"While I did reject being subjected to an unfair disciplinary process, it was because the process itself lacked impartiality, professionalism, and respect. I felt gaslighted and bullied throughout, with no genuine consideration for my wellbeing or contribution to the business".

Fair Work Commission|2025-10-31

The Applicant submitted that she did not sign or acknowledge any agreement to the PIP or the allegations outlined, as she believed they were unfair and unsubstantiated. Further, the Applicant submitted that:

"While I did reject being subjected to an unfair disciplinary process, it was because the process itself lacked impartiality, professionalism, and respect. I felt gaslighted and bullied throughout, with no genuine consideration for my wellbeing or contribution to the business".

The Applicant submitted that during the disciplinary meeting of 13 December, the only issue referenced in the formal letter was 'time theft' and 'lateness', which the Applicant submitted she acknowledged as a lapse in judgement. The Applicant submitted that the remaining allegations presented to her were, in her view, "fabricated by Jennifer Grabowski in an effort to push [her] out of [her] role".

Allegation 4 - In response to the 'alleged' complaints made by the Applicant against Ms Grabowski, the Applicant submitted that she had exhausted all attempts to raise her concerns with HR and Ms Grabowski's senior management. However, the Applicant submitted that her complaints were complete disregarded. The Applicant submitted that, in relation to the PIP presented to her by Ms Grabowski on 11 March 2025 - "nearly three and a half months after the disciplinary meeting of 13 December 2024" - the plan was meant to include training to the Applicant. However, the Applicant submitted that only approximately 2.5 hours of 'brief sessions' were conducted, which fell significantly short of the nearly 27 hours of training support outlined in the plan. The Applicant submitted that Ms Grabowski appeared more focussed on monitoring her and documenting mistakes, than coaching or mentoring her.

Allegation 5 - In response to the Respondent's allegation that it was "very difficult to terminate [the Applicant]", the Applicant disagreed, submitting that her dismissal was "abrupt, dehumanising, and handled without care by the management team".

The Applicant submitted that she attended a meeting with Ms Gomez Tur and Ms Grabowski on 8 April 2025, after having suffered from sleepless nights and extreme anxiety in the lead-up. The Applicant had a support person present with her. The Applicant submitted that Ms Gomez Tur greeted her "sarcastically". The Applicant submitted that Ms Gomez Tur showed no acknowledgement of her wellbeing, and at no point did Ms Gomez Tur offer to pause or postpone the meeting to prioritise the Applicant's mental health.

The Applicant submitted that the meeting felt like "yet another one-sided exercise in humiliation". She said that she declared to the Respondent that:

"This meeting is over for me. I'm not staying here to be gaslighted and bullied. I've done everything to support this business".

The Applicant submitted that Ms Gomez Tur asked: "Are you refusing to participate in the PIP?", to which the Applicant replied: "There's no point. I've raised all my concerns since the disciplinary meeting, yet nothing has changed. I'm willing to be coached and supported, but not subjected to psychological harm disguised as 'improvement plans'". The Applicant submitted that she left the meeting with her support person.

Allegation 6 - The Applicant believed that she was terminated because she "refused to 'play the game' of being passive, silent, and compliant".

Allegation 7 - In response to the allegations outlined in the termination letter, the Applicant submitted that there are several inconsistencies between what was claimed and what actually occurred. The Applicant noted that English is her second language and suggested that it was possible her words were misunderstood or misinterpreted.

[60] The Applicant submitted that she "gave everything to that store", and in return she was disrespected and terminated. The Applicant submitted that the disciplinary process carried out against her did not align with the Respondent's own policies and failed to allow a fair opportunity for improvement. The Applicant submitted that the Respondent's HR personnel and higher management failed to act with impartiality, transparency or integrity.

[61] The Applicant submitted that her dismissal on 15 April 2025 was actioned immediately, without allowing a further review. The Applicant submitted that the reasons given for her dismissal were not sufficiently serious or aggravating enough to justify immediate dismissal, particularly in light of her two years of dedicated service to the business.

[62] For all of the above reasons, the Applicant submitted that her dismissal was unfair, harsh, unjust and unreasonable.

