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[152]
[2026] FWC 910
General information, not legal advice.
Fair Work Commission
2026-03-19
Original judgment source is linked above.
s.394 - Unfair dismissal
Sharn Enterprise Pty Ltd ATF Kapoor Family Trust (T/A Little Ted's Childcare)
Application for an unfair dismissal remedy - jurisdictional objection: no dismissal - jurisdictional objection dismissed - termination unfair - harsh, unjust, or unreasonable - compensation ordered.
[1] This decision is related to the unfair dismissal application of Ms Anika Hamel (the Applicant). Ms Hamel made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting an unfair dismissal remedy. Ms Hamel alleged that she had been unfairly dismissed from her employment as an Early Childhood Teacher at Little Ted's Childcare Centre, Oxley. The Centre at the time of the events had recently been purchased by Sharn Enterprises Pty Ltd ATF Kapoor Family Trust (the Respondent/the Employer/Little Ted's/Sharn Enterprises). Mrs Reena Kapoor was a Director (together with her husband) of Sharn Entreprises that owned and operated as Little Ted's Childcare. She also held the legislative position of nominated supervisor in relation to the business. It is also relevant to note that Mrs Kapoor held the same legislative position in terms of Mine N Yours Childcare, Coopers Plains, which she owned and operated as a sole trader.
"[65] Based on the reasoning set out above, none of the applications are jurisdictionally barred; they have all met the requisite minimum employment period (for Ms Hamel this period is 6 months under s.383(a) of the Act). For Ms Hamel, the Respondent will not be treated to be a 'small business employer', but for Ms Mercer and Ms Bowyer, the Respondent will be considered as a 'small business employer', subject to the Small Business Fair Dismissal Code.
[66] Therefore, in relation to all 3 of these applications (Ms Hamel, Ms Mercer, and Ms Bowyer), none of the applications are jurisdictionally barred and all are able to proceed to arbitration."
[4] At the time of Ms Hamel's cessation of employment, which occurred first, prior to the end of the employment of these other two Applicants, it was determined that the Respondent was not a Small Business Employer in accordance with s.23 of the Act (with 'fewer than 15 employees at that time'). Accordingly, Ms Hamel's employment was subject to the 6-month minimum employment period (s.383 of the Act). Her employment met this test. However, after the dismissal of Ms Hamel, the Employer then had fewer than 15 employees, with the applicable associated minimum employment period for these employees being 12 months. The other Applicants' employment complied with this period, and all of the Applicants were deemed eligible to progress their individual unfair dismissal applications.
[5] The Respondent, in the case of Ms Hamel, submitted that the Applicant was not dismissed pursuant to s.386 of the Act. Directions for this jurisdictional issue and the matters relevant to the s.394 application were set. This decision considers the issue of whether the Applicant was dismissed first and then the substantive unfair dismissal application as these issues are interwoven.
[6] All of the Applicants were represented by Mr David Tuxworth, who indicated he had previously operated as a paid agent but that he was not appearing in that capacity. He stated that he was legally qualified and that he was currently employed as an employee relations adviser at a mining company but was acting for the Applicants on a pro bono basis. Mr Tuxworth had been a parent of children attending the Centre that Mrs Kapoor had bought and operated. There was some animosity between the Respondent and the Applicants' representative as a result of some prior interactions between them. Whilst acknowledging the jurisdiction of matters to be dealt with in an unfair dismissal application, Mr Tuxworth stated at the time of the Hearing (weeks after the finalisation of their employment contracts), a range of the Applicants' employment entitlements remained outstanding.
[7] The Respondent business was represented by Mrs Reena Kapoor, an owner of Little Ted's Childcare. In this matter it warrants noting that it was extremely difficult to obtain the relevant information from Mrs Kapoor for the consideration of the prior jurisdictional objection and in this substantial application. The Directions comprehensively set out the legislative provisions to be addressed. The Respondent, having had the experience of the jurisdictional Directions and the related Hearing, again failed to appropriately comply with the Directions of the Commission and failed to provide responsive material and a witness statement. The very limited material provided by the Respondent is set out below. Mrs Kapoor confirmed at the Hearing, that the material she had emailed to Chambers and the Applicant on 6 February 2025, was what she was relying on in these proceedings.
[8] Each of the three applications was heard separately. It was conceded that there was some overlap between the facts, circumstances, and material between the applications. Where this is taken into account, it is identified in the decision.
Relevant Legislative Provisions of the Fair Work Act 2009 (the Act)
[9] Section 385 of the Act defines an unfair dismissal as occurring if the Commission is satisfied a person has been dismissed and the dismissal was unfair; harsh, unjust or unreasonable.
[10] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(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
(b) one or more of the following apply:
(i) a modern award covers the person;
(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.
