parties to file and serve witness statements, an outline of submissions and any other documentary material to be relied upon.[1] Neither party filed any witness statements or an outline of submission. Rather, both parties filed and served several documents (such as a significant number of emails, minutes of various meetings etcetera), which were said to evidence the matters relevant to Mr Bennett's application. The material put on by both self-represented parties meant that essentially the hearing proceeded with both Mr Bennett and Ms Hueso giving evidence from the virtual bar table on affirmation about those documents. Both parties were given an opportunity to cross-examine each other. Mr Bennett elected to briefly cross-examine Ms Hueso. Both parties made very short closing oral submissions.
[5] All the material put before me by the parties has been considered.
[6] For the reasons explained below, I have taken into account the matters set out at section 387 of the FW Act and concluded that Mr Bennett's dismissal was not harsh, unjust or unreasonable. I have dismissed the application.
[7] The effect of section 390 of the FW Act is that the Commission may order a remedy for unfair dismissal if the Commission is satisfied of the two matters set out below:
(a) the person was protected from unfair dismissal at the time of being dismissed; and
[8] Section 382 of the FW Act explains when a person is protected from unfair dismissal. To be a person protected from unfair dismissal, the person must have completed a period of employment with his or her employer of at least the minimum employment period (section 382(a)); and one or more of the following apply:
(ii) an enterprise agreement applies to the person in relation;
(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[9] It was uncontested, and I find, that Mr Bennett was a person protected from unfair dismissal within the meaning of section 382 of the FW Act. Mr Bennett commenced employment with the Respondent on 30 August 2023[2] and was dismissed on 16 May 2025.[3] The Respondent is not a small business employer.[4] Mr Bennett's period of employment satisfies the requirement in section 382(a) of the FW Act. Section 382(b) of the FW Act is satisfied because Mr Bennett was covered by both a modern award[5] and Mr Bennett's annual rate of earnings were less than the high income threshold.[6]
[10] Section 385 of the FW Act explains when a person has been unfairly dismissed. It was uncontested, and I find, that Mr Bennett was dismissed, which means that section 385(a) is satisfied. Section 385(c), which concerns the Small Business Fair Dismissal Code, does not arise for consideration because the Respondent was not a small business employer.[7] It was uncontested, and I find, that Mr Bennett's dismissal was not a case of genuine redundancy, which means that section 385(d) is satisfied.
[11] The fundamental issue for determination is whether Mr Bennett's dismissal was harsh, unjust or unreasonable.
[12] The Respondent operates a real estate agency. It has an office in Gympie and another office in Maryborough, which are towns in the State of Queensland.
[13] Mr Bennett was employed in the role of Property Management Associate in the Respondent's office in Maryborough. This appears to be an entry level position in the real estate industry. The job description, which includes the roles and responsibilities, was before me.[8] In very summary terms, Mr Bennett's role required him to support the work of the Property Managers. Ms Hueso described such a role as a stepping stone. It appears that successful performance in such a role tends to lead to advancement to a role as a Property Manager.
[14] On 14 June 2024, which was approximately nine months after the commencement of his employment with the Respondent, Mr Bennett received a written warning (Warning).[9] The Warning related to Mr Bennett's performance. The Warning is reproduced below:
Further to the meeting I held with you on 14th of June 2024, this letter confirms the matters of concern relating to your work performance which were raised and discussed with you.
As discussed with you, I need to see an immediate improvement in relation to these concerns.
Accordingly, you will be subject to a review period between 14th of June 2024 and 15th of July 2024.
During that period, and ongoing, I expect you to:
Please be advised that failure to improve your performance during the performance review period may result in further disciplinary action being taken against you, up to and including termination of your employment.
Should you have any questions about matters raised in this correspondence, please do not hesitate to contact me. Otherwise, please confirm you have received, read, and understood this letter signing at the bottom of the page and returning a copy to me by 14th of June 2024.
[15] In discussing the Warning at the hearing, Mr Bennett acknowledged that he had 'done a few things wrong at the time'. This included being late for work. Mr Bennett acknowledged in the period leading up to the Warning that there were occasions where he had arrived late to work. Mr Bennett disputed that his lateness occurred on a regular basis. Mr Bennett went on to estimate in a four week period that there might have been three or four days when he arrived late to work. I am satisfied that being late to work between 15% - 20% of the time is regular.
[16] One of the concerns recorded on the Warning included incorrectly recording important customer information and/or messages, incorrectly logging keys in and out of the office. The Warning clearly set out the expectation of the Respondent with respect to those two tasks. The expectation as recorded on the Warning is reproduced below:
Increase attention to detail on tasks ensuring that critical information and messages are recorded and relayed correctly, and that keys are logged in and out of the office correctly.
[17] Notwithstanding the clarity by which the Warning set out that expectation, as I explain below, I am satisfied that in the period after the Warning was issued that Mr Bennett's performance with respect to those two tasks was unsatisfactory.