[63] The Applicant submitted that, at the time of filing her submissions, she had been unemployed for nearly three months. The Applicant submitted that the dismissal has caused her severe mental distress, including heightened anxiety and physical health issues.

[64] The Applicant has sought compensation as the remedy for her dismissal.

[65] The Respondent submitted that the Applicant was employed as the Store Manager of its Bondi Junction Store (Bondi Store) between 12 July 2023 and 15 April 2025. The Respondent submitted that the Applicant was dismissed because:

her aggressive behaviour in a management meeting of 8 April 2025 was not in line with the values and expectations of the Respondent;

she had previously received a First and Final Warning arising out of similar conduct which put her on notice that future breaches of company policy may result in termination of her employment; and

she refused to participate or continue in a performance management process which the Respondent had lawfully and reasonably directed her to undertake.

[66] The Respondent submitted that the Applicant was given ample opportunity to respond to the allegations against her both in relation to the earlier warning process and the termination process. Further, the Respondent submitted that the Applicant was consulted in relation to the performance management process, and she had a support person present at key meetings. The Respondent submitted that in all the circumstances, the dismissal was not harsh, unjust or unreasonable, and the Application should be dismissed.

[67] The Respondent submitted that much of the material included in the Applicant's Witness Statement is irrelevant to the case for unfair dismissal.

[68] The Respondent relied on the following facts:

"a. In around October 2024 and November 2024, the Respondent received complaints from current and former staff members of the Bondi Store about the Applicant;

b. Between October 2024 and November 2024, the Respondent conducted an internal investigation into the allegations;

c. As a result of the investigation, on 11 December 2024, the Respondent issued a letter to the Applicant which detailed the allegations against her and invited her to a meeting to discuss those allegations (Allegations Letter).

d. The Applicant attended the meeting and made admissions as to the following allegations against her:

The Applicant had started 73.12% of her shifts late;

On 27 September 2024, the Applicant had asked a colleague to clock in for her even though she was not physically in the Bondi Store;

On 6 December 2024, the Applicant failed to communicate changes to the roster which resulted in the Bondi Store opening at 10.30am instead of the scheduled opening time of 9.30am;

Team members reported minimal engagement from the Applicant with WhatsApp messages perceived as overly direct.

Team members reported feeling pressured by the Applicant to increase service speed, which led to concerns about stress and a negative work environment;

The Applicant removed a current employee, Charmaine Chaparadza from the Respondent's working WhatsApp group without following the proper procedure set out in the Respondent's 'Termination and Job Change Workflow Process'.

e. As a result, the Respondent found the above allegations were substantiated and on 13 December 2024, issued a first and final warning to the Applicant (Warning Letter) which put her on notice that future breaches of company policy may result in termination of her employment.

f. The Warning Letter also notified the Applicant that the Respondent intended to implement a Performance Improvement Plan (PIP) to address ongoing concerns about her communication style, adherence to procedures and punctuality and to provide support to the Applicant to perform her job.

g. In particular, a required outcome of the PIP was that the Applicant was to be "Driving Swarovski Culture with team. Creating a safe and nurturing environment through open communication, inclusivity, coaching and developing team and leading by example"; and the stated objective therein was that the Applicant was to be "communicating with team in a respectful way verbally and through team WhatsApp group".

h. Between 4 March 2025 and 11 March 2025, the Applicant was given the opportunity to participate in a collaborative PIP process. On 11 March 2025, the final PIP was presented to the Applicant in person during a meeting and she acknowledged receipt of it.

i. Thereafter, on 13 March 2025, the finalised PIP was emailed to the Applicant for her signature however the Applicant refused to sign the document though she expressed agreement to the training process.

j. As part of the PIP process, Ms Grabowski visited the Bondi Store on 18 March 2025, 26 March 2025 and 2 April 2025 to provide feedback and support to the Applicant.

k. On 8 April 2025, as scheduled, the Applicant was required to attend the Respondent's Head Office for an interim review of the PIP with Ms Grabowski and Ms Gomez. In the meeting, the Applicant:

Refused to share the PIP progress checklist which set out what training had been completed by the Applicant and Ms Grabowski during the in-store visits on 18 March 2025, 26 March 2025 and 2 April 2025 as well as a self-assessment;

Refused to participate meaningfully in the meeting;

