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[2025] FWC 1725
General information, not legal advice.
Fair Work Commission
2025-08-27
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Please accept this letter as formal advice that Roper Gulf Regional Council has commenced a show cause process in relation to your employment.
You are requested to show cause in relation to allegations of serious misconduct relating to the inappropriate use of your Aged Care Provider Portal approval privileges.
Further investigation noted, that at the time, only you had the privileges of Granting, Rejecting, Deleting or Revoking user access to the Aged Care Provider Portal.
The Council is obligated to the Commonwealth Department of Health and Aged Care, which includes the Medicare Benefits Schedule (MBS), to report any suspected malfeasance to the Australian Federal Police for further investigation.
Prior to reporting the matter to the authorities, Council is interested in hearing your version of events.
You are hereby provided with the opportunity to respond to the above allegations of serious misconduct and to show why Roper Gulf Regional Council should not consider taking disciplinary action against you, up to and including the termination of your employment.
You may respond to me in writing by close of business (COB) Wednesday, 30th of October 2024. Please note that if you fail to provide a response within the timeframe provided, Roper Gulf Regional Council will be left to make a decision based on the information we have available.
Depending on the outcome of your response, disciplinary action may be taken and this may result in the termination of your employment.
Council provides a free EAP program; you can contact EASA on [redacted].
Should you wish to discuss this matter contact me on [redacted].
Acting General Manager Council Services and Community Engagement"
MRS CLARE CUPITT - YOUR LETTER DATED 28 OCTOBER 2024
We act on behalf of Mrs Cupitt in relation to your 'show cause' correspondence dated 28 October 2024.
We note that there are in effect two allegations made against our client.
As to the second allegation (paragraph numbered 3 of your correspondence), it is not apparent that that allegation is directed to Mrs Cupitt. Rather it appears to be a general assertion of an apparent state of affairs relating to Mr David Hurst but without reference to Mrs Cupitt's conduct at any time.
If it is to be alleged that Mrs Cupitt misconducted herself in this respect, full detail of the relevant alleged conduct is requested. As it stands, there is nothing for Mrs Cupitt to respond to. If there is no allegation in this respect against Mrs Cupitt, then the allegation should be withdrawn immediately.
In relation to the first allegation (paragraphs 1 and 2), we note that the only date referred to is 9 September 2024, more than 6 weeks ago, and this allegation does not contain the necessary specificity which would enable our client to adequately understand and then appropriately respond to the allegation.
It follows that Mrs Cupitt is not able to respond within the very short deadline proposed in your correspondence.
We have been instructed that Mr Hurst advised Mrs Cupitt on 25 September 2024 that there had been a data breach at the Council, and that further there have been multiple instances of data breaches at the Council.
Further, Mrs Cupitt has instructed us that she has notified the My Aged Care Provider Portal help desk of this matter. She has been advised that an investigation report will be sent to her work email. We request a copy of that report once it is to hand.
We seek the following further particulars of and relevant documents regarding the second allegations (allegedly accessing Aged Care Provider Portal and rejecting user request, alleged revocation of Anika Tabassum Alam's access and deletion of the Acting CEO's user account):
Mrs Cupitt will be in a position to provide her response after receipt of the requested particulars and documents.
We are now instructed by Roper Gulf Regional Council (Council) and write in relation to your client, Ms Clare Cupitt.
Your letter of 30 October 2024 was in response to our client's show cause letter of 28 October 2024.
We note that your client did not offer any response or denial of the allegations in your letter, or requested more time for a response, but simply requested various additional information and particulars.
It is our client's position that the allegations in the show cause letter were very clear as written, and no further information or material was necessary to permit your client an opportunity to respond.
In any event, our client's investigations into matters that led to the show cause letter have been ongoing, as below.
We refer to our client's 'show cause letter' of 28 October 2024, which set out 3 serious allegations about Ms Cupitt's conduct.
Our client is content, based on enquiries to date, that Ms Cupitt took the following steps:
As touched on in the show cause letter, these actions by Ms Cupitt significantly hampered Council's ability to properly function and fulfil various important obligations.