[18] It appears in early December 2024 that Mr Bennett's duties were narrowed. The effect being from that point, Mr Bennett performed receptionist duties.[10]
[19] On 3 March 2025, Ms Hueso commenced employment with the Respondent in the role of General Manager.[11]
[20] On 12 March 2025, Mr Bennett parked his vehicle at a RSL club that is close to the office where Mr Bennett worked. My findings about this incident are based upon Mr Bennett's explanation of this incident and an email from Kylie Larner to Ms Hueso dated 12 March 2025.[12] Mr Bennett's explanation was broadly consistent with that email. The car park is for customers of the RSL. Mr Bennett was not a customer and should not have parked his vehicle in the RSL car park. On parking his vehicle, Mr Bennett says that a staff member of the RSL yelled at him and aggressively asked him to move his vehicle. Mr Bennett was wearing company branded clothing. Mr Bennett did not move his vehicle. Rather, I am satisfied that Mr Bennett argued with the RSL staff. Mr Bennett asked the RSL staff whether there was anywhere that specifies that he cannot park his vehicle in the RSL car park. Mr Bennett was told that if he was not going into the RSL club that he needed to move his vehicle. Mr Bennett was not going into the RSL club, he was on his way to work. Mr Bennett again asked if there was anywhere that specified that he cannot park his vehicle in the RSL car park. Another RSL staff member then pointed to a sign, which indicated that the RSL car park was for customers only. Mr Bennett says that he then thanked that staff member and then promptly moved his vehicle. The RSL made a complaint to the Respondent about Mr Bennett's conduct.[13]
[21] On 27 March 2025, Ms Hueso sent an email to Mr Bennett.[14] At the hearing, Ms Hueso explained that the purpose of this email was to 'strip-back' Mr Bennett's duties to more basic tasks. The email is reproduced below:
In many agencies, the receptionist plays a crucial role as an extension of the property management department, providing essential administrative support, particularly since most inquiries received are directed to property management. This position offers an excellent opportunity for you to identify and develop your strengths within the industry. I can speak from personal experience, having started in a similar role myself. Those who excel in time management, organization, and initiative often find significant success.
By beginning in this capacity, you will have the chance to observe and learn about the foundational aspects of real estate administration, which will ultimately cross your desk at some point. It is up to you to make the most of this opportunity.
I want to recognize your welcoming demeanour and strong work ethic when interacting with clients. To help you grow, I would like to provide you with the opportunity to take on some direct tasks that are part of your role, allowing you to demonstrate your capabilities. I've attached a document outlining these responsibilities, which will be transferrable and will prepare you for future roles.
As you demonstrate your abilities and become a reliable support for the team, we can explore additional areas for integration into your role, enhancing your skills further.
I am committed to assisting you with your training and will ensure that the team provides you with the support you need to succeed in this position. I have every confidence in your potential to excel.
Have a wonderful day and I will see you on Friday.
[22] In response to such a 'stripping-back' of his duties, Mr Bennett did not object or ask for further training or support, or challenge any suggestion that his duties had been 'stripped back' because of concerns with his performance. Rather, Mr Bennett sent an email to Ms Hueso dated 27 March 2025,[15] which is reproduced below:
Thank you for sending this through. I have read through the email and attached document - this is brilliant!! It's clear, concise and outlines what my role embodies with an emphasis on teamwork.
I look forward to this new change and will endeavour to achieve success in each of these key responsibilities, while supporting the property management team. Thanks again Mel - you rock!
[23] It is clear that Ms Hueso took various steps to try to improve Mr Bennett's performance. I am satisfied that this included the 'stripping-back' of Mr Bennett's duties. Those steps included providing Mr Bennett with a template for processing rental applications. Ms Hueso provided this template to Mr Bennett by email dated 30 March 2025.[16]
[24] Another step taken by Ms Hueso was sending Mr Bennett an email dated 1 April 2025.[17] In that email, Ms Hueso clearly set out the duties performed by the admin team in the Respondent's Gympie Office. At the hearing, I asked Mr Bennett whether he had a conversation with Ms Hueso about the contents of this email before or after she sent the email to him. In answering my question, Mr Bennett said that he replied with like a thanks or something along those lines, and did not have a deep dive into it. Ms Hueso then contradicted Mr Bennett's answer to my question. In summary terms, Ms Hueso explained that the day after sending that email she was in the office with Mr Bennett and discussed the email with Mr Bennett. Ms Hueso explained that during that discussion that she said to Mr Bennett that she had sent the email to outline the tasks performed by the administrative staff in Gympie to assist Mr Bennett in understanding the minimum requirements of his role. I then asked Mr Bennett whether he agreed that there was a conversation to that effect. Mr Bennett replied that he could not recall concisely. I then said to Mr Bennett that I was not asking him to recall concisely, but was asking him whether there was a conversation between Ms Hueso and himself to that effect. Mr Bennett replied that there was a conversation along those lines. This exchange demonstrates the unreliability of Mr Bennett's evidence. One, the exchange demonstrates that Mr Bennett could in fact recall the conversation between Ms Hueso and himself. That demonstrates that Mr Bennett's initial answer to the question, which was that he replied with a like a thanks or something along those lines and did not have a deep dive into it, was clearly untrue. Two, when pressed following Ms Hueso's contradiction, Mr Bennett was evasive. Mr Bennett was evasive because he sought to answer the follow up question by seeking to confine his answer to whether he could recall concisely. As explained above, the hearing was conducted by essentially taking evidence from the virtual bar table. My finding that Mr Bennett's evidence was unreliable has caused me to adopt a cautious approach to Mr Bennett's explanation and account of the matters relevant to this application.