Raised her voice at Ms Grabowski and said "look at me when I am talking to you" and "I need to be rude with you";

Behaved aggressively and disrespectfully to Ms Grabowski and Ms Grabowski;

Said, "This conversation ends here. I will not be a part of this anymore", referring to both the meeting and the PIP process;

Said that she would not attend any further meetings;

Unilaterally terminated the meeting by walking out of the meeting room.

l. On 8 April 2025 and following the meeting described above in subparagraph (j), the Respondent suspended the Applicant's employment on full pay because of her behaviour in the meeting earlier in the day;

m. On 9 April 2025, the Respondent issued a letter to the Applicant inviting her to attend a disciplinary meeting to provide a response to the allegations against her arising out of her conduct at the meeting on 8 April 2025 (Second Allegations Letter).

n. On 15 April 2025, the Respondent met with the Applicant and sought her responses to the Second Allegations Letter. In that meeting, the Applicant admitted that in the meeting of 8 April 2025, she:

said she would not attend the Head Office again;

said that she would not participate in the PIP process;

refused to continue the meeting with Ms Grabowski;

said the words, "this conversation ends here, I will not be a part of this anymore".

o. On 15 April 2025, the Respondent terminated the Applicant's employment."

[69] The Respondent submitted that in light of the above factual background, the letter of termination identified the following reasons for the Applicant's dismissal:

"Your conduct during the 8 April meeting was not aligned with the standards of respectful and professional behaviour expected a Swarovski. Despite ongoing support and clear communication regarding expectations, your conduct demonstrated a refusal to engage in the performance management process in a constructive or professional manner.

It is also important to note that this behaviour is not isolated. You were previously issued a first and final warning on 13 December 2024 following serious concerns raised by former employees, including Hegbert Mesa Leon and Charmaine Chaparadza, and concerns received from team members at the Bondi store, raising additional concerns about your communication style and conduct.

Taking into account the repeated nature of these concerns, the seriousness of the behaviors outlined above, and your ongoing unwillingness to engage in a constructive way, Swarovski has made the decision to terminate your employment, effective immediately."

Criteria for Harshness, section 387 of the FW Act

[70] The Respondent submitted that the reasons for the Applicant's dismissal were sound, defensible and well-founded.[3]

[71] As to the first reason for the Applicant's dismissal, the Respondent submitted that the Applicant had already received a First and Final Warning and had had allegations substantiated against her regarding her communication style and other forms of misconduct - including time theft. The Respondent submitted that the Applicant had been warned that further failures could result in dismissal. Further, the Respondent submitted that the Applicant had been placed on a

Performance Improvement Process that specifically outlined a required outcome as "Driving Swarovski Culture ... creating a safe and nurturing environment through open communication, inclusivity, coaching and developing team and leading by example". The Respondent submitted that the Applicant was on notice that the Respondent regarded her manner of communication to be "problematic".

[72] As to the second reason for the Applicant's dismissal, the Respondent submitted that in the meeting of 8 April 2025:

"the Applicant made clear that she had no intention of obeying the lawful and reasonable directions of her employer; that she would not attend meetings with Ms Grabowski at the Head Office in the future regardless of any direction given; that she would not provide the PIP checklist or participate in the discussion about her progress pursuant to the PIP as required; and that she would not even stay in the meeting which had been convened."

[73] The Respondent submitted that the Applicant's rejection of the Respondent's lawful and reasonable directions at the meeting and indication that she would continue to reject those directions into the future supported a reasonable belief that she no longer wished to be bound by the employment contract.

[74] As to the third reason for the Applicant's dismissal, the Respondent submitted that the Applicant's behaviour in the meeting of 8 April 2025 involved, by her own admission, inappropriate, aggressive and disrespectful communication to a senior employee and Area Manager, Ms Grabowski. The Respondent submitted that this behaviour was not aligned with the standards of behaviour expected by the employer. The Respondent submitted that this behaviour negatively impacted the wellbeing and workplace environment of Ms Grabowski and Ms Gomez Tur.

[75] The Respondent submitted that in light of the above matters, it had a valid reason to dismiss the Applicant.

