s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application dismissed

• [1] The Applicant Mrs Sandra Archer has applied to the Fair Work Commission for a remedy, alleging that she was unfairly dismissed from her employment with GTC Contracting Pty Ltd ("GTC Contracting"). For the reasons below I have decided to dismiss the application.

• [2] Mrs Archer made this application under section 394 of the Fair Work Act 2009 (Cth) ("the Fair Work Act"). It was made within the period required under subsection 394(2) of that Act. The matter did not resolve by conciliation. I listed the matter for hearing or determinative conference on 11 and 12 December 2025 to determine the application. After hearing from the parties I decided to proceed by way of determinative conference. At that determinative conference it was common ground between the parties that:

(a) Mrs Archer had initially been employed by GTC Contracting's holding company, now named GTC-Gen Limited, but her employment had transferred to GTC Contracting in August 2023, and she was employed by GTC Contracting as at the date of her dismissal;

(b) at the date of her dismissal Mrs Archer was employed in the position of Business Manager, and this was a senior role within the business;

(c) Mrs Archer had been dismissed, and, specifically, that GTC Contracting had summarily dismissed Mrs Archer from her employment on and effective from 13 June 2025;

(d) Mrs Archer was a person protected from unfair dismissal for the purposes of section 382 of the Fair Work Act.

• [3] Prior to the determinative conference there had been an issue as to whether GTC Contracting or the holding company had been Mrs Archer's employer at the time of the dismissal, but GTC Contracting conceded at the conference that it had been the employer.

• [4] GTC Contracting maintained the dismissal was for serious misconduct and did not contend it was for genuine redundancy. The two live issues under section 385 of the Fair Work Act were whether the dismissal was harsh, unjust or unreasonable (s 385(b)) and whether the dismissal was not consistent with the Small Business Fair Dismissal Code ("the Code") (s 385(c)). By operation of section 396 of the Fair Work Act, the question of whether the dismissal was consistent with the Code, if it applies, must be dealt with first.

• [5] The parties were also in dispute as to what remedy, if any, should be ordered in the event that Mrs Archer was successful in respect of both of those issues.

• [6] Mrs Archer sought permission to be represented by her husband. GTC Contracting did not oppose that request. I granted permission and Mrs Archer was represented by her husband Mr Michael Archer throughout the determinative conference. Mr Michael Williamson appeared for GTC Contracting. He had with him another director, Mr David Pope.

• [7] Mrs Archer called herself and her husband, also a former employee of GTC Contracting, as witnesses. GTC Contracting called Mr Henk Ludik as a witness. With permission, Mr Ludik gave evidence remotely by video. When Mr Ludik was giving evidence in chief Mr Archer took issue with the tender of a particular document, which Mr Ludik indicated he had obtained from Mr Pope. I asked Mr Archer whether he would like the Respondent to be given the opportunity to call Mr Pope to give evidence in chief only about that document. After considering this, Mr Archer said he would like Mr Pope to be called. I indicated to Mr Williamson and Mr Pope that I would not oblige Mr Pope to do so but that he could avail himself of the opportunity if he wished, noting that that would also involve making him available for cross-examination at large. After considering this GTC Contracting decided to call Mr Pope as well.

• [8] Mrs Archer filed an outline of submissions on 23 October 2025. GTC Contracting did not file an outline. Both parties made oral closing submissions. Mr Archer cited various cases in his closing submissions, and having heard him I formed the impression that he may have used artificial intelligence in preparing those submissions. I asked him whether that was the case and he told me it was. I asked him to provide a list of the cases he had cited, along with links, which he did during an adjournment. Once I received that list I indicated I would disregard the cases for which he had been unable to find citations or links. Mr Archer consented to that course of action.