[25] On 1 April 2025, Mr Bennett failed to switch the office telephones to night mode. This was a task that Mr Bennett was required to perform on the office being closed at the end of the day. Mr Bennett accepted that he failed to perform this task. The result of the office telephones being switched to night mode means that when someone calls the office after-hours the caller will go through voicemail and receive instructions to assist with their enquiry. For example, a tenant calling after-hours in the event that the hot water system in their rental property has broken and needs urgent repair. As a result of Mr Bennett failing to switch the office telephones to night mode on 1 April 2025, any such after-hours caller would not have received any such instructions. The telephone would just keep ringing and the call would go unanswered. The next day, Ms Hueso raised this issue with Mr Bennett by email.[18]
[26] On 4 April 2025, Ms Hueso sent two emails to Mr Bennett.[19] In summary terms, Ms Hueso set out four key tasks that Mr Bennett was to perform. The process by which each task was to be performed was clearly set out in the email. Three of those four tasks related to keys. As explained above, one issue of underperformance that was recorded on the Warning was the incorrect logging of keys. The correct logging of keys is obviously important given the nature of the Respondent's business. If the agent or a tradesperson is given the incorrect keys for a particular property, they will obviously be unable to access that property. When discussing the Warning at the hearing, Mr Bennett accepted that there were occasions prior to the issuing of the Warning that he made mistakes. At the hearing, Ms Hueso explained that after she started with the Respondent in March 2025 that the agents began to arrange the keys themselves and without Mr Bennett's assistance. Ms Hueso explained that the agents took over this task from Mr Bennett because on performing routine inspections of various properties the agents were being given the wrong keys, which meant they would have to come back to the office to get the correct keys before then going back to the property. At the hearing, Mr Bennett agreed with Ms Hueso's explanation of these matters. As such, I am satisfied that the correct logging of keys has been a task where Mr Bennett continued to make mistakes, notwithstanding the fact that the Respondent's expectations with respect to this task were clearly outlined to Mr Bennett at least twice in the space of 12 months. Ms Hueso's unchallenged explanation also demonstrates that other members of the team decided to by-pass Mr Bennett and perform this task themselves because of the mistakes made by Mr Bennett.
[27] On about 10 April 2025, Ms Kylie Larner sent an email to Ms Hueso.[20] Ms Larner is employed by the Respondent in the role of Senior Support of Property Management. In summary terms, Ms Larner's email recorded that approximately two weeks prior a tradesperson had come into the office and given a contractor form to Mr Bennett. The email recorded that Mr Bennett had not put the form onto the Respondent's system and had not otherwise actioned the form in the two week period. This incident was discussed at the hearing. Ms Hueso explained the importance of the Respondent having a reliable team of tradespeople and maintenance workers, and that if the contractor form was incomplete that it could still be entered on the Respondent's system, and that Mr Bennett should have followed up with the tradesperson to obtain the remaining details on the form. Mr Bennett explained that the contractor form was incomplete and that he understood that the tradesperson could not be entered onto the Respondent's system until the form was complete. Mr Bennett confirmed that he understood that he was required to follow up the tradesperson to obtain the remaining details on the form. Mr Bennett said that he did follow up by telephone a couple of times. Mr Bennett's evidence that he did follow up was not supported by any corroborating evidence, such as telephone records or the like. Consistent with my finding about the reliability of Mr Bennett's evidence, I reject Mr Bennett's evidence that he followed up with this tradesperson in this period. I am satisfied that Mr Bennett did not follow up and took no action with respect to the processing of this form. In doing so, I am satisfied that Mr Bennett did not follow the Respondent's processes with respect to the processing of such forms.
[28] On 9 May 2025, Ms Hueso sent an email to Mr Bennett.[21] In summary terms, in that email, Ms Hueso clearly explained the importance of the support role performed by Mr Bennett in connecting telephone calls from clients to the relevant property manager, if possible. Ms Hueso referred to several calls not being put through by Mr Bennett to the relevant property manager despite such property managers being available at their desks. As already explained, the Warning received by Mr Bennett had earlier clearly explained that Mr Bennett was required to 'ensure that critical information and messages are recorded and relayed correctly'. In this email, Ms Hueso clearly outlined the Respondent's expectations with respect to this task. Mr Bennett responded to Ms Hueso's email.[22] Notwithstanding Mr Bennett suggesting that he was open to feedback, his response does not read as an employee acknowledging that his performance needed to improve despite being warned about similar performance concerns only 12 months ago. Mr Bennett instead made a series of excuses for failing to perform a fundamental duty of his role - putting calls through in a timely manner - and then raised an unrelated issue on the topic of communication.
[29] The events that triggered that email exchange was discussed at the hearing. Ms Hueso explained that in a single day just prior to this email exchange that there were several telephone calls from property owners that Mr Bennett received that he did not put through to the relevant property manager. Ms Hueso explained that happened to about three or four property managers, some of whom were sitting at their desks waiting on these telephone calls. Ms Hueso explained that some of the property owners were upset that they were not receiving a return telephone call from the relevant property manager and sent emails to that effect. Ms Hueso explained that Mr Bennett failed to follow the correct procedure in either not putting these telephone calls through to the relevant property manager and / or not logging the respective telephone call. Ms Hueso explained that the sending of one such email prompted the relevant property manager to discuss the matter with Mr Bennett. It is said that Mr Bennett shrugged it off and said words to the effect that he forgot. At the hearing, I raised Ms Hueso's account of these events with Mr Bennett and sought his explanation. In summary, Mr Bennett said that he could not recall these events. The events occurred approximately a fortnight before Mr Bennett's dismissal and lead to the above email exchange with Ms Hueso. In that context, I do not accept that Mr Bennett was unable to recall these events. This reinforces my finding as to reliability of Mr Bennett's explanation and account of the matters relevant to this application. I accept Ms Hueso's explanation of these events.