[11] In accordance with s.396 of the Act, it must be determined 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; and
(d) whether the dismissal was a case of genuine redundancy.
[12] The Applicant had met the minimum employment period, and her application was made within the 21-day legislative time frame. The matter was not a case of genuine redundancy. The Respondent, in relation to this application specifically, is not a Small Business Employer and therefore the Small Business Fair Dismissal Code is not applicable. It must be firstly assessed whether the Applicant was dismissed from her employment.
[13] Section 386 of the Act defines a dismissal as:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
[14] This decision will firstly determine whether a dismissal has occurred pursuant to s.386 of the Act. If a dismissal has not occurred and that jurisdictional objection is upheld, then the unfair dismissal application will not proceed. If a dismissal is found to have occurred, then the application will continue and the Applicant's matter will be assessed against the s.387 criteria.
[15] Section 387 of the Act provides that, in consideration of whether 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.
[17] Section 390 of the Act provides that the Commission may order a remedy if the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed and the Applicant has been unfairly dismissed.
[18] Furthermore, section 392 of the Act provides:
(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.
Summary of the Parties' Submissions and Evidence on the Further Jurisdictional Objection - Whether a Dismissal of Employment had Occurred Pursuant to Section 386
[19] Not long before the cessation of her employment, Ms Hamel had undergone back surgery. Ms Hamel stated that on 12 March 2025, she had advised Mrs Kapoor that she would need to take a period of leave, both personal and annual, in order to have urgent back surgery after a non-work related back injury. Her leave was approved and occurred from 25 March to 6 May 2025 (about a 6-week period). These circumstances of the Applicant using her accrued entitlements were approved by the Employer and the leave for this period, at the Applicant's initiative, was taken at half her wage rate, to allow for the longer period to recover from the surgery.
[20] The Applicant gave evidence that on 7 May 2025 she returned to work, on agreed reduced hours, whereby she worked 16 hours on a reduced hours return to work plan. On 9 May 2025, she tendered her resignation.
[21] As recorded in the original jurisdictional decision for Ms Hamel, the payroll records for employees for the week ending 11 May 2025 have been assessed in accordance with s.383(a)(i) or (ii). Ms Hamel provided a resignation letter on 9 May 2025 (to Ms Mellissa Bowyer, Centre Manager) with the required one week notice period (which she intended to work) as set out below. The Applicant, in this correspondence, was critical of the new management of the Centre and the childcare and work environment, since Mrs Kapoor had bought the Centre and taken over:
I am writing to formally resign from my position as Early Childhood Teacher at Little Ted's Oxley. As per my contract, I am providing one week's notice, with my final working day being Friday, the 16th of May, 2025. In accordance with Fair Work, please ensure all pay owing, including annual leave entitlements have been paid to me by the 23rd of May, 2025.
Since the change in ownership, I have found it increasingly difficult to feel valued in my role, particularly given the ongoing reminders that staff are easily replaceable. This has had a significant impact on my morale and overall experience.
I've noticed a distinct shift in the environment, among both families and staff, as we've adjusted to the changes in leadership. The qualities I once cherished about working at Little Ted's no longer feel present. The ongoing staffing shortages and limited time to develop quality programs for the children, which I consider fundamental to our work, have been especially challenging.
While I was initially supported during my medical leave, the process also involved considerable stress regarding leave entitlements and pay. Despite my efforts to resolve these issues, I often felt they were not taken seriously.
Since returning, I've encountered a workplace that feels disorganized and vastly different from the one I left. Though I hadn't originally intended to resign, the current atmosphere no longer aligns with my values or professional goals.
I want to express my sincere appreciation to Chantelle for her efforts in the Bottle Brush classroom during my absence. Her dedication to the children's learning has been evident and greatly valued.
I wish you and the entire team all the best moving forward. I am grateful for the experiences and connections I've made during my time at Little Ted's.
[23] The Applicant gave evidence that she intended to work the full notice period as she set out in her above resignation letter.
[24] Further to the receipt of that email, Mrs Kapoor sent a text message to Ms Hamel on 11 May 2025, making no reference to the letter of resignation, stating "I will let you know what shifts you will be doing from tomorrow-so wait for my response before entering to [address] (for now stay away from the centre from tomorrow -if so I will take it as trespassing)..." (emphasis added). The Applicant subject to this correspondence including a threat of trespass if she entered the Workplace and receiving no further correspondence (setting out the work shifts for her week of notice) from Mrs Kapoor submitted that 11 May 2025 was the date of notification to her of dismissal and her dismissal date.
[25] However, the Applicant sent the following text message on 12 May 2025 to Mrs Kapoor after not hearing from her about the roster, to enquire if she was required to work her notice period:
"Hi Reena, as I have not heard back from you, I am assuming I am not working out the remainder of my notice period this week. Just confirming I will be being paid for the 25 hours I am rostered to this week as per Fairwork and will also be paid out the remainder of my annual leave entitlements and the 16 hours I worked last week. In accordance with our previous correspondence all pay owing must be paid to me by the 23rd of March, one week after my final day of employment. Thanks."