• [9] Mrs Archer, via her written outline and her representative's oral submissions, submitted that the employer was not or was not really a small business for the purposes of the Fair Work Act because the only reason there were fewer than fifteen employees on 13 June 2025 was that her husband had been dismissed on 19 May 2025, and that dismissal was contested. She submitted that the Code did not apply. Alternatively, she submitted the employer did not have reasonable grounds to believe that her conduct was sufficiently serious to justify dismissal. She submitted that conduct giving rise to a warning she had received in May 2025 could not be relied upon because of "double jeopardy." Mrs Archer submitted there was no valid reason for dismissal, and that she had not been afforded procedural fairness. She submitted the failure to pay her entitlements including annual leave on termination made the dismissal unfair. She submitted Mr Archer had been dismissed to reduce the number of employees below fifteen. She also submitted that the real reason for her dismissal was to avoid paying her a redundancy payment, as the business was sold with effect a few days after the date of dismissal. She made submissions as to remedy.

• [10] GTC Contracting submitted that it was a small business when Mrs Archer was dismissed. It submitted it had reasonable grounds to believe that her conduct was sufficiently serious to justify dismissal. It pointed to three events: a phone call in August 2024 in which it submitted Mrs Archer had made threats to Mr Ludik, an incident on 15 May 2025 in which Mrs Archer had impeded a site visit by a potential buyer of the business, which had given rise to a subsequent suspension and final written warning, and a failure to comply with a demand of 4 June 2025 that, inter alia, she give the business full and unrestricted access to a Dropbox account containing company documents and data, which it had paid for, but which she had opened and operated using her own email address. It submitted that the senior nature of her role meant that she owed obligations to it that she had not met by failing to deliver up the documents, and submitted that her failure to do so had had significant adverse consequences, including in relation to its ability to meet regulatory and funding requirements. It submitted the Small Business Fair Dismissal Code applied to it, and that the dismissal had been consistent with the Small Business Fair Dismissal Code. It submitted I should not find it had dismissed Mr Archer to fall below the fifteen employee threshold, that I should accept that it had been unaware of that threshold at the time of Mr Archer's dismissal. It submitted it had not dismissed Mrs Archer to avoid liability for a redundancy payment but because of her misconduct.

• [11] Section 388 of the Fair Work Act provides for the Minister to declare a Small Business Fair Dismissal Code ("the Code"). Subsection 388(2) provides that a person's dismissal was consistent with the Code if the employer was a small business employer at the relevant time and complied with the Code in relation to the dismissal. By operation of that subsection the relevant time is immediately before the time of the dismissal, or at the time the person was given notice of the dismissal, whichever is earlier. For the purposes of the Fair Work Act, the term "small business employer" is defined by section 23, which provides:

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee's employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being terminated; and

(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.

• [12] In this case I find the relevant time was 13 June 2025. Mr Ludik's uncontested evidence was that GTC Contracting was the only subsidiary of GTC-Gen Limited at that time. No-one put forward any evidence to suggest there were any other related bodies corporate. It was common ground between the parties that including Mrs Archer but excluding Mr Archer there were no more than fourteen employees of the entity as at 13 June 2025.

• [13] The parties were in contest as to whether Mr Archer should be counted as an employee for the purposes of deciding whether the respondent was a small business employer. Mrs Archer made various submissions about the fairness or otherwise of that dismissal, and the motivation for it. I am not persuaded and do not find that Mr Archer was dismissed to reduce the number of employees below fifteen. I accept Mr Ludik's evidence that prior to reading the approved form for an employer response he had been unaware of the potential jurisdictional objection or the term "small business employer," and that prior to the time that form was completed the Board had never, to his knowledge, discussed the issue of the company being a "small business employer." It is therefore not necessary to consider whether, if there had been deliberate avoidance, what effect, if any, that avoidance would have had in relation to whether the respondent was a small business employer. Nor is it necessary for me to make any finding about the fairness or otherwise of Mr Archer's dismissal.

• [14] Mrs Archer argued that because Mr Archer was contesting his dismissal at the time she was dismissed, he was still "being dismissed" or his employment was "being terminated" for the purposes of subsection 23(4). I do not accept this. Mr Archer's employment had come to an end weeks earlier. I find he was not an employee as at 13 June, whether by operation of subsection 23(4) or otherwise.

• [15] It follows that I find the Small Business Fair Dismissal Code applies to the dismissal in these proceedings. The Code, relevantly, is as follows:

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.

