s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - whether employee dismissed or continued to be employed - whether dismissal was harsh, unjust or unreasonable considered - dismissal not considered to be unfair - application dismissed.

• [1] On 26 April 2025, Ms Gemma Empenado Asmolo (the Applicant) made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that she was unfairly dismissed from her employment with the Respondent and that her dismissal on 14 June 2025 was harsh, unjust or unreasonable.

• [2] Ms Asmolo's employer is Ms Charuni Vidyapathi (the Respondent), who runs a hairdressing salon trading as Hairy's House in Armadale, Melbourne. Ms Asmolo worked for the Respondent as a Salon Supervisor and Hairdresser. She started working for the Respondent in April 2022.

• [3] Ms Asmolo was provided a letter of offer at the time of her engagement setting out the terms and conditions of her employment, including terms her employment relationship could be terminated with a minimum 2 months' notice by either party.[1]

• [4] Ms Asmolo's employer, the Respondent, denies that she has been unfairly dismissed. Ms Vidyapathi's position is that effective the 7th of April 2025 she gave Ms Asmolo 2 months' notice that her employment would be ending, effective 7th of June. The premise for this decision was an understanding she had that Ms Asmolo would be purchasing the Salon from her within that time. Ms Asmolo did not purchase the Salon. Rather, Ms Vidyapathi submits Ms Asmolo continued working at the Salon, initially without her permission.

• [5] Ms Asmolo says she had no interest or capacity to purchase the Salon. Her position is Ms Vidyapathi owes her a significant amount of money for unpaid wages, annual leave and other entitlements. She submits that she has been unfairly dismissed and seeks orders of reinstatement or compensation and payment of all her outstanding legal entitlements.

• [6] On allocation to my Chambers, directions were issued for a hearing on 8th September 2025 to consider the jurisdictional objection and merits of Ms Asmolo's application.

• [7] Having considered all the submissions and evidence submitted by the parties, I have found that the circumstances of this case are such that Ms Asmolo has not been unfairly dismissed and was employed by the Respondent at the time of proceedings. The application is dismissed as consequence.

• [8] The reasons for these findings are set out below

• [9] There being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing. Considering the views of the parties and the circumstances of this case, I determined a determinative conference was the most effective and efficient way to resolve the matters of contention.

• [10] A determinative conference was conducted on 17 September 2025 on Microsoft Teams. Both Ms Asmolo and Ms Vidyapathi represented themselves in proceedings and provided their evidence and submissions under affirmation. Ms Asmolo was joined by a support person.

• [11] Both the Applicant and Respondent provided a series of written submissions and supporting materials in advance of proceedings. Ms Asmolo provided additional written submissions the day prior to the determinative conference, which I determined to admit into proceedings at the commencement of the proceedings.

• [12] A hearing book, containing all materials filed by the parties was compiled and distributed to the parties prior to the proceeding. I received the entirety of the hearing book into evidence, subject to appropriate weight being given to the evidence that was tainted by opinion, irrelevance or hearsay.

• [13] Section 396 of the Act requires that consideration as to whether a dismissal was unfair cannot occur unless the Commission is first satisfied that the provisions of s.396 have been met. In the present case, it is not contested, and I am satisfied that Ms Asmolo's application was filed on 26th April 2025 and is made within the required timeframe. It is not contested, and I am satisfied that Ms Asmolo was earning below the high-income threshold and is a person protected from unfair dismissal. It is not contested that the dismissal was consistent with the Small Business Fair Dismissal Code. It is also not asserted, and I am satisfied this is not a case of genuine redundancy.

• [14] As I have been satisfied that the requirements of s.396 are met, I am required to consider the merits of whether Ms Asmolo's dismissal was harsh, unjust or unreasonable.

• [15] The Respondent does not accept that Ms Asmolo is a person who has been dismissed within the meaning of the FW Act as she has not been dismissed. Ms Asmolo contends she has been unfairly dismissed, subject to retaliation, abuse and other lawful acts rendering her treatment harsh, unjust and unreasonable.

• [16] Section 386 of the Act outlines the meaning of "dismissed":

(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.