[26] Mrs Kapoor then responded to the Applicant, on that day, with the following messages:
"As if paying you way more than what you should have as in leave hours was not enough -hence I will not pay you anything... And yes stay home as I don't want you any where near my centre... Trust I will get legal support to gain extra paid hours off you." (emphasis added)
[27] It is considered that that above text messages from the Employer sent on 12 May 2025, taken in connection with the prior exchanges, brought the employment relationship to an end by indicating that the Employer would not pay Ms Hamel anything further and indicating that Mrs Kapoor did not want Ms Hamel anywhere near the Centre. This is further discussed, in the consideration of the jurisdictional issue below.
[28] On 14 May 2025, in addition to the above, the Applicant messaged Mrs Kapoor, as follows:
"Just confirming you also owe me $995.32 in super annuation. Thanks."
"Super is always paid on time -check with ATO... I don't appreciate anyone spreading false information about me be the reason for you to leave your position. Once again, I think I have paid you even you didn't worked full year I have maintained your position, and have ensured that you work shorter days after returning so you can recover. This anger towards me for your leaving does not add up so I will let you go but where does your ethics and moral line is -questionable?!?"
[30] The Applicant stated that she submitted a timesheet for the 16 hours she had worked (between 7-9 May 2025), but that this was rejected by Mrs Kapoor, and as such she did not receive payment for this. The Applicant did not receive any payment for the week worked prior to submitting her resignation, the wages in lieu of notice for the week the Applicant had intended to work, or for any other accrued entitlements.
[31] It is noted that the Applicant tendered her resignation, to be effective on 16 May 2025 after working her notice period. The Respondent's response by text message on 11 May 2025 was non-committal on any further shifts the Applicant would be required to work. This was then coupled with a threat of trespass by the Respondent if the Applicant entered the Childcare Centre. This was followed up by Mrs Kapoor on 12 May 2025, stating that the Applicant would not be paid and that the Applicant should stay at home and not go anywhere near the Centre. The conduct by the Respondent's text messages on the 12 May 2025, in conjunction with the prior messages, was a dismissal of the Applicant by the Employer under s.386(1)(a) of the Act.
[32] As set out above, the Applicant's letter of resignation to Mrs Kapoor stated she would work out her notice period. By advising the Applicant that she would not pay any of her entitlements and to not enter the employee's working location, the Respondent clearly communicated a termination, that is to immediately end the Applicant's employment. Mrs Kapoor conceded that she refused to allow Ms Hamel entry, and this was evidenced in writing with her communications to Ms Hamel at the time.
"[17] In my view, the Applicant's version is preferred for the following reasons. First, the Applicant was unwilling to suffer any "penalty" by reason of a shortening of the period of notice. Mr Russell for the Respondent concedes as much in his statement that the Applicant expressed "concern about finishing up earlier was that he would be penalised for not serving his full notice period", and in Ms Lobb's statement that the Applicant was "worried if he left early, he would be penalised for not giving proper notice and would not be paid his annual leave entitlements that he was owed". Second, I accept the evidence of the Applicant that he had decided to resign at that time to "limit the time I would be without any pay" as he had "financial commitments to meet" and was concerned that if he did not work out the notice period, he would be "penalised". Third, Mr Russell concedes that he discussed the shorter notice period with the Applicant as "if he didn't wish to work the second week of the notice period, there was no necessity to do so because we were quiet at the time as he could see and that was the conversation".
[18] On the basis of the evidence before me, I am satisfied that the Applicant intended to work out the notice period as stated in his resignation and did not agree to reduce his notice period and not be paid for the week of notice. I find the Respondent took the unilateral action to shorten the notice period by one week. On that basis, I am satisfied that the actions of the Respondent support a conclusion that there was a termination on the Employer's initiative."
"However, since this decision nearly 30 years ago, there have been numerous decisions that have recognised that an employer's unilateral decision to bring forward an employee's nominated termination date is a termination of employment 'on the employer's initiative'. That approach is consistent with decisions of various courts. We consider that this is consistent with the plain language of s 386(1)(a) of the Act. A resignation on notice that ends on the employee's nominated termination date is a termination of employment on the employee's initiative. In that situation, the contract of employment and the employment relationship continues until the expiry of the period of notice in the absence of agreement that the termination date is to be brought forward. But if the employer then imposes an earlier termination date, the employment ends on its initiative. This is what has occurred in the case before us." (emphasis added)
"[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd[10] a Full Bench said:
'[13] It is plain that the Full Court in Mohazab[11] considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee.'"