[30] I am satisfied that Mr Bennett's performance in the period leading up to his dismissal with respect to ensuring that critical information and messages were relayed and recorded correctly was unsatisfactory, notwithstanding the fact that the Respondent's expectations with respect to this task had been clearly outlined in the Warning less than 12 months earlier.
[31] A further instance of unsatisfactory performance occurred in the weeks prior to Mr Bennett's dismissal. The date of this event was not identified by either party. It appears that this event occurred on a Friday. The Respondent has a process in place to deal with requests for sales appraisals. If the request for an appraisal is made to reception by a landlord, the Respondent's process is that reception must refer the request to Ms Gemma Goodyear. Ms Goodyear then determines which of the agents is to handle the request. If the request is made by a person other than a landlord, the Respondent's process is that there is a roster system by which the sales agents are on that roster and whichever of the agents is on the roster at the time of the request is to handle the request. Mr Bennett agreed that was the correct process. On the occasion in question, Mr Bennett received a telephone call from a person seeking a sales appraisal. The person was a landlord. Mr Bennett did not follow the correct process for handling this telephone call. Mr Bennett explained that he did not follow the correct process because he said that the person making the telephone call was very disgruntled, very gung ho and wanted to speak to someone straight away. Mr Bennett explained that because of the attitude of that person that he was unable to obtain the necessary information from the caller. I am satisfied that Mr Bennett failed to follow the Respondent's processes for dealing with such enquiries. I am not satisfied that Mr Bennett's non-compliance with the Respondent's processes can be excused by reference to the conduct of the person making the telephone call. Dealing with difficult clients can be an unfortunate, but necessary, aspect of a customer facing role. There is a difference between a difficult client and an abusive client. I would not be critical of Mr Bennett if he had terminated a telephone call with an abusive client. I would be quite critical of the Respondent if they had sought to discipline Mr Bennett for taking such steps with respect to an abusive client. Mr Bennett's explanation does not support a finding that the person making the telephone call was abusive. At its highest, Mr Bennett's explanation supports a finding that the person was a difficult client. Based upon the material put before me with respect to Mr Bennett's interaction with this person, I am satisfied that Mr Bennett should have been able to obtain the necessary information from this person in order to follow the Respondent's processes.
[32] On 14 May 2025, Mr Bennett met with Ms Hueso. Ms Hueso said that the meeting went for approximately one hour and a half. Mr Bennett said that the meeting went for over an hour. The meeting concerned Mr Bennett's performance. At the hearing, both Ms Hueso and Mr Bennett agreed that Mr Bennett was told at this meeting that his employment may be terminated. It appears from Mr Bennett's very brief cross-examination of Ms Hueso that at this meeting held on 14 May 2025 that Mr Bennett said words to the effect that his workload was too much. I am satisfied based on material before me, including Mr Hueso's answer to that question, that Mr Bennett's workload was not excessive and should have been manageable. I am satisfied based on the material before me that the meeting held on 14 May 2025 provided Mr Bennett with an opportunity to respond to the Respondent's concerns about his unsatisfactory performance. After the meeting, Mr Bennett sent Ms Hueso an email dated 14 May 2025.[23] In that email, Mr Bennett provided a further response to the Respondent's concerns about his unsatisfactory performance. Ms Hueso responded with an email dated 15 May 2025.[24] In summary, that email reiterated the Respondent's concerns with Mr Bennett's unsatisfactory performance, outlined the training and support provided to Mr Bennett and invited him to a meeting on 16 May 2025.
[33] On 16 May 2025, Mr Bennett met with Ms Hueso and Ms Goodyear. Mr Bennett's partner also attended this meeting as his support person. The meeting was brief. In summary, Mr Bennett was advised of his dismissal and provided with a letter, which advised of the termination of his employment.[25] On being dismissed, Mr Bennett received payment in lieu of notice. The letter is reproduced below:
I am writing to you about the termination of your employment with Century 21 Platinum Agents Maryborough. On 14/05/2025 you met Melissa Hueso. In that meeting, you were advised that for the duration of your employment there has been concerns concerning your performance and ability to demonstrate competent skills required for the Administration & Property Management support role.
We consider that both your performance and conduct within the office is still unsatisfactory and have decided to terminate your employment for the following reasons:
Your employment will end immediately. Based on your length of service, your notice period is 2 weeks. In lieu of receiving that notice, you will be paid the sum of $2,188.83.
You will also be paid your accrued entitlements and any outstanding pay, up to and including your last day of employment. This includes the balance of any time off instead of overtime accrued but not yet taken (paid at the overtime rate applicable when the overtime was worked), and superannuation.
You may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them you can call 13 13 94 or visit their website at www.fairwork.gov.au.
[34] At the meeting held on 16 May 2025, Mr Bennett raised a complaint that he had been bullied and harassed at work. At the hearing, Mr Bennett said that the relevance of any such bullying and harassment was that he did not have the confidence to speak up about what was wrong, especially in team meetings attended by the colleagues that Mr Bennett said were bullying and harassing him.
[35] On the material put before me, I do not accept that Mr Bennett was bullied and harassed, or that he lacks the confidence to speak up.
[36] Mr Bennett referred to two events that are said to evidence bullying and harassment. Mr Bennett set out in writing his account of these events.
[37] The first event involved a conversation with Ms Vicky Kelly on 29 November 2025. Mr Bennett's account of this event[26] is reproduced below:
I had just came into work and sat down at my desk. I wasn't feeling very good as I had a rough nights sleep with my 4month old daughter.