Our client has also confirmed / become aware of, respectively:
Our client has brought these discrepancies to the attention of the appropriate entities and authorities, to ensure its ongoing good governance, and to ensure the confidential and financial interests of its clients and stakeholders is maintained.
Due to the seriousness of these matters, and the significant detriment and risk caused to Council operations by the Portal access issues (as above), Council has determined to terminate Ms Cupitt's employment.
Accordingly, Ms Cupitt's employment is terminated, as of today 1 November 2024, and she will be paid three (3) weeks salary in lieu of notice in the next pay cycle on 7 November, 2024.
Ms Cupitt is to return all Council property including the Council vehicle and any Council documents, keys, passes, credit card etc to Acting General Manager Infrastructure Services and Planning, Luke Haddow. Ms Cupitt is also required to vacate the Council residence no later than 15 November, 2024. She should contact Luke Haddow on [redacted], no later than close of business on 4 November, 2024 to discuss the handover process.
Council formally reminds Ms Cupitt of her ongoing contractual obligations in relation to confidentiality, non-disparagement, intellectual property, per clauses 10 and 11 in her Employment Contract.
Ms Cupitt will receive accrued employment entitlements, including the payment in lieu of notice, with her final pay. If Ms Cupitt has questions regarding this letter or requires a Certificate of Service or Separation Certificate she may contact Acting Human Resources Manager, Mark Lewis on [redacted].
I refer to our letter of 28 October 2024 in relation to your employment with Roper Gulf Regional Council (Council), and the response we received from your lawyer, Mr Grove, on 30 October 2024.
We note that you did not offer any response or denial of allegations set out in our letter, or request more time for a response, but that the lawyer simply requested various additional information and particulars.
It is our position that the allegations in the show cause letter were very clear as written, and no further information or material was necessary to permit you to understand what was being alleged or provide a fair opportunity to respond.
In any event, our investigations into matters that led to the show cause letter have been ongoing, as below.
Our 'show cause letter' of 28 October 2024 set out 3 serious allegations about your conduct.
We are content, based on enquiries to date, that you took the following steps:
As touched on in the show cause letter, these actions significantly hampered Council's ability to properly function and fulfil various important obligations.
We have also confirmed / become aware, respectively:
We have brought these discrepancies to the attention of the appropriate entities and authorities, to ensure ongoing good governance, and to ensure the confidential and financial interests of our clients and stakeholders are persevered and maintained.
Due to the seriousness of these matters, and the significant detriment and risk caused to Council operations by the Portal access issues (as above), Council has determined to terminate your employment.
Accordingly, your employment is terminated as of today 4 November 2024, and you will be paid three (3) weeks salary in lieu of notice in your next pay cycle on 7 November 2024.
You are to return all Council property including the Council vehicle and any Council documents, keys, passes, credit card etc to Acting General Manager Infrastructure Services and Planning, Luke Haddow. You are also required to vacate the Council residence no later than 15 November 2024. You should contact Luke Haddow on [redacted], no later than close of business on 5 November 2024 to discuss and facilitate the handover process.
Council formally reminds you of your ongoing contractual obligations in relation to confidentiality, non-disparagement, intellectual property, per clauses 10 and 11 in her Employment Contract.
You will receive accrued employment entitlements, including the payment in lieu of notice, with your final pay. If you have questions regarding this letter or require a Certificate of Service or Separation Certificate you may contact Acting Human Resources Manager, Mark Lewis on [redacted].
"396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 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.
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(b) to establish procedures for dealing with unfair dismissal that:
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.
Note: The expression "fair go all round" was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.
382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(ii) an enterprise agreement applies to the person in relation to the employment;
(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.
(1) An employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(a) a period of service as a casual employee does not count towards the employee's period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised; the period of service with the old employer does not count towards the employee's period of employment with the new employer.
A person has been unfairly dismissed if the FWC is satisfied that:
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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."
"[45] In these circumstances the meetings were little more than a mechanical process held to satisfy a technical requirement and provide the appearance that a proper process had been followed. The applicant could say or do nothing that would have had any likelihood of changing the pre-determined outcomes. Similarly, the formal written warnings that were issued at the conclusion of these meetings were an integral part of the pretence.