"[10] In brief, Ms Nohra's letter of resignation shows on its face that she did not intend the employment relationship to end almost immediately but rather, for it to end prospectively on 3 December 2010. Target's action in purporting to accept the resignation but making it immediate was indisputably a termination at the initiative of the employer. Ms Nohra's resignation letter was highly conditional and may, or may not, have constituted a constructive dismissal. That issue does not matter at this time as Target intervened to actively terminate the employment relationship immediately. Even if Ms Nohra was voluntarily standing on a metaphorical high ledge announcing that she would jump from employment in about seven months' time, it was Target that then pushed her." (emphasis added)
[37] Having noted and considered the above case law regarding s.386(1) of the Act, in relation to what forms a dismissal, it is concluded that the Applicant's employment was terminated on 12 May 2025 at the Respondent's initiative pursuant to s.386(1)(a) of the Act. The Employer in finalising the Applicant's employment by the text messages of 12 May 2025, communicated the termination of the Applicant's employment at an earlier date than to what the Applicant intended in working out her one week notice period. The jurisdictional objection is therefore dismissed. That is, a finding that the Applicant was dismissed from her employment is made. Having now dealt with the jurisdictional objection, the merits of the unfair dismissal application are now examined.
Parties' Submissions and Evidence on the Merits
[38] The Applicant submitted that there was no valid reason for termination. The Applicant further submitted that she was not notified of any reason for dismissal, and accordingly nor given an opportunity to respond. Finally, the Applicant's representative submitted that there was no opportunity for the Applicant to have a support person and that there were no prior warnings for any performance issues.
[39] The Respondent as set out above, only made passing reference to an allegation against the Applicant which she raised at a much later stage as the basis for not allowing the Applicant to work out her notice period. That is, the Employer stated in matters relevant to the Hearing, that she alleged she could not condone the Applicant working out her notice period in circumstances where she had witnessed the Applicant criticise her, as the Employer, to parents of the Childcare Centre. No specific evidence was provided by the Respondent as to exactly when, or where she witnessed this occur.
[40] The Respondent had been provided with a series of extensions to file her material in this matter. The Respondent's only response in terms of the material filed for arbitration was emailed to Chambers on 6 February 2026, with the following statement provided in the body of the email:
"Sorry due to unforeseen circumstances I am unable to access my laptop neither the saved documents hence writing statement via this email for case U2025/8952.
Below are few clarification I would like to gain from the applicant Anika Hamel -
• I need a record of every date she took sick leave, annual leave, unpaid leave, or carers leave from when she was hired in June 2024 until her resignation.
• I would like Anika to acknowledge the reason I refused her entry to centre. Acknowledge that she was caught red-handed in the afternoon of her return from medical leave speaking to parents bad mouthing our Centre and encouraging those 2 parents to bring their children to her new Centre. Upon confronting straddled Anika about it on the spot, I stated and made it clear to her that she is breaching her contract terms and will not be allowed in the premises anymore.
• Mellissa Bowyer as the centre manager was updated about this incident accordingly.
Hope to receive response from the mentioned applicant in timely manner for the final hearing!"
[41] Given that Mrs Kapoor was provided with a series of opportunities to detail her case, she only made passing reference to this allegation in terms of the only material that she provided being the email of 6 February 2026.
[42] The Applicant submitted that the Respondent's allegations as above, were completely baseless and on the evidence before the Commission in this case, this was found to be correct.
[44] The only response Mrs Kapoor put before the Commission regarding the reason for dismissal was unsigned with material in the body of an email. In circumstances where the Respondent had been provided with guidance in the form of the Directions and other emailed procedural steps to assist in providing a witness statement with details of any allegations made by the Employer relevant to the termination of employment, Mrs Kapoor did not set out in a clear timely manner the allegation that the Applicant had criticised her and the Centre to parents of the children. Accordingly in circumstances where this was not raised with the Applicant as the Employer's alleged reason for termination and the Applicant was denied the opportunity to respond to such, this final allegation should be weighted accordingly. Mrs Kapoor stated:
"[Ms Hamel] was caught red-handed in the afternoon of her return from medical leave speaking to parents bad mouthing our Centre and encouraging those 2 parents to bring their children to her new Centre. Upon confronting straddled Anika about it on the spot, I stated and made it clear to her that she is breaching her contract terms and will not be allowed in the premises anymore."