Vicky Kelly soon arrived at work and was sitting at her desk. She jokingly said "Arrrr I don't want to do these inspections this morning". Kelly Bowtell then piped up and replied: "You should get Ryan to them for you Vicky"
Vicky then replied: "No no it's all good I'll do them". Vicky then left a few minutes later. After she left, Kelly said to me: "Ryan, you really should have stepped up and said yes Vicky I can do those inspections for you. You need to be jumping up and down trying to help out"
I replied: "Sorry Kelly I didn't jump up and down because I'm not feeling 100% this morning". Kelly replied: "Well why did you bother showing up for work then?"
I replied "Because I need to show up to work it's my job"
Kelly raised her tone and replied "Yes, it's your job to be helping out too!"
I then arched up and said to Kelly "Fuck Kelly what's with your attitude? I am helping out, I've helped you do 2 or 3 lots of Routine Inspections this week plus an Entry Condition Report, and I'm also helping Wendy out with her Inspections. I don't think you actually see how much I have been helping out."
Kelly replied "It's just not sinking in for you is it? Yes mate I get that, but I'm talking about today not those other days you've been helping".
Then stopped replying to Kelly and continued to do my work.
[38] I am not satisfied that this event, which on Mr Bennett's account included him 'arcing up' and responding to Ms Bowtell with words including 'Fuck Kelly what's with your attitude', amounts to bullying and harassment. I do not accept that an employee that 'arcs up' and says to a colleague 'Fuck Kelly what's with your attitude', is an employee that lacks the confidence to speak up.
[39] The second event involved a conversation with Ms Bowtell on 25 February 2025. Mr Bennett's account of this event[27] is reproduced below:
Owner of Angel's came into the office asking to speak with Angel at 12:55pm. I told her "No worries I'll have a look, won't be a minute".
I proceeded to go out the back and found Angel at her desk - I told her that one of her Owners was out the front asking to speak with her. Kylie was next to her and mentioned how I should check the staff calendars so I'm not disturbing them during lunch.
I was under the assumption that Angel was having lunches between 1-2pm and the current time was 12:55pm I thought this was okay to ask her if she wanted to speak with her owner in the foyer.
I informed Kylie that I wasn't sure if Angel's lunch was between 12-1pm or 1- 2pm. Kelly Bowtell was sitting at her desk, looked at me and said "Ryan, it's been the same fucking lunchtimes since you started here" in a slightly raised tone - I turned to Kelly and said "Please don't swear at me Kelly".
[40] The bullying and harassment that Mr Bennett alleges with respect to this second event appears to be Ms Bowtell saying to Mr Bennett 'Ryan, it's been the same fucking lunchtimes since you started here'. I do not accept that Ms Bowtell swearing at Mr Bennett amounts to bullying and harassment in circumstances where Mr Bennett had earlier sworn at Ms Bowtell during the first event discussed above. I further note that Mr Bennett's understanding was that Angel was having lunch between 1-2pm, however, he told Kylie that he was not sure if Angel's lunch was between 12-1pm or 1-2pm. Plainly, what Mr Bennett told Kylie did not reflect his understanding and was untrue.
[41] Moreover, the Respondent's concerns with Mr Bennett's unsatisfactory performance have been discussed above. Even if it were the case that Mr Bennett lacked the confidence to speak up (which I do not accept), there is no logical connection between any such issues and Mr Bennett's unsatisfactory performance. For example, any reticent on Mr Bennett's part to speak up, especially at team meetings, does not explain his ongoing unsatisfactory performance with respect to the logging of keys.
[42] At the hearing, Mr Bennett initially suggested that there were some duties for which he did not receive any training or only received inadequate training. Mr Bennett marked these duties on his job description.[28] However, based on Mr Bennett's answers to some questions from me at the hearing, I am satisfied that Mr Bennett was not required to perform those duties, which obviated the need for any such training. Based on the material before me, I am satisfied that Mr Bennett received adequate training for the duties that he performed.
[43] Ms Hueso's email to Mr Bennett dated 15 May 2025[29] outlined the support that the Respondent had been put in place with respect to Mr Bennett's duties. The support recorded in Ms Hueso's email is set out below:
[44] At the hearing, Mr Bennett agreed that the Respondent had taken each of those steps.
[45] 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.
[46] In an Appeal by B, C and D,[30] a Full Bench of the Commission discussed the phrase "harsh, unjust or unreasonable". The Full Bench held at [53]:
A determination as to whether a dismissal was harsh, unjust or unreasonable involves the application of a broad discretionary standard. The discretion is nevertheless one that must be exercised judicially, that is, in accordance with applicable legal principles...The classic statement of principle comes from the judgement of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465:
"It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."
In Byrne v Australian Airlines (1995) 185 CLR 410 at 467 McHugh and Gummow JJ endorsed the observations of Sheppard and Heerey JJ in Bostik (Aust) Pty Ltd v Gorgevski (No 1) [1992] FCA 209; (1992) 36 FCR 20 at 28 in relation to the phrase "harsh, unjust or unreasonable":
"These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct."
[48] Each of the matters in section 387 of the FW Act must be considered and treated as a matter of significance in the decision making process.[31] However, the Commission is only required to consider those matters insofar as they are relevant to the factual circumstances of the particular case.[32] The weight given to each such relevant matter is a matter for the Commission in coming to an overall conclusion as to whether the dismissal was harsh, unjust or unreasonable.[33]
[49] Mr Bennett advanced three arguments in support of his argument that his dismissal was unfair:
(a) There was no official performance management put in place and he was not informed about any policy or procedure relating to performance management;
(b) That he did not receive any warnings or disciplinary action for his lack of performance; and
(c) That there was only a two day period between the meeting on 14 May 2025 and his dismissal on 16 May 2025, which was said to be not enough time given there was no performance management plan.