[59] The process that the employer adopted involving disciplinary meetings that had predetermined outcomes and pre-prepared warning documents was seriously flawed such that the applicant was denied natural justice. Although the applicant was provided with various opportunities to respond to allegations made against him the employer acknowledged that any response provided by the applicant would be ignored..."
"the council's staff must be treated fairly and consistently and must not be subjected to arbitrary or capricious decisions..."
"[64] In the present case, the mere fact that Mr Gates deleted a virtual drive on his corporate laptop was not a valid reason for dismissal.
[65] Therefore, none of the reasons for dismissal stated to Mr Gates on 29 or 30 April 2021 were valid reasons for dismissal.
[73] The report quantifies Blugibbon's suspicions but does not actually establish that any wrongdoing by Mr Gates. Mr Whitaker knew that there was log in and download activities that made him suspicious about Mr Gates' actions and intentions. The report simply provides dates and times of the log in and download activities. The suspicion held by Mr Whitaker was that Mr Gates was accessing and/or taking Blugibbon's confidential information when he undertook the log in and downloading activities. However, the report does not identify any particular files that Mr Gates copied or stole or even that files were copied or removed from the laptop. The expert speculated about why a folder called "New Folder" was created on the Desktop, but this part of the report is no more than speculation.
[74] Even though the report was not finalised until 3 weeks after dismissal, none of the activities described in the report, of themselves or even in total, constitute a valid reason for dismissal."
"may have been seen as threat because she was a high performer in her employment and ... she showed up her other underachieving colleagues who would have been envious of her high excellent work performance and were concerned at the high integrity and her probity in governance practices she sought from her employer the Respondent."
• have sought to make a silk purse out of a sow's ear.
• are claiming that "two plus two equals five" ("2 + 2 = 5") as stated in chapter seven of the book 1984 by George Orwell."
"...may be threatened by the Applicant's Mrs Clare Cupitt exemplary work performance and he disparages and puts her down and undermine Mrs Clare Cupitt because it is contended that he is concerned otherwise about his own inadequacies which will be exposed."
"During this meeting, I received feedback from the Mayor that Clare's interactions with community members and stakeholder was problematic. That in his view, she needed to vastly improve her relationships with stakeholders. At no time did the Mayor direct me to take any action against Clare or provide an opinion on what I should do as her manager - this was simply feedback."
"(a) the claim that Mr Hurst was told on the telephone that the applicant was responsible for his purported deletion from the portal - a claim also contradicted by the Services Australia response;
(b) the claim that the applicant 'badmouthed' the respondent at a private gathering prior to what the respondent regarded as the time of her formal termination;
(c) the claim that the manager responsible for the reporting failures described in the Culturally Connected Care Solutions report was forced to resign because of her conduct (and no other reason) and as an alternative to dismissal".
"abject failure of the respondent's case on this issue, given the grave seriousness of the allegations, deserves particular admonishment and sanction by the Commission - those allegations being such that they ought not be made unless clear and cogent proof is available to the person making the allegation".
"Unauthorised access to or disclosure of, or failing to prevent or report an unauthorised access to or disclosure of confidential information (when one was in the position to do so) is considered a serious disciplinary matter, and may constitute several offences depending on the nature of the disclosure."
"a. Payment to the Applicant of $25,842.49 (gross and less applicable tax) plus superannuation based on the following calculation on loss of income;
i. 87 days from 4 November 2024 to 30 January 2025 take 3 weeks = 66 days @$352.85 per day or $23,288.32; plus
ii. 49 days from 31 January 2025 to 20 March 2025 @ $19,026 / 365 = $52.126 per day or $2,554.17."
"[27] The key proposition that Mr Barber puts forward and asserts in Ground 1, is that the Commissioner considered and made findings on conduct matters that Veolia did not rely on in their show cause or termination letter or as conduct justifying a conclusion that there was a valid reason for dismissal and about which Mr Barber was not cross-examined. Grounds 1(a) and (b)contend that Mr Barber was denied procedural fairness by reason of the fact that the Commissioner made findings about, and relied upon as part of a valid reason for dismissal, alleged conduct on the part of Mr Barber on 12 April 2024 about which Veolia did not seek findings or submit constituted a valid reason for dismissal.