[45] It is recognised that the Applicant made critical comments in her letter of resignation about the change in the Workplace that she had experienced since her return. However, the evidence was that the Applicant had provided the letter of resignation to Ms Bowyer and separately to Mrs Kapoor. There was no evidence that she had made these remarks to any broader audience or that she intended to. Apart from explaining the reason for her resignation, there was no evidence that she had acted improperly in her work in the week before tendering her resignation that gave rise to any concerns by the Employer. If there was a concern for the Employer, she was at liberty to pay the Applicant the week in lieu of notice and not have her working in the Centre. There was evidence that the Employer had casual employees on call that assisted to cover staff absences at the Centre. Alternatively, the Employer could have had a discussion with the Applicant about the importance in a Childcare Centre environment of maintaining due diligence with the children and appropriately maintaining her responsibilities to the Employer and discharging her duties until the finalisation of her contract after that week. Mrs Kapoor did not engage in any discussion with the Applicant, but she did raise late in the proceedings, an allegation that the Applicant had been witnessed by the Employer criticising the Centre and the Employer to a group of parents of children at the Centre.
[46] It is acknowledged that Mrs Kapoor considered she could not ask the parents, whom she alleged had heard Ms Hamel 'bad mouthing' the Centre, to be witnesses in this matter. However, I had repeatedly informed Mrs Kapoor that she herself could put evidence into a witness statement, however as stated above, she failed to do so. There were no details provided to the Commission in relation to the allegations as made, including no specific details as to what the Applicant allegedly said, on exactly what date and time, and to whom. Any of these details may have legitimised the allegations, however the Respondent failed to do so. There was merely a broad reference to 'bad mouthing' the Centre.
[48] The Applicant submitted in her reply material to the Directions that the allegations as made by Mrs Kapoor were 'completely baseless' and that no evidence had been provided to support the allegations as made.
[49] It was recognised that the Respondent was self-represented. However, as referred to, she had previously been subject to Directions for the provision of material and had participated in the jurisdictional Hearing before the Commission and therefore had some familiarity as to responding to Directions and participating in the Hearing. Previous to this, she had been in receipt of the Directions, and the Applicant's responses, therefore, she had an understanding of how these proceedings would be discharged. Some latitude was provided to her at the Hearing. The Respondent however had been on notice that she could not present her case in terms of new evidence at the Hearing. The Respondent put no material before the Commission supporting the allegations that she had made about the Applicant's criticism of her and the Centre to a group of parents. Mrs Kapoor had not referred to this at any time prior to the end of the employment. There was no reference to any evidence or discussion with the Applicant regarding these alleged reasons for the termination that related to a valid reason for termination of the Applicant's employment. This does not condone such comments if they occurred or provide an indication that an Employer has to accept criticism of the business. However, there was no evidence given to the Commission in relation to this. The Applicant's letter of resignation indicated that she was not comfortable with continuing her employment given the new ownership, however this was provided directly to only Ms Bowyer and Mrs Kapoor. There is no evidence that can be given any weight before the Commission in relation to any alleged criticisms made by the Applicant to parents. The text messages of Mrs Kapoor, sent after the alleged comments made by the Applicant, in no way reference these remarks. In other words, the Respondent, if this was the reason for dismissal, in dismissing the Applicant did not refer to this reason whatsoever in the written communications.
[50] Accordingly, there was no valid reason based on the evidence and submissions before the Commission to terminate the Applicant's employment. The finding on this criteria is in favour of the Applicant.
Section 387(b) - Whether the Applicant was notified of that reason
Section 387(c) - Whether the person was given an opportunity to respond to any reason for dismissal
"[188] Section 387(c) focuses on provision of an opportunity to respond to a reason for dismissal prior to the dismissal. The valid reason for dismissal upheld by the Deputy President was not notified to Mr Newton before dismissal and he was not afforded an opportunity to respond to the assertion that he had been dishonest, misleading and had engaged in sinister conduct.
[189] The Deputy President took into account an irrelevant consideration in concluding that any unfairness was ameliorated in the Commission proceedings. Any opportunity to respond to a reason for dismissal must be afforded prior to the dismissal occurring. It was not reasonably open to the Deputy President to conclude that the failure to provide Mr Newton an opportunity to respond to the valid reason as found by the Commission was a neutral consideration. Plainly it was a matter which sounded in favour of a finding that the dismissal was harsh, unjust or unreasonable. The weight accorded to a failure to comply with s 387(c) may hinge on whether an employee was deprived of the possibility of a different outcome." (emphasis added)
[54] In line with this case law, given that no specific notification of a reason for termination was provided to the Applicant, prior to the termination there could not have been an opportunity provided to the Applicant to respond. This is similarly considered as a factor that weighs in support of the Applicant.
Section 387(d) - Unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[56] There was no evidence before the Commission regarding this factor. Mrs Kapoor did not undertake any discussion regarding the reason for termination and inherent to that, Mrs Kapoor therefore did not allow Ms Hamel to have a support person present at any discussion as no notification of the reason for termination or a discussion in that regard occurred. This is considered as a factor that is in favour of the Applicant given the lack of a procedure in relation to the termination of employment.