Was Ms Asmolo dismissed or forced to resign because of the conduct, or a course of conduct, engaged in by the Respondent?

• [17] Ms Asmolo's case is that she commenced working for the Respondent in April 2022. Since then, she says she has not been provided with payslips, paid overtime, provided access to paid annual leave or paid her superannuation entitlements correctly. She submits raising concerns with the Respondent to have these issues resolved but that they were not. Consequently, towards the end of 2024, Ms Asmolo raised her concerns about Ms Vidyapathi's failure to comply with her obligations as an employer to the Australian Tax Office (ATO) and the Fair Work Ombudsman (FWO).

• [18] After reporting her to the ATO and FWO, Ms Asmolo's evidence is that Ms Vidyapathi became abusive and aggressive towards her. That she further reduced her working hours and the opening hours of the Salon as acts of retaliation and intimidation against her. On 7th of April 2025, Ms Asmolo accepts she received an unsolicited email and text message from Ms Vidyapathi proposing a Sales Agreement for her to buy the Salon and giving her 3 weeks' notice her employment was being terminated as the sales agreement would be proceeding.

• [19] Ms Asmolo submits she responded to Ms Vidyapathi's offer that she buy the Salon by advising her she was not interested or capable to buying the Salon for $50,000 and that she was an employee who simply wanted to be paid their full legal entitlements. Her evidence is Ms Vidyapathi's response was to tell her she could choose to buy the Salon, or leave, confirming that her employment was still going to be terminated. Ms Asmolo's response was to remind Ms Vidyapathi her employment contract included a requirement for 8 weeks' notice for her employment to be terminated in accordance with their written agreement.

• [20] Ms Asmolo accepts that on the 19th of April, Ms Vidyapathi confirmed she was provided her 8 weeks' notice, effective from the 7th of April notification and that her employment was being terminated in accordance with her contract of employment. Her evidence is that she was given this notice by text message, with no valid reason or prior notice.

• [21] She submits she was significantly impacted by this. That it was unfair, harsh and unjust. Further, that all she was seeking was to be paid her full legal entitlements as part of her termination pay. She says she made Ms Vidyapathi aware of what she was owed and what was required of her as an Australian employer but that she was ignored. She accepts she understood Ms Vidyapathi had travelled to Sri Lanka and submits she was fearful she would never get all the money she was owed and entitled to if she did not return or just closed the Salon.

• [22] Faced with this dilemma, Ms Asmolo submits she felt in limbo. That her health became seriously impacted and she was placed under enormous stress as she could not afford to lose the $69,000 she believes she is owed. She felt she had to save the Salon and continued to work there to try and do so. Her evidence is that as Ms Vidyapathi was out of the country she did not care she did so.

• [23] Ms Amolo continued to perform work in the Salon for clients after June 14. In August she identifies an attempt by Ms Vidyapathi to make her redundant and, further, that on 22nd of August Ms Vidyapathi rang her attempting to force her to resign.

• [24] Ms Vidyapathi accepts that on the 7th of April she gave Ms Asmolo notice her employment would be ending. Her evidence is that the Salon was underperforming and that she either wanted to sell it to Ms Asmolo via a sales agreement or take steps to reduce its operating costs, including ending Ms Asmolo's employment.

• [25] When Ms Asmolo indicated she was not interested in buying the Salon, Ms Vidyapathi confirmed her decision to the Applicant, that she intended to terminate her employment. Her evidence is that she initially sought advice from the FWO about the required notice for termination and that when Ms Asmolo made her aware that her contract included an 8 week notice period, she affirmed this decision providing 8 weeks' notice effective from 7th April 2025.

• [26] Ms Vidyapathi submits it was understood on this basis that Ms Asmolo's employment would end on the 14th of June 2025 in accordance with the terms of her contact of employment. That she provided Ms Asmolo notice of her termination consistent with the employment contract between them and that there was nothing unreasonable or unfair about this decision.

• [27] Ms Vidyapathi submits not long after this time she travelled to Sri Lanka for personal reasons. She did so with an understanding Ms Asmolo was would no longer be working at her Salon after 14th June.