[28] It is open to the Commission to find that there is a different valid reason for dismissal, other than the one put forward by the employer. This is made clear in Newton where the Full Bench said:
The Commission is bound to determine whether, on the evidence provided, facts existed at the time of termination that justified the dismissal. Contrary to the Appellant's submission, in determining whether there was a valid reason for the dismissal the Commission is not confined to the reason advanced by the employer (either at the time of dismissal or during the course of the subsequent hearing). A valid reason for dismissal can be any valid reason underpinned by the evidence provided to the Commission.
[29] However, if the Commission determines a valid reason for dismissal exists which has not been put forward by the employer, the Commission must act judicially and afford the parties procedural fairness. An applicant must be put on notice and have a fair opportunity to address a matter the Commission proposes to rely upon adverse to the applicant's case. That principle was explained by the Full Bench in Newton and expanded upon in other decisions including Steed v Active Crane Hire Pty Ltd [2023] FWCFB 152. In Steed, the Full Bench referred to Newton and said:
The Full Bench went on to find that Mr Newton was not afforded procedural fairness in respect of the Deputy President's findings of dishonesty and the imputed motive for the dishonesty, and that a finding of the type made by the Deputy President carries with it an obligation to accord the relevant party procedural fairness. The Full Bench concluded "absent the matter being squarely put by the cross-examiner it was incumbent on the Deputy President to make the challenge himself".
The principle to be derived from Newton and the cases cited by the Full Bench, is that where a finding on a critical issue or factor adverse to a party is being considered by a Member of the Commission hearing a matter, and the finding does not follow from the evidence or relates to a contention that was not raised in the hearing of the matter, the Member conducting the hearing should put the proposition to the parties and the basis for it, so that the affected party has an opportunity to respond. This is particularly so when the finding is foundational to a conclusion about a matter central to the case advanced by the party. A failure to do so will generally amount to a denial of procedural fairness
[30] The obligation of the Commission to act judicially and that the principles of natural justice are applicable to proceedings before the Commission are not in doubt. We are conscious, however, that the Commission is a statutory body and its functions are subject to the terms of the Act. Section 577 of the Act directs that the Commission must perform its functions in the following manner:
(1) The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
[31] What is required to ensure that a party is on notice of, and has a fair opportunity to address, matters of significance to a decision of the Commission will vary from case to case. The nature of the matters at issue, the manner in which the proceedings are conducted and the characteristics of the parties involved are likely to be relevant as will the statutory context in which the Commission exercises its functions. For example, where the parties are self-represented, in order to fulfil the Commission's functions, a member may be required to determine the matter in a different manner to what is put forward by the parties. This is especially so where the arguments of the self-represented parties are misconceived. The member of the Commission may, in such circumstances, be compelled to take on a more inquisitorial role to ascertain the truth of what occurred.
[32] Further, whilst a member of the Commission must generally put a person on notice if they intend to make adverse findings on issues which are not otherwise apparent from the position adopted by the parties, procedural fairness does not require a tribunal to give a running commentary upon what it thinks about the evidence that is given or the issues which arise in the proceedings. In Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594, French CJ and Kiefel J explained:
Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision.
[33] Where a denial of procedural fairness is alleged on appeal, the question will be whether the appellant had a fair opportunity to present their case and to deal with matters of significance to the decision made at first instance."
[43] A number of features of the conduct of the proceedings are significant. First, both parties were legally represented. Directions were issued for the filing of written submissions and evidence in advance of the hearing which was done. The written submissions filed on behalf of Veolia did not identify that it contended there was a valid reason for dismissal as a result of the conduct of Mr Barber on 12 April 2024 other than in the manner set out in the allegations letter of 23 April 2024 and the final warning letter of 9 May 2024. As Mr Barber submitted, if he had known that Veolia intended to rely on any additional conduct on his part on 12 April 2024as constituting a valid reason for dismissal, it may have made different submissions or sought to lead other evidence in relation to the events of that day.