Section 387(e) - If the dismissal related to unsatisfactory performance by the Applicant--whether the Applicant had been warned about that unsatisfactory performance before the dismissal
[58] The Respondent characterised the reason for dismissal as 'bad mouthing' the Centre she had taken over. Certainly, the Applicant's letter of resignation was transparent; that one of her motivations for leaving was what she considered the changed circumstances she experienced at the Centre after it was operated by Mrs Kapoor. There was no information provided by the Respondent, however in relation to her observing the Applicant allegedly criticising the Respondent to the parents; on the evidence, the Applicant was given no opportunity prior to the termination to be notified of this or an opportunity to respond to the allegation.
[59] The Employer, had also raised in passing in her text messages that she was somewhat aggrieved that the Applicant had been approved to use her accrued annual leave and personal leave to have back surgery and a period of recovery. However there was no evidence that the Applicant did not genuinely have this accrued leave to take for the approved reason of the surgery and recovery.
[60] Therefore, with regard to this legislative criteria, where the termination was not related to the Applicant's performance (nor was there any conduct reasons made out), this provision has no relevance to this matter and is considered as a neutral factor.
Section 387(f) and (g) - the degree to which the size of the employer's enterprise and 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.
[63] The Respondent also acknowledged that the Applicant had not been paid for work undertaken (being the 16 hours worked on 7 to 9 May 2025) in the week prior to tendering her resignation and had not been paid her accrued entitlements. In addition, she was not paid for the week of notice that she intended to work out. While applications pertaining to the payment of unpaid entitlements are considered under a separate jurisdiction, this has been taken into account as a relevant matter as to the harshness of the termination of employment as a result of the Employer's failure to pay these obligations for a significant period of time.
[64] As set out above, the Respondent did not have a valid reason for dismissing the Applicant. In addition, based on the reasons set out above, there is an unfairness in the Applicant's dismissal based on the fact that no proper process was followed in relation to the dismissal. The Applicant's dismissal was harsh as she was not paid for her hours worked before the dismissal and was not paid her entitlements. Further, the Applicant's dismissal was unjust given that she was summarily dismissed via text message by the Owner of the Employer's business without any reference to the reasons for the dismissal. It was unreasonable also, as no proper process was followed by the Respondent in relation to the unsubstantiated allegations against the Applicant that were much later provided as a suggested reason for dismissal in these proceedings. The Applicant's dismissal, for all of the above reasons, was harsh, unjust, and unreasonable, and the Applicant is entitled to an unfair dismissal remedy.
[65] Having found that the Applicant was protected from unfair dismissal, and that her dismissal was not for a valid reason, was procedurally unfair, and was harsh, unjust and unreasonable it is necessary to consider what remedy should be granted to her.
[66] Section 390(3) of the Act provides that the Commission must not order the payment of compensation unless it is satisfied both that reinstatement of the person is not appropriate, and that it considers an order for the payment of compensation to be appropriate in all the circumstances of the case.
[68] Given the allegations raised during these proceedings and the lack of fair process, it is clear that the relationship between the parties is incapable of reforming a productive working relationship with trust and confidence. This is particularly so, in the circumstances of the Respondent telling the Applicant not to attend the Centre, which she would consider trespass. The Applicant did not seek reinstatement in her submissions, and it is noted that the Applicant had provided the Respondent with her notice of resignation. Accordingly, reinstatement is not an appropriate remedy.
Section 392(2)(a) - the effect of the order on the viability of the employer's enterprise
[70] The originally set Directions sought submissions from the parties that included an extract of s.392 of the Act. The parties provided no submissions with respect to this consideration.
[71] It is noted, particularly in the previous jurisdictional decision, that the Respondent, upon the departure of Ms Mercer and Ms Bowyer, was a Small Business Employer within the meaning under the Act. Given the Respondent's size, this factor weights in favour of exercising caution as to the amount of compensation.
Section 392(2)(b) - the length of the person's service with the employer
[72] As determined in the previous jurisdictional decision, the Applicant had been employed by the Respondent for approximately 11 months. This is not an insignificant period of employment, but it is less than a period of one year's employment. Therefore, this is considered to be a neutral consideration.
Section 392(2)(c) - the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed
[73] The Applicant put evidence before the Commission of her notice of resignation to be effective 16 May 2025. Accordingly, it is clear that in any event where the Respondent did not dismiss the Applicant, the Applicant would have only remained employed for one further week. This considerably reduces the range of compensation to be awarded.
Section 392(2)(d) - the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; Section 392(2)(e) the amount of any renumeration earned by the person from employment of other work during the period between the dismissal and the making of the order for compensation; and Section 392(2)(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
[74] Despite being directed to do so, neither party addressed these considerations in their submissions. Consideration of these provisions has been adopted as neutral.