• [28] Her further evidence is that despite this understanding, after the 14th of June Ms Asmolo refused to stop working. That she continued to open the Salon for business without permission while she was in Sri Lanka, receiving cash payments from clients as her ETPOS machine had been removed.

• [29] Ms Vidyapathi's evidence that as Ms Asmolo continued working this way at her Salon, she had to come back to Australia to resolve things. She submits she did this on the 7th of July and told Ms Asmolo to keep the cash she had received for the work she had performed from the 14th of June. She then got the Salon back up and running with an ETPOS machine and was paying Ms Asmolo for the work electronically again by July 24th.

• [30] Ms Vidyapathi's evidence included a series of payroll transactions recording payments of $960 to Ms Asmolo on 24th, 26th, 30th July and 4th August. She submits these payments have been made on a weekly basis thereafter. And that she has been forced into this position because Ms Asmolo and her partner have refused listen to her, demanded money she did not owe them and used her Salon, supplies and equipment without her permission. She argues firstly that Ms Asmolo has not been dismissed because she has continued to work at the Salon despite being told not to. And secondly, that the only termination decision she made was to give Ms Asmolo notice she wanted to terminate her employment with 8 weeks' notice consistent with the terms of her contract of employment from the 7th of April 2025.

• [31] In her F2 Application form filed with the FWC on 26th April, Ms Asmolo records the day her termination took effect as the 14th of June 2025.[2] This is the application for unfair dismissal remedy I am determining in this decision.

• [32] My determination of whether Ms Asmolo was unfairly dismissed on the 14th of June 2025 turns on my consideration of whether, in fact, Ms Asmolo had been dismissed at that time.

• [33] The evidence in this unusual case does not completely support this conclusion.

• [34] In the determinative conference, both the Applicant and the Respondent agreed that in early April 2025, Ms Vidyapathi sought to terminate Ms Asmolo's employment. Ultimately, both the Applicant and Respondent agreed that consistent with the 8 weeks' notice requirement in Ms Asmolo's contract her employment was due to end on 14th June 2025.

• [35] Ms Asmolo further accepted that she was paid her usual weekly wage of $960.00 for the 8 weeks from 7th April to 14 June.[3]

• [36] In her evidence, Ms Asmolo also submitted and accepted that she continued working at the Salon after the 14th of June,[4] and that she continued to work at the Respondent's Salon into August 2025.[5]

• [37] Considering this evidence, prima facie I am unable to conclude that Ms Asmolo was dismissed on the 14th of June 2025 as claimed in her application. It would follow that I am also unable to conclude her dismissal was harsh, unjust or unreasonable. On this basis, the FWC lacks jurisdiction to consider her application further and it must be dismissed.

• [38] If I am wrong about this, for completeness I have also considered this matter based on a finding Ms Asmolo's employment did in fact end on 14th of June.

• [39] In the determinative conference, Ms Asmolo identified a period of approximately 3 weeks from the 14th of June to early July that she did not receive any pay into her bank accounts for her work at the Salon.[6] She accepts that she started getting paid her usual weekly wage again after this time.[7]

• [40] Ms Vidyapathi accepts she did not pay Ms Asmolo into her bank account for this 3-week period because she was not supposed to be working for her. She argues Ms Asmolo kept all the cash payments received by clients for the work she performed in her Salon during this time. On this basis, she maintains Ms Asmolo has been paid everything she is entitled to.

• [41] Ms Asmolo does not dispute she was in receipt of cash payments for the work she performed at Ms Vidyapathi's Salon for the period from 14th June to early July. She maintains, however, that she has not been paid everything she is entitled too, amounting to some $69,000.

• [42] In the circumstances of this case, there is no evidence of what Ms Asmolo earnt for her work after the 14th of June or that she was in fact paid for this work by the Respondent. Ms Vidyapathi's evidence is that Ms Asmolo performed work for cash on her premises during this period without her permission while she was in Sri Lanka. The basis of her claims that she does not owe Ms Asmolo anything for this work is that she received cash for it from clients.