Sections 387(b)-(d) - Notification of the reason; Opportunity to respond; and Support person

[76] The Respondent submitted that the evidence shows that the Applicant was amply notified of the allegations against her as set out in the Allegations Letter and the Second Allegations letter. The Respondent submitted that the Applicant was provided with opportunities to respond to the allegations both in writing and in meetings - and the Applicant availed herself of these opportunities.

[77] The Respondent submitted that each of these steps allowed her to present explanations for her conduct prior to any final disciplinary action being taken.

[78] The Respondent submitted that the Applicant was afforded a support person in every key meeting referred to above, though she chose not to have a support person present at the meeting of 12 December 2024.

[79] The Respondent submitted that the Applicant received a warning about her unsatisfactory performance on 12 December 2024.

Sections 387(f) and (g) - Size of the Respondent's enterprise and dedicated human resources expertise

[80] The Respondent submitted that these matters are not applicable to this Application.

"Insofar as [the] Applicant's statement is pre-occupied with her various far-fetched and inflammatory allegations against Ms Grabowski..., the documentary evidence militates against these claims".

[82] The Respondent submitted that on the evidence before the Commission, the Applicant habitually made complaints against Ms Grabowski in response to reasonable management action taken against her and attempts to hold her accountable to her duties.

[83] Further, the Respondent submitted that on the evidence before the Commission, between 13 December 2024 and 9 April 2025, the Respondent's HR department engaged fulsomely with the Applicant's allegations about Ms Grabowski. The Respondent submitted that, despite multiple requests, the Applicant did not provide details about her allegations until 2 April 2025 thereby impeding any action the Respondent could take to investigate the matter. The Respondent submitted that the allegations were ultimately unsubstantiated.

[84] The Respondent noted that neither Ms Grabowski nor Ms Gomez Tur were ultimately involved in the decision to terminate the Applicant's employment.

[85] For the reasons set out above, the Respondent submitted that the Application should be dismissed.

[86] The Applicant submitted that the Respondent has alleged a formal complaint was made by Ms Chaparadza. However, the Applicant submitted that on the evidence before the Commission, she had reported concerns regarding misconduct and performance issues related to Ms Chaparadza. The Applicant submitted it was "apparent" that Ms Chaparadza exhibited behaviour inconsistent with company values and created a toxic work environment. The Applicant submitted that she had reported these concerns to Ms Grabowski, however, it "appears [Ms Grabowski] used [her] complaint to retaliate against [her]".

[87] The Applicant submitted that in November 2024, she had received a call from Ms Chaparadza who was upset that the Applicant had not offered her shifts that week. The Applicant submitted that she "explained that shifts were allocated based on productivity and business needs". The Applicant submitted that Ms Chaparadza then "verbally abused her" over the phone and she was forced to end the call.

[88] The Applicant submitted that the disciplinary meeting of 12 December 2024 was 'premeditated'. The Applicant submitted that Ms Gomez Tur had:

"concluded that most allegations were unsubstantiated, particularly given Charmaine's and Herbert's histories of misconduct".

[89] The Applicant submitted that despite this:

"Jennifer disregarded these findings and used the complaints as a pretext to undermine [her] position".

[90] The Applicant believed that Ms Grabowski perceived her as a "professional threat" and targeted her as a result.

[91] The Applicant submitted that Ms Grabowski failed to provide her with support or training, ignored staff misconduct, and "actively sought reasons to build a case against [her]".

[92] The Applicant submitted that the Respondent subjected her to a disciplinary meeting without prior notification of specific allegations, involving complaints that lacked transparency, and with confidential communications conducted "behind her back".

[93] The Applicant submitted that the meeting environment was distressing and humiliating, and was conducted by individuals who failed to act professionally and impartially.

[94] The Applicant submitted that following the disciplinary meeting, she raised a formal complaint against Ms Grabowski due to her "unfair treatment [of the Applicant]". The Applicant submitted that she "withheld details prior to the meeting to avoid conflict, anticipating bias due to her tenure and relationships within management".

[95] The Applicant submitted that she was only given two days' notice of the 8 April 2025 PIP Meeting. The Applicant acknowledged that she attended this meeting with a support person.

[96] The Applicant submitted that the PIP process appeared to be another 'mechanism' to justify her termination. The Applicant submitted that Ms Grabowski's 'coaching visits' "focused disproportionately on criticizing [her] rather than supporting development".