Section 392(2)(g) - any other matter that the FWC considers relevant
[75] In seeking a remedy of compensation, the Applicant gave evidence that she had worked 16 hours the week before her dismissal, (these hours were worked on a reduced duties basis given that she was still subject to limited duties, as a result of her back surgery and recovery). The evidence was that she had not been paid for these hours that she had worked. She also set out that she was going to work 25 hours during the week of her notice period (as she was still on lighter duties after returning to work from her surgery, but she gave evidence that she intended to in addition use the remainder of her leave entitlements during this week to make up the usual hours of work). Her normal working hours per week before the surgery was 37.5 hours. The Applicant gave evidence that the Employer, after her dismissal, had not paid her for her 16 hours worked the week prior. The Applicant also gave evidence that the Employer did not pay her residual accrued leave, as per the Act. The Applicant's final payslip for the period of 5 May 2025 to 11 May 2025 (which gives a total earning of $0) shows a balance of 6.0292 hours for annual leave and 1.4546 hours for personal leave.
[76] At the Hearing, Mrs Kapoor had conceded that Ms Hamel had not been paid the 16 hours that she had worked. Further, she stated that she would pay her the 16 hours worked, and any accumulated annual and sick leave given she stated it is her right to get paid these entitlements. Mrs Kapoor stated that she had not paid this as a result of this application.
"[150] At the point he was dismissed, Mr Burke head been employed for a total period of almost seven years, although there had been a break in service. His most recent period of service was approximately three years and four months. Mr Burke was told that he would be paid two weeks wages in lieu of notice on termination of his employment in August 2014. That amount was not paid until November 2014. At that time, Mr Burke was paid the two weeks in lieu of notice set out in his termination letter and a further amount of one week and two days wages when Ms Rowan realised that not only had Mr Burke not been paid notice at the time of his dismissal, but the period had also been miscalculated.
[151] While I accept that this oversight was not intentional I do not doubt that it would have caused Mr Burke significant difficulty given that he was unemployed even at the point this application was heard. Dismissed employees should not have to wait for considerable periods to receive their minimum statutory entitlement to payment in lieu of notice and the impact of the failure of Suncorp to pay this amount in a timely fashion is a matter that I have taken into account in calculating compensation. This is particularly so given that the notice payment was not made until the period over which I have assessed compensation had elapsed.
[152] Had Mr Burke remained in employment for the 8 week period he would have earned the gross amount of $8,400. Given my findings about the failure of Suncorp to properly consider whether health issues had impacted on Mr Burke's conduct and work performance, and that Mr Burke was dismissed for poor work performance rather than misconduct, I do not consider it appropriate to make a deduction in this regard. Given the late payment of Mr Burke's statutory entitlement to payment in lieu of notice and that the payment was made outside the time period for which I have determined that Mr Burke would likely have remained in employment, I make no deduction for the period of notice. In my view, the requirement to take such amounts into account does not necessitate that they are deducted from an award of compensation" (emphasis added)
[78] Accordingly, the absence of the Employer making these payments is taken into account in judging the appropriate amount as arrived at after the Sprigg calculation is made. This is further referred to below.
[79] For the reasons set out above, no allegations of misconduct were raised with the Applicant or substantiated. Therefore, this factor is considered neutral.
[80] The Applicant sought for the award of compensation; $1,800 (gross) plus superannuation. The Applicant sought this figure based on her rate of $48.00 per hour and her contention that she regularly worked 37.5 hours. As noted above, the Respondent did not put any evidence, nor submissions before the Commission on the issue of remedy.
[81] The assessment of compensation in summary terms involves a four-step process. However, this is not a substitute for the words in the Act:
"Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost). I am also required to consider the length of service with the employer[31] and the ability to find a new role as a relevant factor in calculating compensation per s392(2).
Step 2: Deduct monies earned since termination.[32]
Step 3: Discount the remaining amount for contingencies.[33]
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount they would have received if they had continued in their employment."
[83] It is noted that in accordance with s.392(4) of the Act, that the amount of compensation cannot include a component for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal.