[50] It is evident that the three arguments made by Mr Bennett are focused upon process. That is, Mr Bennett did not make an argument in closing oral submissions contesting the essential reason for his dismissal - that his performance had been unsatisfactory.
[51] Mr Bennett did not explain how any of these three arguments should be considered by reference to the matters specified in section 387 of the FW Act.
[52] I have approached the matter by considering each of the matters set out in section 387 of the FW Act. In doing so, I have considered Mr Bennett's first and third argument under section 387(h) of the FW Act, and his second argument under section 387(e) of the FW Act.
Whether there was a valid reason for the dismissal related to Mr Bennett's capacity or conduct (including its effect on the safety and welfare of other employees): Section 387(a)
[53] Expressed in summary terms, Mr Bennett was dismissed for unsatisfactory performance. The word 'capacity' in s.387(a) means the employee's ability to do the work he or she is employed to do.[34] A reason will be 'related to the capacity' of the employee where the reason is associated or connected with the ability of the employee to do his or her job.[35] A valid reason for dismissal is a reason which is sound, defensible or well founded.[36] If the reason for dismissal is said to have been for unsatisfactory performance, the Commission must determine whether the performance was unsatisfactory.[37] That is to be determined based on an objective analysis of the relevant facts.[38]
[54] I apply those principles in taking into account section 387(a) of the FW Act.
[55] Mr Bennett was employed by the Respondent for a period of approximately 20 months. The Warning was issued approximately nine months after Mr Bennett commenced employment with the Respondent.
[56] There was insufficient material before me to determine whether each of the performance concerns identified in the Warning occurred or not. Mr Bennett did acknowledge that he had 'done a few things wrong at the time'. I have made a finding of fact that Mr Bennett was late for work on a regular basis.
[57] One of the concerns recorded on the Warning was incorrectly recording important customer information and/or messages, incorrectly logging keys in and out of the office. The Warning clearly sets out the expectation of the Respondent with respect to those two tasks. The expectation as recorded on the Warning is reproduced below:
Increase attention to detail on tasks ensuring that critical information and messages are recorded and relayed correctly, and that keys are logged in and out of the office correctly.
[58] In the period after the Warning was issued, I am satisfied that Mr Bennett's performance with respect to those tasks and meeting that expectation was unsatisfactory.
[59] I have made findings of fact about Mr Bennett's competence in correctly logging keys in and out of the office. In the period after the Warning was issued, I am satisfied that Mr Bennett continued to make mistakes when performing this task. The other members of the team decided to by-pass Mr Bennett and perform this task themselves because of Mr Bennett's mistakes. This suggests that Mr Bennett's failure to correctly log keys in and out of the office was not a one-off, but occurred on such a frequent basis and / or created such inefficiencies for the rest of the team that the task was taken from Mr Bennett.
[60] I have made findings of fact about Mr Bennett's competence in ensuring that critical information and messages are recorded and relayed correctly. In the period after the Warning was issued, I am satisfied that Mr Bennett's continued to make mistakes when performing this task. In particular, I have found that in a single day in the weeks prior to Mr Bennett's dismissal that there were several telephone calls from property owners that Mr Bennett received that he did not put through to the relevant property manager. I have found that with respect to those telephone calls that Mr Bennett failed to follow the correct procedure in either not putting these telephone calls through to the relevant property manager and / or not logging the respective telephone call.
[61] Those tasks were fundamental to the support role undertaken by Mr Bennett. Mr Bennett was clearly on notice through the Warning that his performance with respect to those tasks was unsatisfactory. In the period after the Warning, Mr Bennett's performance with respect to those tasks remained unsatisfactory. Mr Bennett's unsatisfactory performance with respect to those fundamental tasks in circumstances where he had received a Warning about those very same tasks only eleven or so months earlier is a valid reason for dismissal.
[62] I am fortified in my view that there was a valid reason for dismissal by reference to the other examples of Mr Bennett's unsatisfactory performance. This includes Mr Bennett failing to switch the office telephone to night mode on 1 April 2025. It also includes Mr Bennett's non-compliance with the Respondent's processes associated with the contractor form. This event occurred on or about 10 April 2025. I have made findings of fact with respect to this event. Namely, that Mr Bennett did not follow up the tradesperson in the two week period and took no action with respect to the processing of this form. In doing so, Mr Bennett did not follow the Respondent's processes with respect to the processing of such forms. It also includes Mr Bennett's non-compliance with the Respondent's processes associated with sales appraisals. The date of this event was not identified, however, it appears to have occurred on a Friday and been proximate to Mr Bennett's dismissal. I have made findings of fact that Mr Bennett did not follow the correct process for handling this particular telephone call. Each of these events in isolation would not support a finding that there was a valid reason for dismissal. However, each event occurred in a similar time period and, considered together, compliment my overall conclusion that Mr Bennett's performance was unsatisfactory.
[63] I have taken into account the reasons for Mr Bennett's dismissal. I am satisfied that there was a valid reason for Mr Bennett's dismissal that related to his capacity. The valid reason being Mr Bennett's unsatisfactory performance. In reaching this finding it has been unnecessary for me to give consideration to Mr Bennett's conduct with respect to the RSL car park on 12 March 2025. My finding that there was a valid reason weighs against an overall conclusion that Mr Bennett's dismissal was harsh, unjust or unreasonable.