• [43] Considering that Ms Asmolo was no longer paid by the Respondent after the 14th of June and that she was not directed or given permission to work after this time, despite my conclusion above it is also reasonable to conclude that Ms Asmolo's employment with the Respondent did in fact end on 14th of June 2025. The above set of facts, which are plausible in my view, and I accept, for the purposes of completeness support this conclusion.

• [44] This cessation of her employment relationship was the result of the 8 weeks' notice of termination she had received from Ms Vidyapathi by text message in early April.

• [45] That Ms Asmolo continued to work in the Salon and received cash payments for this work does not detract from the uncontested facts above, that Ms Asmolo was provided notice her employment would end on 14th of June and that she was no longer paid by the Respondent for a period after this time.

• [46] In these circumstances, I consider it reasonable to conclude Ms Asmolo worked independently for cash for the period of 14 June to early July. And further, that from not long after Ms Vidyapathi's return from Sri Lanka on the 7th of July she entered a new employment relationship with the Respondent that remained on foot at the time of the determinative conference.

• [47] In these alternative circumstances, I consider Ms Asmolo was in fact dismissed within the meaning of the Act on June 14th at the initiative of the Respondent.

Was this dismissal harsh, unjust or unreasonable?

• [48] While I have found the evidence in this case can support a conclusion Ms Asmolo's employment ended because of the conduct, or course of conduct of her employer, it does not automatically follow that her termination was unfair. In making this determination, I must consider all the circumstances of the case along with the relevant authorities.[8] A dismissal may be unfair, when examining if it is 'harsh, unjust or unreasonable' by having regard to the following reasoning of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd:[9]

"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."

• [49] Section 387 of the Act provides for the criteria for consideration whether a dismissal was harsh, unjust or unreasonable as follows:

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant."

• [50] I am required to consider each of these factors, to the extent they are relevant to the factual circumstances before me.[10]

• [51] I have set out my consideration of each below.

s.387(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)

• [52] In order to be a valid reason, the reason for the dismissal should be "sound, defensible, or well founded"[11] and should not be "capricious, fanciful, spiteful or prejudiced."[12] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[13]

• [53] In the present case, neither party argued that the reason for dismissal was because of Ms Asmolo's capacity or conduct. In short, Ms Asmolo argues she was provided no reason for her termination while the Respondent argues she was given notice consistent with the terms of her contract of employment.

• [54] Ms Asmolo accepted that she was provided with 8 weeks' notice her employment would be terminated on the 14th of June. Her evidence is that in fact she made the Respondent aware of this requirement. I accept this evidence and that it is clearly the case, Ms Asmolo was made aware Ms Vidyapathi intended to terminate her employment consistent with the terms of her employment contract.

• [55] Ms Vidyapathi argues that the reasons for this decision were that she anticipated Ms Asmolo was going to buy the Salon from her but that ultimately the business was not making money and needed to reduce expenses.

• [56] There is no evidence Ms Vidyapathi made Ms Asmolo aware of the financial reasons why she wanted to sell the business. In circumstances where she may have been hoping Ms Asmolo's would purchase her Salon for $50,000 that she did not have, the fact that she did not disclose its financial position is hardly surprising, albeit morally void.

• [57] Ultimately, I find the only reason Ms Vidyapathi provided Ms Asmolo for her termination was it was consistent with the contractual terms of her employment. The text message she sent to Ms Asmolo makes this clear. It read as follows:[14]

"Hi Gemma, yes, since you want to go with the contract, I will give you two months notice which includes the termination notice beginning from April 7th."

• [58] The termination term of the letter of employment signed by both Ms Asmolo and the Respondent reads as follows:[15]

"Termination Notice is agreed to be minimum of two months' notice by both sides with early leave payout of the full amount if mutually agreed and is to both parties' benefit."