• [16] The "Summary dismissal" section of the Code applies to dismissals without notice on the ground of serious misconduct as defined in reg.1.07 of the Fair Work Regulations 2009 (Cth) ("the Regulations"), in reliance on section 12 of the Fair Work Act.[1] (Regulation 1.07 relevantly provides:

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

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

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

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

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

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

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

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

• [17] The evidence shows that GTC-Gen Limited and GTC Contracting had shared directors on the two boards, operated consolidated accounts and for practical purposes often operated as if they were a single entity. For convenience, where I am referring to them both collectively, I will use the term "the company". The evidence was that the Archers were shareholders.

• [18] In mid 2024 the company installed Mr Ludik as interim Managing Director (according to Mr Ludik's witness statement, though he also referred to his position as interim CEO). Mr Archer had been the Managing Director of both entities since the company now known as GTC-Gen Limited had acquired GTC Contracting. Mr Ludik attributed his (Mr Ludik's) appointment to financial difficulties.

• [19] On 6 August 2024, Mrs Archer rang Mr Ludik and berated him. She told him that she did not know how he could justify his income. The audio recording of that call demonstrates that Mr Ludik responded with equanimity and provided information to Mrs Archer. The recording reveals that in that call Mrs Archer had said:

"Everything about this company is in Michael's head. And everybody that we are in contact with, everybody that we sell to, that supplies to us, knows us intimately. And if Michael isn't working for Greentech Cement Limited then they would move over and they would just supply and be customers of Michael on his own. So you've got a lot to lose here, Henk, and I would be pulling my head in if I were you, but if Michael walks away, then I walk away..."

• [20] The recording reveals that there was a disagreement between Mr Ludik and Mrs Archer about whether her remarks constituted a threat. Mr Ludik then indicated the board was acting in the interests of all shareholders. Mrs Archer responded with "... I've got 46% shareholding and we have the extra 7% to be majority, and voting people off the board...".

• [21] The recording reveals Mrs Archer saying she had shared something among everybody at the company. Mr Ludik is then heard to say that that was not appropriate. Mrs Archer's telling response was "well it was, because I'm not on the board, so what responsibilities do I have as far as appropriateness goes."

• [22] Mr Ludik's evidence, which was not contested, was that by late 2024 and early 2025, the board was actively pursuing options for recapitalisation and/or sale to avoid the risk of insolvency.

• [23] By 15 May 2025 the company had been engaging with potential buyers, and one potential buyer had a site visit scheduled for that day. Both Mr and Mrs Archer were in communication with the potential buyer that day. The following day the company, under the hand of Mr Williamson, wrote to Mrs Archer raising allegations of misconduct that it asserted constituted serious misconduct, and suspending her from her employment with GTC Contracting and/or GTC-Gen Limited. The allegations were that on 14 May she had interfered with a lawful Board directive and had sought to unilaterally cancel the scheduled site visit, which was in relation to a board-approved transaction; that she had knowingly made statements that were unauthorised, false or misleading, specifically that the company had obtained legal advice that it could not proceed with the proposed transaction and the company was prevented from proceeding because of an injunction granted by a competent court; and that she had unlawfully obtained or disclosed confidential board information for the benefit of herself and/or related parties (said to be Mr Archer and/or their trust).

• [24] Perhaps surprisingly Mrs Archer's initial witness statement, under the heading "events leading to my dismissal", does not deal with the events of 14 and 15 May, other than to observe that on 14 May her husband and Mr Pope had had a "material disagreement" regarding "the future direction of GTC and the sale of its assets." It does, in that section refer to the company's letter of 16 May, which is annexed. She says that letter was not delivered until 19 May 2025. It also refers to events involving her husband and Mr Pope, which it is not necessary for me to consider here.

• [25] Mrs Archer's written response to the employer at the time, which was annexed to her initial witness statement and dated 19 May 2025, conceded that she had sought to cancel the site visit but said that she engaged in her actions with the "sole intention" of upholding workplace health and safety standards, specifically company protocol enforcing that no external visitors were permitted on site without a formal induction and appropriate approval from management. The written response asserted that the second and third allegations lacked sufficient clarity and specificity. Her written response at the time concluded that she remained committed to maintaining the trust placed in her and to acting at all times in the best interests of the company.