[44] Second, Veolia conducted the proceedings before the Commissioner on the same basis. Counsel for Veolia did not make opening oral submissions or otherwise suggest that it intended to run a case which departed from the written submissions filed in advance of the hearing. Although Mr Barber denied the substance of the additional allegations in his witness statement in reply or at least their most serious aspects, Veolia did not squarely cross-examine him in relation to the additional allegations. At most one question was asked in relation to one aspect of the alleged threats and about the use of the photocopier. It was not put to Mr Barber that his account should not be accepted. In our opinion, Mr Barber did not have a fair opportunity to deal with the additional allegations in his oral evidence.
[45]Third, in final oral submissions on behalf of Mr Barber, his counsel limited his submissions to addressing the allegation that Mr Barber had breached confidentiality.41Having regard to the manner in which Veolia conducted its case, Mr Barber was entitled to structure his case and make his closing submissions on the basis that allegations in relation to 12 April 2024 that it was necessary to address were limited to the confidentiality issue. The oral submissions of counsel for Veolia similarly addressed the allegation that Mr Barber had failed to keep the matter confidential.42There was one reference in Veolia's oral closing submissions to Mr Barber having threatened managers. In submissions in reply, counsel for Mr Barber objected to the submission being made on grounds the matter had not been subject to cross-examination.
[46] On a fair reading of the decision, the Commissioner relies on matters, including allegedly threatening his managers, causing a commotion, trying to make 50 copies of his stand down letter and refusing multiple directions to leave the workplace, which Mr Barber did not have a fair opportunity to address in the proceedings. There was a denial of procedural fairness. We further accept that the denial of procedural fairness was material. The test of materiality does not present a high threshold. In Nathanson v Minister of Home Affairs [2022] HCA 26; (2022) 276CLR 80, Kiefel CJ, Keane and Gleeson JJ said:
There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of "reasonable conjecture" is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive "story" of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, "reasonable conjecture" does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of "reasonable conjecture", correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.
[47] Further, in Stead v State Government Insurance Commission (1986) 161 CLR 141, the plurality of the High Court held:
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.
[48] Although the conduct on 12 April 2024 formed only one part of the valid reason for dismissal, if Mr Barber had been on notice that the Commissioner was considering making findings against him for threatening his manager, causing a commotion, trying to make photocopies and refusing to leave, he may have led further evidence of what happened on that day, may have made additional submissions and may have conducted the cross-examination differently. This may have changed the outcome, particularly in light of the Commissioner's comments that no one incident by itself formed a valid reason for dismissal. Accordingly, the denial of procedural fairness is material and appeal grounds 1(a) and 1(b) are upheld."
"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."
"The above extract is authority for the proposition that a termination of employment may be:
"[24] 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".
"In broad terms, the right is limited to cases where the employer is able to satisfy the Court of a valid reason or valid reasons for terminating the employment connected with the employee's capacity or performance or based on the operational requirements of the employer. ...
In its context in s 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must "be applied in a practical, commonsense way to ensure that" the employer and employee are each treated fairly...".
"... the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason."
"The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved."
"The standard of proof remains the balance of probabilities but 'the nature of the issue necessarily affects the process by which reasonable satisfaction is attained' and such satisfaction 'should not be produced by inexact proofs, indefinite testimony, or indirect inferences' or 'by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.'"
"Dear Mr David Hazlehurst, CEO of Services Australia
Chambers has been provided Mr McDonald's email address as a means of contacting Services Australia. Commissioner Riordan writes to Mr David Hazelhurst, via Mr McDonald, as follows.
Commissioner Riordan notes that we have a matter which is basically 99% heard, in relation to which the Commissioner is seeking information from Services Australia which is absolutely critical to the outcome of the hearing.
We are looking for information pertaining to Roper Gulf Regional Council, in relation to their IT system and identity of the IP address and location of the IP address of the person who deleted the CEO from their account. The relevant period is from 1 August 2024 to 11 September 2024.
Can you please confirm receipt of this correspondence, and that this request has been provided to Mr Hazlehurst?"