"[17] The identification of this starting point amount "necessarily involves assessments as to future events that will often be problematic". Once this first step has been undertaken, various adjustments are made in accordance with s 392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee's misconduct and the application of the cap of six months' pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case." (citations omitted)
"Comment in Relation to the Guidelines in Sprigg
[32] It seems to us that the amounts arrived at by the application of the guidelines in Sprigg in the present matter are on their face manifestly inadequate for employees with the length of service of the Appellants, the circumstances of their dismissal and their poor prospects for future employment. This causes us to sound a warning in relation to the application of Sprigg. The guidelines laid down in Sprigg and refined in Ellawala v Australian Postal Commission are clearly designed to serve the proper and desirable purpose of fostering uniformity and consistency in decision-making by individual members of the Commission when assessing compensation pursuant to s 170CH(6). However, those guidelines are not a substitute for the words of the Act. By virtue of s 170CH(2), any remedy ordered by the Commission must be a remedy that the Commission considers "appropriate" having regard to all the circumstances of the case including the matters set out in s 170CH(2). Section 170CH(6) confers a general discretion "if the Commission considers it appropriate in all the circumstances of the case" to "make an order requiring the employer to pay the employee an amount ordered by Commission in lieu of reinstatement" subject to the Commission having regard "to all the circumstances of the case including" the matters listed in s 170CH(7) - the same list of matters set out in s 170CH(2) - and subject also to the "cap" provided for in s 170CH(8) and (9). If an application of the guidelines in Sprigg yields an amount which appears either clearly excessive or clearly inadequate, then the member should reassess any assumptions or intermediate conclusions made or reached in applying the guidelines so as to ensure that the level of compensation is in an amount that the member considers appropriate having regard "to all the circumstances of the case" including the matters listed in s 170CH(7) and subject to the "cap" provided for in s 170CH(8) and (9). In this context it should be borne in mind that the result yielded by an application of the Sprigg guidelines may vary greatly depending upon particular findings in relation to the various steps including, in particular, step one, which necessarily involves assessments as to future events that will often be problematic." (citations omitted)
"[43] It is noted that the language found at s 170CH(2) of the Workplace Relations Act 1996 "having regard to all of the circumstances of the case..", as it was at the time of the decision in Smith v Moore Paragon Australia Ltd is similar to the language currently found at s 392(2) of the Act, "take into account all of the circumstances of the case ... ". The decision in Smith v Moore Paragon Australia Ltd is authority for the proposition that the Commission retains a general discretion taking into account all of the circumstances of the case to make an order for compensation in lieu of reinstatement.
[44] The particular circumstances of this case justify a departure from the Sprigg formula on the basis that Sprigg yields an amount which appears clearly inadequate. Had Mr Jones not taken either of the two steps referred to above, and instead put the Applicants name forward in the same manner as the other employees I am satisfied the Applicant would have transferred just as all the other employees who wished to did."
[87] Consistent to Ciuzelis, I consider that the circumstances of this application justify a departure from the Sprigg formula given that the amount produced by Sprigg is inadequate to compensate for the circumstances of this matter for the reasons set out above. The Respondent dismissed the Applicant without a valid reason and any proper procedure, and has since the time of dismissal, admitted to failing to pay owed wages and entitlements. These are matters that I have taken into consideration pursuant to s.392(2)(g) of the Act in considering that in my "overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case" (per Humphries), that the Sprigg formula result of compensation of $1,800 is inadequate to compensate for the circumstances of this matter for the reasons set out above. Accordingly, a further week of compensation has been added to take into account the lack of merits or procedure related to the dismissal and the non-payment of employment entitlements for the significant period.
[88] Taking into account all of the circumstances, and the omission of any procedurally fair steps being provided to the Applicant, in fairness, in accordance with the decisions as quoted, the amount of compensation awarded for the reasons as set out is $3,600 plus superannuation. A separate Order (PR797807) is made for the payment of this amount within 14 days of the date of this decision.
[1] Australian Children's Education & Care Quality Authority, National Quality Framework | Information Sheet: Nominated Supervisors .
[5] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [69].
[8] [2025] FWCFB 205 at [11].
[10] Print S5904, 12 May 2000 per Polites SDP, Watson SDP and Gay C.
[11] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200.
[13] Selvachandran v Peterson Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 at 373.
[16] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [55].
[17] Chubb Security Australia Pty Ltd v Thomas, Print S2679 at [41].
[19] Fair Work Act 2009 (Cth) s.387(d).
[20] Fair Work Act 2009 (Cth) s.387(e).
[21] Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.
[22] Fair Work Act 2009 (Cth) s.387(f).
[23] Fair Work Act 2009 (Cth) s.387(g).
[24] Sykes v Heatly Pty Ltd t/a Heatly Sports, PR914149 at [20].
[25] Williams v The Chuang Family Trust t/a Top Hair Design [2012] FWA 9517 at [40].
[26] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 at [17].
[28] Sprigg v Paul's Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.
[29] Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey [2013] FWCFB 431; Jetstar Airways Pty Ltd v Neeteson-Lemkes [2014] FWCFB 8683.
[31] Fair Work Act 2009 (Cth) ss.392(2)(b)-(c) and (g).
[33] Fair Work Act 2009 (Cth) ss.392(2)(a), (d) and (f).
Printed by authority of the Commonwealth Government Printer
Ms Anika Hamel
Sharn Enterprise Pty Ltd ATF Kapoor Family Trust
(2000) 98 IR 233
(1995) 62 IR 200
(1995) 62 IR 371