Response to allegations by Ms Grabowski regarding Mr Leon

[97] The Applicant submitted that Ms Grabowski has alleged she harassed Mr Leon. The Applicant submitted this was untrue.

[98] The Applicant submitted that Mr Leon's performance was consistently poor, and that he struggled to follow instructions, took feedback negatively, was disrespectful, and demonstrated untrustworthiness. The Applicant specifically alleged that during banking training, Mr Leon had mishandled cash and suggested they not report discrepancies.

[99] The Applicant also submitted that Mr Leon exhibited inappropriate behaviour regarding personal space, which made female coworkers uncomfortable.

[100] The Applicant submitted that the 'team culture report' of the Respondent lacks transparency. The Applicant suggested that it was constructed by Ms Grabowski to undermine her. Further, the Applicant noted she had not been informed of the report prior to the Respondent's materials being filed in this matter.

[101] The Applicant submitted that she was not informed, prior to the 15 April 2025 meeting, that it would be a termination meeting. The Applicant submitted that she had attended the meeting despite being unwell.

[102] The Applicant submitted that the termination decision appeared "predetermined", that her statements were misrepresented and her explanations disregarded by the Respondent.

[103] The Applicant again submitted that language barriers may have contributed to misunderstandings.

[104] The Applicant maintained that the Respondent's management was partial and displayed favouritism.

[105] The Applicant maintained that she was denied a fair opportunity to respond to the allegations against her.

[106] The Applicant maintained that her dismissal was harsh, unjust, and procedurally flawed.

[107] The Applicant has sought 26 weeks' pay as compensation for her dismissal.

[108] I have taken into account all of the submissions that have been provided by the parties and I have attached the appropriate weight to the evidence of the witnesses.

[109] It is not in dispute, and I find, that the Applicant is protected from unfair dismissal, submitted her application within the statutory timeframe, was not made genuinely redundant and did not work for a Small Business.

[110] When considering whether a termination of an employee was harsh, unjust or unreasonable, the oft-quoted joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines (Byrne)[4] is of significance:

"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."

[111] In analysing Byrne, a Full Bench of the Australian Industrial Relations Commission in Australian Meat Holdings Pty Ltd v McLauchlan (AMH)[5] held:

"The above extract is authority for the proposition that a termination of employment may be:

unjust, because the employee was not guilty of the misconduct on which the employer acted;  
unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or  
harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct".

[112] Further, a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd[6] said:

"[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".

[113] I now turn to the criteria for considering harshness as provided in s.387 of the FW Act.

[114] The meaning of the phrase "valid reason" has been universally drawn from the judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd:[7]

"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...".

[115] In Rode v Burwood Mitsubishi,[8] a Full Bench of the Australian Industrial Relations

"... 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."

[116] In Qantas Airways Ltd v Cornwall (Cornwall)[9] the Full Court of the Federal Court of Australia said:

"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."

[117] The Respondent had a right to conduct a performance improvement process following the practices and behaviour of the Applicant. Even putting to one side the event of asking a fellow staff member to sign her in whilst she procured essential medication, an attendance record where the Store Manager is late on 70% of occasions is unsustainable and sets a poor example for the rest of her team. I have taken this into account.

[118] The Applicant's behaviour during the PIP meeting 8 April 2025 was unprofessional and inappropriate. An employee doesn't have the right to accept or reject a PIP, or to simply disagree to participate in a PIP, without ramifications. A PIP gives an employee an opportunity to receive guidance and training from the employer, in order to grow into a role and have a long and satisfying career (see paragraph [12] of this decision). The Respondent clearly saw the potential of the Applicant. She is clearly an employee of skill and possesses the personality to perform the Store Manager role. However, there was obviously a personality clash between the Applicant and Ms Grabowski, which resulted in the Applicant finding objection with every endeavour which involved Ms Grabowski.

[119] The Applicant's refusal to continue to participate in the PIP, her refusal to attend Head Office to participate in any future meetings and her offensive behaviour was clearly misconduct and provided the Respondent with a valid reason to terminate the Applicant.

[120] I am satisfied and find that the Respondent had a valid reason to terminate the Applicant.

[121] The Applicant was notified of the reasons for her dismissal. I have taken this into account.