"Services Australia (the Agency) has investigated the Aged Care Provider Portal (ACPP) and can advise the following about Mr David Hurst:
We note that Mr Hurst has created two separate Provider Digital Access (PRODA) accounts used to authenticate his identity as part of the access to multiple Services Australia systems including Aged Care. One of those PRODA accounts is linked to Aged Care and one is not.
As the duplicate account for Mr Hurst was likely causing some technical issues, we have worked to resolve these on his behalf. The duplicate account has now been deactivated and Mr Hurst should continue to use the ongoing account ([redacted]) when accessing the Aged Care Provider Portal.
We also note Mr Hurst has never had his record removed from the Child Care Subsidy system. Mr Hurst has no current or historical record attached to the Child Care Provider records for the specified period of 1 August 2024 to 30 August 2024.
While outside of the specified period, our records show that Mr Hurst was added to the Roper Gulf Regional Council as a Person with Management and Control from 3 December 2024. Mr Hurst has not been removed or deleted from the Child Care Subsidy system records since this date."
I have taken the response from Services Australia into account.
"MR WITHNALL: A single question in re-examination: Ms Cupitt, did you take any action at any time to cut Mr Hurst's or Ms Alam's access to anything?---No, I did not."[27]
"What was the password to get into your laptop then?‑‑‑I would say that it was [redacted].
Did anybody note it?‑‑‑Cristie Geer would have known because she had had to log into - there's, like a vehicle tracking app portal and she'd logged into that. Before I used the same password for everything, but they also had my work phone which they didn't need my password for, it was already open, they could just open my phone and they would have all my emails anyway without the need for a password on my work phone."[31]
"The standard of proof remains the balance of probabilities but 'the nature of the issue necessarily affects the process by which reasonable satisfaction is attained'[32] and such satisfaction 'should not be produced by inexact proofs, indefinite testimony, or indirect inferences' or 'by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.'"
"The tribunal must feel an actual persuasion of its occurrence or existence before it can be found... Reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved...In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
"We accept the appellant's submission that in conducting a disciplinary inquiry an employer is not required to adopt the standards applied to a judicial inquiry. In this regard we adopt the following remarks by Heerey J in Schaale v Hoechst Australia Ltd (1993) 47 IR 249 at 252:
"It would be harsh, unjust and unreasonable for an employer to dismiss an employee summarily in the ground of serious misconduct without taking reasonable steps to investigate those allegations and give the employee a fair chance of answering them: see Gregory at 413; 471; Wheeler v Philip Morris Ltd (1988) 32 IR 323 at 346; [1989] FCA 230; 97 ALR 282 at 306.
In my opinion the respondent's conduct in this regard did not breach the requirements of the award. The allegation against Mr Schaale was a clear and simple one. Did he breach security of climbing over the fence? The award has to operation "in a practical way in a commercial and industrial environment": Gregory at 413; 471. Employers are not required to have the skills of police investigators or lawyers. By inspecting the site of the alleged entry and taking statements from potential witnesses it seems to me the respondent acted quite reasonably. In the interview on the following morning the allegation was put very clearly to Mr Schaale and he persisted in an account which the respondent was reasonably entitled to reject."
It is clear from the above extract that what is required is that the employer take reasonable steps to investigate the allegations and give the employee a fair chance of answering them. That did not occur in this case. Both of the points we have referred to above highlight the inadequacy of the Inquiry. The Inquiry Officer did not do all that was necessary. All of the relevant material was not considered and this applicant was not given certain documents which were relied on by the Inquiry Officer. In our view the Inquiry was flawed and Mr Uink was not accorded procedural fairness. This failure was not a mere technical breach and when considered with the other circumstances in the case there was a sufficient basis for the Commissioner to conclude that the termination was harsh, unjust or unreasonable."
"Facts which existed at the time of the dismissal but which only come to light after the dismissal might either:
Findings made by an inquiry established by the employer will be relevant to the Commission's determination of the issues before it provided it is established that:
- the employer conducted a full and extensive investigation into all of the relevant matters as was reasonable in the circumstances;
- the employer gave the employee every reasonable opportunity to respond to allegations; and
- the findings were based upon reasonable grounds.