• [26] Mr Ludik's witness statement did deal with the events of 14 and 15 May, but not firsthand. Mr Ludik repeated a second-hand account he said he had received from another director, that Mrs Archer had told the General Manager of the prospective buyer that:

(a) The sale process [in relation to the prospective buyer] was subject to a court-ordered legal injunction;

(b) The Company was legally prevented from proceeding with the proposed sale to [the prospective buyer];

(c) The [prospective buyer's] offer was to be withdrawn; and

• [27] It is not necessary for me to consider or give weight to that part of Mr Ludik's statement in and of itself; I set it out because Mrs Archer replied to it in her witness statement in reply, as follows:

"I note throughout this time period I genuinely believed that these matters were true and correct in respect of legal action and Court injunctions, as I had continually been informed and advised by multiple shareholders and stakeholders of GTC that such legal documents had been provided to GTC's Board and the directors of GTC. As Mr Archer had been continually removed and restricted from access to director related information and/or material, there was no evidence that disproved that the representations made to me by multiple shareholders and stakeholders of GTC, in respect of legal actions, were not incorrect. As such, I acted under the assumption that the information was true and correct. Therefore, I acted in a manner that I saw to be in the best interest of majority of the Shareholders and stakeholders of GTC, being the prevention of any conduct which violated a Court Order. Furthermore, while I do not agree with the balance of the paragraph, I note that this matter was dealt with under the Warning Letter and therefore should not be a relevant element for GTC's justification of the Purported Termination Letter. Furthermore, in relation to the cancellation of the site visit, I repeat the contents of the letter I sent to GTC on 19 May 2025, which remains unanswered."

• [28] This passage perhaps implies that Mrs Archer did in fact say something of the kind asserted by Mr Ludik, to the General Manager of the prospective buyer. At the same time it asserts that Mrs Archer relies on the letter of 19 May which indicates that her sole intention in respect of her actions was in relation to work health and safety.

• [29] Mrs Archer was asked about the events of 14 and 15 May while giving evidence in the determinative conference. She said she had been in contact with the potential buyer on 15 May. She said she could not recall whether she had also spoken to anyone from the potential buyer on 14 May. She conceded that she had told the buyer representatives that they could not come on site, and that she had mentioned potential court proceedings to them. She also conceded that she had been reckless as to, and did not know, whether there were potential court proceedings in respect of the company at that time.

• [30] There was also a significant amount of evidence about Mr Archer's communications with the potential buyer on 15 May 2025, including a Whatsapp message he agreed he had sent, and his concession that he had not only called them but had also organised to meet for coffee that same day. This evidence may arguably have been relevant circumstantial evidence to take into consideration if necessary to resolve a factual dispute about whether Mrs Archer had said or intimated to the potential buyer that there were court proceedings preventing its site visit. However given Mrs Archer's concession during her evidence I do not consider it necessary to decide whether Mr Archer's contemporaneous conduct should be taken into account.

• [31] In light of Mrs Archer's apparent concession in her witness statement in reply, and the explicit concession during the determinative conference, her written response to the company's letter of 16 May 2025 was disingenuous. Her conduct in talking to the potential buyer about potential court proceedings and her subsequent lack of forthrightness in responding when it was raised with her constituted serious misconduct given the senior and trusted role she held within, at least, GTC Contracting. Of itself it would have warranted dismissal. Nonetheless, the company instead gave her a first and final warning, in writing, and directed her to return to work. The warning letter, dated 21 May 2025, stated that her conduct had constituted serious misconduct. It went on to put her on notice, explicitly, that any future conduct of this nature or any breach of the company's policies or directions may result in immediate termination of her employment. The warning letter also stated that the warning would remain on her employee file and would be taken into account in any future disciplinary decisions.