• [59] I am satisfied that a reliance on the terms of the agreement reached between the parties was the reason for dismissal. I am satisfied this is a valid reason that does not relate to Ms Asmolo's conduct or capacity. I am, therefore, satisfised that this factor weighs in favour of the Respondent that Ms Asmolo was not unfairly dismissed.

s.387(b) Whether the person was notified of that reason

• [60] Proper consideration of s.387(b) requires a finding to be made as to whether the Applicant "was notified of that reason". Contextually, the reference to "that reason" is the valid reason found to exist under s.387(a).[16]

• [61] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[17] in explicit,[18] plain and clear terms.[19]

• [62] As identified by the Full Bench in Crozier v Palazzo Corporation Pty Ltd:

"As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before a decision taken to terminate their employment in order to provided them an opportunity to respond to the reason identified."

• [63] As I am not satisfied that there is a valid reason for dismissal related to Ms Asmolo capacity or conduct, this factor is not strictly relevant in this case.[20] If I had found there was a valid reason for dismissal, I would have found that Ms Asmolo was notified of the reason for her dismissal prior to a final decision being communicated to her. The evidence is this case is that Ms Vidyapathi provided Ms Asmolo with clear notice her employment would be terminated effective 14 June 2025.

• [64] Given these circumstances, I consider this to be a neutral factor.

s.387(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

• [65] In the circumstances of this case the reason for termination is not related to Ms Asmolo's capacity or conduct. This factor is, therefore, not relevant to this case, and I consider it to be neutral.

s.387(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

• [66] This factor is not relevant to the facts of this case as there was no request or opportunity for this to occur in the circumstances of this case.

s.387(e) If the dismissal related to unsatisfactory performance by the person‑ - whether the person had been warned about that unsatisfactory performance before the dismissal

• [67] This factor is not relevant to the facts of this case as the ending of the employment relationship did not relate to unsatisfactory performance.

s.387(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 s.387(g) - Whether the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise impacted on the procedures followed

• [68] The Respondent has not made any submissions on the size of its business or the absence of a dedicated human resource specialist. I consider this to be a neutral factor.

s.387(h) Any other matters that the FWC considers relevant

• [69] Neither party brought any other relevant matters to my attention that I consider relevant to the jurisdiction of the Commission with respect to Ms Asmolo's application. That is not to say that there no other relevant matters to this dispute between Ms Asmolo and Ms Vidyapathi.

• [70] Ms Asmolo refers to serious claims of underpayment and non-compliance with both the relevant Award and related superannuation legislation. Ms Vidyapathi refers to incidence of illegal occupancy of the premises and unauthorised use of supplies and equipment, amongst other things.

• [71] As I made clear to both parties in the determinative conference, these matters are not matters within the jurisdiction of the Commission with respect of Ms Asmolo's application for unfair dismissal. In this regard, I have been satisfied that while Ms Asmolo was dismissed this was not an unfair dismissal within the meaning of the FW Act.

• [72] I have considered all the relevant evidence and submissions of the parties in the circumstances of this case.

• [73] For completeness I have considered both the scenarios contended by the Applicant and the Respondent in the circumstances of this case.

• [74] Firstly, I have considered that Ms Asmolo was not dismissed on the 14th of June 2025 but continued working for the Respondent. In this regard, I have been satisfied that because she was not dismissed, her application must be dismissed by the FWC for want of jurisdiction.

• [75] I have also considered this case based on a finding that Ms Asmolo was in fact dismissed at the initiative of the Respondent effective the 14th of June 2025. In this regard, for the reasons set out above, I not been satisfied that this dismissal was harsh, unjust or unreasonable and, therefore, unfair.

• [76] Accordingly, the application is dismissed.

[1] Attachments to F2 Application, Digital Court Book ('DCB') p.157-158.

[2] Form F2 Application dated 26 April 2025, DCB p.152.

[3] Transcript of Proceedings on 17 September 2025, PN276-279.

[4] Applicant's Submissions dated 27 August 2025, DCB p.6-7.

[8] See Australian Hearing v Peary [2009] AIRCFB at [39].

[10] 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].

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

[13] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681 at [685].

[14] Attachments to F3 Employer Response, DCB p.175.

[15] Attachments to F2 Application, DCB p.158.

[16] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [55].

[17] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [151].

[18] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

[20] Read v Gordon Square Child Care Centre [2013] FWCFB 762 [46]-[49]; also Rizvi v Salini [2023] FWC 3112 at [48]- [50], [56]-[57].

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