Whether Mr Bennett was notified of that reason (section 387(b)) and whether Mr Bennett was given an opportunity to respond to any reason related to his capacity or conduct (section 387(c))
[64] A Full Bench of the Commission in Mark Bartlett v I_ngleburn Bus Services Pty Ltd t/as Interline Bus Service_[39] explained that the relevant principles as to the meaning and application of section 387(b) and (c) was well established.[40] The Full Bench summarised those principles in the terms set out below:
(1) Each of the matters specified in s 387, including those in paragraphs (b) and (c), must be taken into account as matters of significance, to the extent that they are relevant to the particular case at hand, and given due weight.
(2) Proper consideration of s 387(b) requires a finding to be made as to whether the applicant has been notified of "that reason" - that is, the reason for dismissal relating to the capacity or conduct of the applicant found to be valid under s 387(a) - prior to the decision to dismiss being made.
(3) Proper consideration of s 387(c) requires a finding to be made as to whether the applicant has been given a real opportunity to respond to the reason for dismissal. As a matter of logic, unless the applicant has been notified of the reason, it is difficult to envisage that it could be found that the applicant has been afforded an opportunity to respond to that reason.
(4) Once findings are made in relation to s 387(b) and (c), they may then be weighed together with the other matters required to be taken into account in order to form a conclusion as to whether the applicant's dismissal was harsh, unjust or unreasonable. Where it is found that the applicant was not notified of the reasons for dismissal and/or was not given an opportunity to respond, a relevant consideration as to the weight to be assigned to this is whether this meant that the applicant was deprived of the possibility of a different outcome in terms of avoiding his or her dismissal.
[65] On application of those principles, I am satisfied that Mr Bennett was notified of the reason for his dismissal relating to his capacity that has been found to be valid under section 387(a). I am satisfied that Mr Bennett was given an opportunity to respond to any reason related to his conduct.
[66] Mr Bennett was given that notice and opportunity at the meeting held on 14 May 2025. The meeting went for at least one hour. The meeting concerned Mr Bennett's performance. It also evident from Mr Bennett's third argument that the Respondent's view that Mr Bennett's performance was unsatisfactory was raised with him at this meeting. Both Ms Hueso and Mr Bennett agreed that Mr Bennett was told at this meeting that his employment may be terminated. Mr Bennett raised issues such as his workload at this meeting. Following the meeting, Mr Bennett sent Ms Hueso an email dated 14 May 2025.[41] In that email, Mr Bennett responded to several instances of unsatisfactory performance, which have been found to be a valid reason for dismissal. This includes a response from Mr Bennett on the issue of connecting telephone calls that he received. Ms Hueso followed up with an email of her own to Mr Bennett dated 15 May 2025.[42] In summary, that email reiterated the Respondent's concerns with Mr Bennett's unsatisfactory performance, outlined the training and support provided to Mr Bennett and invited him to a meeting on 16 May 2025.
[67] I have taken into account whether Mr Bennett was notified of the reason and given an opportunity to respond to any such reason. I am satisfied that Mr Bennett was given such notice and opportunity. My finding that Mr Bennett was given such notice and opportunity weighs against an overall conclusion that Mr Bennett's dismissal was harsh, unjust or unreasonable.
Any unreasonable refusal by the Respondent to allow Mr Bennett to have a support person to assist at any discussions relating to the dismissal: Section 387(d)
[68] This matter concerns any unreasonable refusal by the employer to allow the dismissed employee to engage the assistance of a support person. It does not impose a positive obligation on the employer to suggest that the employee may wish to engage the assistance of a support person.
[69] Mr Bennett was invited to bring a support person to the meeting held on 16 May 2025.[43] Mr Bennett attended that meeting with a support person.
[70] There was no unreasonable refusal by the Respondent to allow Mr Bennett to have a support person to assist at any discussions relating to the dismissal. This matter weighs against a conclusion that Mr Bennett's dismissal was harsh, unjust or unreasonable.
If the dismissal related to unsatisfactory performance by Mr Bennett - whether Mr Bennett had been warned about that unsatisfactory performance before the dismissal: Section 387(e)
[71] Mr Bennett's dismissal related to unsatisfactory performance.
[72] Mr Bennett's second argument was that he did not receive any warnings or disciplinary action about his performance prior to his dismissal. I reject that argument. Mr Bennett received the Warning less than 12 months prior to his dismissal. Mr Bennett attempted to argue that the Warning should somehow not be considered because his role changed at a point after the Warning and before his dismissal. As explained above, Mr Bennett's duties narrowed in early December 2024 so that he only performed receptionist duties, and then his duties were 'stripped-back' by Ms Hueso on 27 March 2025. The narrowing and 'stripping-back' of Mr Bennett's duties does not change the fundamental fact that he has been warned about unsatisfactory performance before his dismissal. Even more fatal to Mr Bennett's argument is that there has been repetition after the issuing of the Warning of at least specific instances of unsatisfactory performance that were recorded in the Warning - correctly logging keys in and out of the office, and ensuring that critical information and messages are recorded and relayed correctly.
[73] My finding that Mr Bennett had been warned about unsatisfactory performance before the dismissal weighs against a conclusion that Mr Bennett's dismissal was harsh, unjust or unreasonable.