• [32] The dismissal itself occurred only a few weeks later. It followed an issue as between the parties in relation to the company's data and documents. It was common ground between the parties Mrs Archer had opened a Dropbox account under her own email address. It was also common ground that neither GTC Contracting nor GTC-Gen Limited and their respective boards had access to the whole Dropbox account, only some folders stored within it. Mrs Archer had, in her initial witness statement, described the Dropbox account as a personal account, and had not mentioned that the company paid for it, but she later accepted that was the case after GTC's evidence included invoices for the account.

• [33] Mrs Archer's evidence was also that it had been an accepted business practice, and agreed by the company, that the company's information would be electronically stored in a Dropbox account created and owned by her, and that the company was aware, when the Dropbox was established that it would also house private and confidential information belonging to her and Mr Archer.

• [34] Mr Ludik's evidence was that the consequence of Mrs Archer's use of this Dropbox account without providing full administrative access was that the company did not have control over its own business records. He said that with due diligence in relation to the sale of GTC Contracting, it became crucial for the company to recover control of the Dropbox.

• [35] Mr Pope's evidence was that in early June, using a laptop previously in the possession of a former accounting and finance employee of the company, he was able to see the folder structure inside a folder in the Dropbox account named "01 GTC-Gen" or similar. He said he took a screenshot and provided it to the whole board, including Mr Ludik. He said he had access to some but not all of the subfolders within that folder.

• [36] In her witness statement, Mrs Archer said she received correspondence from the company demanding that she provide full and unrestricted access, and annexed a copy of that letter. It was common ground that the letter had been issued by the company in this regard on 4 June 2025. The letter was in the following terms:

Re: Immediate Demand for Access and Return of Company Data

It has come to the Company's attention that a significant volume of business-related data and information belonging to Greentech Cement Pty Ltd and/or GTC Contracting Pty Ltd is currently stored in a Dropbox account under your personal control.

This includes, but is not limited to, company documents, operational records, correspondence, intellectual property, and commercially sensitive files. Please be advised that:

1. All such information constitutes Company property and remains the exclusive property of the Company, regardless of where it is stored or by whom;

2. You are not authorised to retain, control, copy, delete, or disseminate any such materials;

3. The continued possession or withholding of this data may constitute a breach of confidentiality, conversion of Company property, and interference with Company operations.

• Provide the Company with full and unrestricted access to the Dropbox account and any other location where Company-related information is held;

• Deliver a full list of all Company documents currently stored in your possession or control;

• Confirm in writing that no Company documents have been deleted, altered, shared, or copied since your possession;

• Refrain from any further use or access of the Company's data unless expressly authorised in writing.

This demand is made without prejudice to the Company's rights to pursue injunctive relief, damages, and any other legal remedies available under common law, statute, or equity.

Please provide written confirmation of compliance by 5:00 PM on 05 June 2025. If you fail to comply, the Company reserves its right to initiate urgent legal proceedings without further notice.

• [37] Mr Ludik's evidence was that "Greentech Cement Pty Ltd" is the former name of GTC-Gen Limited. Whatever the history of the Dropbox arrangement, the letter of 4 June was unequivocal and provided a clear set of directions to Mrs Archer. These directions were lawful and reasonable given the company funded the account and it had company documents stored within it.

• [38] Mrs Archer's evidence in her initial witness statement was that the Dropbox account was a personal account in her name, used in good faith to support the company's operations during her engagement. She said for privacy and legal reasons she was unable to grant full administrative access to this personal account, to the company. She repeated the assertion that she was "unable" to grant administrative control because of the personal information stored in the account, in her witness statement in reply. This was, again, disingenuous. She agreed during the determinative conference that she could have moved her private information out of the account.

• [39] In her initial witness statement she said that, instead, she granted folder-level access to the directors. She did not elaborate on this assertion in her witness statement in reply. At the determinative conference she gave a different account, which is that she created a different folder, moved folders into it, and gave access to that folder. She then said that she had asked the IT person at the business to create a whole new Dropbox account in Mr Ludik's name, and to move the new folder into that account. She told the Commission that she was still in contact with the IT person as he was someone she had known for around a decade. She offered no explanation as to why, then, she had not called him as a witness. She also did not explain why this new account of what she had done was not included in either of her witness statements. For completeness I note this was also not dealt with in Mr Archer's statement, but of course he may not have been party to any actions Mrs Archer took in relation to the Dropbox at the time.