[122] The Respondent did not give the Applicant an appropriate period of time to respond to the allegations. The Applicant was provided with correspondence on 9 April, indicating the concerns that the Respondent had with the Applicant's behaviour at the meeting on the previous day and invited her to a further disciplinary meeting the following day, 10 April. The Applicant should have been given an appropriate amount of time to provide a written response to these allegations. This may have required the Applicant being given sufficient time to seek legal advice. I have taken this into account.

Section 387(d) - Any refusal of a support person

[123] There was no refusal of a support person by the Respondent, and the Respondent delayed a key meeting on the grounds that the Applicant sought more time to arrange a support person to attend with her. I have taken this into account.

[124] Whilst the Respondent has relied on a warning for unsatisfactory performance provided to the Applicant at the 12 December 2024 meeting, the Applicant was dismissed for misconduct, accordingly this is not a relevant consideration in the present matter.

Section 387(f) and (g) - Size of Employer and dedicated HR specialists

[125] The Respondent is not a small business and has dedicated HR personnel. I have taken this into account.

[126] I have taken into account the Applicant's passion for her work, which undoubtedly was taken as confronting conduct by her casual staff. However, due to the Applicant's refusal to participate in the PIP, the Respondent could not harness the Applicant's passion into the necessary supportive culture that it requires from its management team. I have taken this into account.

[127] The Applicant had no right to withdraw from the PIP process. It was a fair and reasonable process. By withdrawing from the process, the Respondent was left with no alternative than to terminate the Applicant or leave itself open for any employee, in the future, to simply ignore a lawful and reasonable direction without consequences. Further, the Respondent used the PIP to give the Applicant an opportunity to retrain and improve. If the Applicant had advised the Respondent that she wasn't prepared to participate in the PIP, then she probably would have been terminated for the time clock incident.

[128] However, in order for the Applicant to receive her statutory entitlement to a "fair go", the Respondent was required to provide the Applicant with sufficient time to respond to written allegations.

[129] The failure of the Respondent to provide the Applicant with the required procedural fairness renders the termination of the Applicant as unfair.

[130] I am satisfied and find that the termination of the Applicant was harsh and unjust.

[131] Having found that the Applicant's termination was harsh, I now turn to the issue of an appropriate remedy.

[132] The relevant provisions of the FW Act in relation to a remedy for an unfair dismissal are:

"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:

(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."

[133] I have taken into account the provisions of s.392 of the FW Act and the approach adopted Sprigg v Paul's Licensed Festival Supermarket,[10] as articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages.[11]

[134] I have previously found that the Respondent had a valid reason to terminate the Applicant, but that they have not afforded the Applicant her statutory entitlement to procedural fairness in the termination process. As a result, the only compensation to which the Applicant is entitled, is the period of time the Respondent should have taken in undertaking the appropriate process.

[135] Giving an employee only one day to prepare and respond to allegations is ridiculously short. As a Manager, the Applicant would have had the capacity to seek legal advice in relation to this situation. Sourcing a solicitor and obtaining legal advice would normally take, at the very minimum, 5 working days. I also note that the Respondent spent just 20 minutes in considering the Applicant's responses. This timeframe is inadequate and opens the Respondent to the accusation that the decision to terminate the Applicant had already been determined before the meeting had occurred. I am of the opinion that a disciplinary process of this nature should take approximately 2 weeks.

[136] I am satisfied and find that the Respondent must pay to the Applicant 2 weeks' pay plus superannuation.

[1] Digital Hearing Book page 386; Witness Statement of Ms Veronica Gomez Tur, Exhibit VGT-1 at page 22.

[2] Witness Statement of Ms Sophia Sokolov, Annexure B.

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

Printed by authority of the Commonwealth Government Printer

Ms Escarle Mariene Pacheco Hernandez v Swarovski Australia Pty Ltd [2025] FWC 2589 (31 October 2025)

Ms Escarle Mariene Pacheco Hernandez v Swarovski Australia Pty Ltd [2025] FWC 2589

At a glance

Court

Decision date

Source

Judgment (194 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (6)

Ms Escarle Mariene Pacheco Hernandez v Swarovski Australia Pty Ltd [2025] FWC 2589 (31 October 2025)