The degree to which the size of the Respondent's enterprise would be likely to impact on the procedures followed in effecting the dismissal: Section 387(f)
[74] The Respondent is not a small business as defined in the FW Act. At the time of Mr Bennett's dismissal, it had 18 employees.[44] I have not made any adverse findings about the procedures followed by the Respondent in effecting the dismissal. In reaching my overall conclusion as to whether Mr Bennett's dismissal was harsh, unjust or unreasonable, I regard section 387(f) to be a neutral consideration.
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: Section 387(g)
[75] It does not appear that the Respondent had dedicated human resources management specialists in the enterprise. I have not made any adverse findings about the procedures followed by the Respondent in effecting the dismissal. In reaching my overall conclusion as to whether Mr Bennett's dismissal was harsh, unjust or unreasonable, I regard section 387(g) to be a neutral consideration.
Any other relevant matters that the FWC considers relevant: Section 387(h)
[76] Mr Bennett's first and third argument will be considered under section 387(h). There are no other matters that the parties submitted should be considered under section 387(h).
[77] Mr Bennett's first argument was that there was no official performance management put in place and he was not informed about any policy or procedure relating to performance management. Mr Bennett's third argument was that there was only a two day period between the meeting on 14 May 2025 and his dismissal on 16 May 2025, which was said to be not enough time given there was no performance management plan. In determining whether a dismissal is harsh, unjust or unreasonable, the Commission is required to undertake the evaluative exercise required by section 387. It is not the case that an absence of an official performance management plan, policy or procedure always renders a dismissal harsh, unjust or unreasonable. It is not the case that there is a minimum period of time that an employer must give to an employee that is underperforming in order to avoid a finding that the dismissal is harsh, unjust or unreasonable.
[78] These arguments ignore the fact that less than 12 months prior to dismissal that Mr Bennett received the Warning. In the period following the Warning, Mr Bennett's duties were narrowed and then later 'stripped-back'. I am satisfied that Mr Bennett received adequate training for the duties that he performed. I am satisfied that Mr Bennett received support, including:
[80] Moreover, the material before me indicates that Ms Hueso raised any concerns about Mr Bennett's performance with him promptly. An example of this being Mr Bennett's failure to switch the office telephones to night mode. The very next day, Ms Hueso raised Mr Bennett's failure to switch the office telephones to night mode with him.
[81] Viewed in that context, I do not accept that any absence of any official performance management plan, policy or procedures is a factor that weighs towards a finding that the dismissal was harsh, unjust or unreasonable. I do not accept that Mr Bennett was only given two days to improve his performance. As explained above, that submission is directly at odds with the facts.
[82] Mr Bennett was clearly on notice through the Warning that his performance was unsatisfactory. In the period after the Warning was issued, I have found that Mr Bennett's performance was unsatisfactory. I am satisfied that Mr Bennett received adequate training for the duties that he performed. I am satisfied that Mr Bennett received adequate support. The Respondent took those steps to assist Mr Bennett in improving his performance. Notwithstanding adequate training and such support, Mr Bennett's performance remained unsatisfactory. In these particular factual circumstances, I am not persuaded there is any merit in Mr Bennett's first or third argument, or that there are any other reasons that weigh in favour of a finding Mr Bennett's dismissal was harsh, unjust or unreasonable.
Overall conclusion whether Mr Bennett's dismissal was harsh, unjust or unreasonable
[83] I have taken into account and made findings with respect to each of the matters in section 387 that are relevant to the circumstances of this application.
[84] I have found that there are five matters that weighs against a conclusion that Mr Bennett's dismissal was harsh, unjust or unreasonable. Those matters are: (1) there was a valid reason for Mr Bennett's dismissal related to his capacity, (2) Mr Bennett was notified of the reason, (3) Mr Bennett was given an opportunity to respond to any reason related to his capacity or conduct, (4) there was no unreasonable refusal by the Respondent to allow Mr Bennett to have a support person assist in discussions relating to his dismissal, and (5) Mr Bennett had been warned about unsatisfactory performance prior to his dismissal. I regard the matters in section 387(f) & (g) to be neutral considerations. There are no other matters that weigh in favour of a finding that Mr Bennett's dismissal was harsh, unjust or unreasonable.
[85] Having considered and weighed each of the relevant matters in section 387 of the FW Act both individually and collectively, I am satisfied that Mr Bennett's dismissal was not harsh, unjust or unreasonable. Consequently, I am not satisfied that Mr Bennett has been unfairly dismissed.
[86] I dismiss Mr Bennett's application for an unfair dismissal remedy. An order to that effect will be issued separately to this decision.
[1] Digital Hearing Book (DHB), pages 142 - 143.
[31] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [50].
[32] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [50].
[33] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51], Glenn Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [54].
[34] Boris Jurisic v ABB Australia Pty Ltd [2014] FWCFB 5835 at [74].
[35] Boris Jurisic v ABB Australia Pty Ltd [2014] FWCFB 5835 at [74].
[36] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371.
[37] Robert Etienne v FMG Personal Services Pty Ltd [2017] FWCFB 3864 at [45].
[38] Boris Jurisic v ABB Australia Pty Ltd [2014] FWCFB 5835 at [73], Robert Etienne v FMG Personal Services Pty Ltd [2017] FWCFB 3864 at [46].
Printed by authority of the Commonwealth Government Printer
Mr Ryan Bennett
C21PA Pty Ltd [2025] FWC 3372
(1995) 185 CLR 410
(2002) 117 IR 357
(1995) 62 IR 371
(1992) 36 FCR 20