• [40] For his part Mr Ludik said he was unaware of any Dropbox being set up in his name or of any action whatsoever that Mrs Archer took after receiving the letter of 4 June 2025, to provide access to all of the company's data and documents in her possession.

• [41] Mr Pope's evidence was that on 5 June 2025 he saw the subfolders disappearing from the folder of which he had taken a screenshot, one by one. He took this to mean they were being deleted or access was being revoked.

• [42] Despite this issue, in relation to the custody and production of the company's documents and data, being the basis for the company's finding of serious misconduct that led directly to her dismissal, Mrs Archer led no evidence of any efforts to tell the author of the letter of 4 June - the board chair - what she had done to comply with the directions contained within it. She led no evidence that she had made any efforts to comply with those directions other than the evidence I have referred to above. Her evidence in respect of the first of the directions was that she did not comply, but her explanation about why she adopted an alternate course makes clear she considered she had a justification for not doing so.

• [43] Mrs Archer provided a screenshot of an email from another director, of 5 June, in the following terms:

Subject: Re: UPDATE: Demand for Access and Return of Company Data.

Are you available for a short call? I realize this must be stressful for you and I do appreciate the assistance you've been giving me in getting information to try and secure the continuation the company in difficult times. I'm just looking to check in with you.

• [44] Neither party called the director in question as a witness so the meaning of this email can only be considered by inference or speculation. It was confirmed the director in question was still on the board at the date of the determinative conference. Mr Ludik gave uncontested evidence that the Archers' trust, as at the date of his witness statement, currently owned 31.29% of the available shares in GTC-Gen Limited. It seems likely either party could have called the director concerned.

• [45] The email of 5 June, apparently from that director, was attached to Mrs Archer's witness statement. It had been sent to an email address that she had not had access to after the dismissal. She told the Commission that she had taken a screenshot of the email while still employed. This of course raises the question why she did not take a screenshot of the email in respect of which this was a reply (i.e. the email with the subject UPDATE: Demand for Access and Return of Company Data), or, if she did, why it was not included. Mrs Archer was not able to explain this at the determinative conference.

• [46] In the circumstances to which I have just referred this email of 5 June is of little assistance to me in considering this application.

• [47] There does not seem to be any evidence of any communication between Mrs Archer and Mr Ludik, or between Mrs Archer and the chair of the board, in the period between the date the letter of demand was sent on 4 June, and the date of dismissal, to indicate that Mrs Archer was willing to, or was attempting to, comply with the directions in that letter.

• [48] In light of Mrs Archer's past conduct, including both the phone call of ten months earlier, and her conduct in disrupting a site visit by a potential buyer in a time of financial difficulty three weeks before, and in light of her lack of responsiveness to the directions of 4 June 2025 relating to a serious and significant matter of access to the company's own data and documents during a period of the sale of the business, GTC Contracting had reasonable grounds to believe that Mrs Archer had engaged in misconduct, and that that misconduct was sufficiently serious to justify immediate dismissal. I find that on 13 June 2025 GTC Contracting (and GTC-Gen Limited) believed on reasonable grounds that Mrs Archer's conduct was sufficiently serious to justify immediate dismissal.

• [49] It was open to GTC Contracting to rely on the prior warning of 21 May 2025. Mrs Archer's submission that there is some 'double jeopardy' principle preventing it from doing so cannot be accepted. In any case, under the Code, given my finding above, no warning was necessary.

• [50] I find that the dismissal was consistent with the Code. It follows that the application must be dismissed as the requirement of section 385(c) of the Fair Work Act is not met. In those circumstances it is not necessary for me to consider whether the dismissal was harsh, unjust or unreasonable. Nor is it necessary for me to consider the issue of remedy.

• [51] I order that the application is dismissed.

[1] Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services [2015] FWCFB 5264; 268 IR 1 at [38]).

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