While such findings are relevant they do not conclusively determine whether the termination was harsh, unjust or unreasonable. That issue is to be decided by the Commission on the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient inquiry, that that employee was guilty of the conduct which resulted in termination.
A termination may be unjust because, on the evidence before the Commission, the employee was not guilty of the misconduct on which the employer acted. Further, a termination may be unreasonable because it was decided on inferences which could not reasonably have been drawn from the material before the employer. Even where the findings of an employers enquiry are reasonable the Commission may conclude that a termination of employment on the basis of those findings was harsh because the penalty was disproportionate to the misconduct [Byrne v Australian Airlines Ltd at 465 per McHugh and Gummow JJ]"
Section 387(d) - Any refusal of a support person
Section 387(f) - Size of Employer and Section 387(g) - Dedicated HR specialists
"390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies."
(1) An order for a person's reinstatement must be an order that the person's employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person's employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:
(b) the period of the person's continuous service with the employer, or (if subsection (1A) applies) the associated entity.
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement."
(1) An order for the payment of compensation to a person must be an order that the person's employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer's enterprise; and
(b) the length of the person's service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
(3) If the FWC is satisfied that misconduct of a person contributed to the employer's decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal.
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period - the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations."
[1] The Applicant cited Lohse v Arthur (No 3) [2009] FCA 1118.
[2] The Applicant cited and relied on the decisions in Northern Territory of Australia v Lie Yao [2024] NTSCFC 1, which upheld Judge John Neill's decision of Lie Yao v Northern Territory of Australia [2022] NTWC 004; Maria Rust v Northern Territory of Australia [2024] NTWHC 2; [2015] FWC 6556; [2017] FWC 4988; [2018] FWC 1455; [2021] FWC 1364; [2021] FWC 4507.
[3] Jennifer Watts v Ramsay Health Care [2018] FWC 1455.
[4] Michael Crowley v Trustees for the Roman Catholic Church, Archdiocese of Canberra and Goulburn [2019] FWC 4643; Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371.
[5] The Applicant provided an additional footnote as follows: "The termination letter of 1 November 2024 from Cozens Johansen demands the return of "all Council property including the council vehicle and any Council documents, keys, passes, credit card etc" with no mention of IT equipment - perhaps the most sensitive of all Council property that could be retained by a departing employee".
[8] Exhibit 3; Digital Hearing Book page 119.
[12] Witness statement of Mr David Hurst at [119]-[122].
[13] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24]; Joseph Duncan v Complete Belting Solutions [2023] FWC 804 at [52]; Jason McGown v Hired Labour Pty Ltd [2022] FWC 1450 at [26].
[16] Senathirajah Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333.
[17] Witness statement of Ms Caroline Clare Cupitt at [43].
[24] Briginshaw v Briginshaw [1938] HCA 34 (30 June 1938), [(1938) [1938] HCA 34; 60 CLR 336]; cited in Barber v Commonwealth of Australia as represented by the Department of Parliamentary Services [2011] FWA 4092 (Thatcher C, 6 July 2011) at para. 33, [(2011) 212 IR 1].
[28] Witness statement of Mr David Hurst at [67].
[29] Witness statement of Ms Caroline Clare Cupitt at [43(k)].
[32] Briginshaw v Briginshaw [1938] HCA 34.
[34] Print 7680 (AIRCFB, Ross VP, Drake DP, Palmer C, 24 December 1997).
[35] Print Q1625 (AIRCFB, Ross VP, Polites SDP, Hoffman C, 5 June 1998); citing Bi-Lo Pty Ltd v Hooper (1994) 53 IR 224 at pp. 229-230.
Printed by authority of the Commonwealth Government Printer
Mrs Caroline Clare Cupitt
Roper Gulf Regional Council [2025] FWC 1725
(2011) 241 CLR 594
(1986) 161 CLR 141
(1993) 47 IR 249
(1988) 32 IR 323
(1995) 62 IR 371
(1995) 185 CLR 410
(1998) 84 IR 1
(1998) 84 FCR 483
(2011) 212 IR 1
(1994) 53 IR 224
(1998) 88 IR 21