//
[288]
[2025] FWC 2228
General information, not legal advice.
Fair Work Commission
2025-07-30
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Ms Winfield: I am so glad I have got someone to talk to as Jess [Fraumano] is running me down.
Ms Winfield: She does nothing but call me, puts us down, complains about everyone, she is stoned off her face and she is not making sense. You can tell she is stoned.
Ms Pham: I am going to make a complaint. A few times she has turned up for a shift and was stoned. She was definitely on something and always smoking. I have smelt plenty of marijuana in my time and you can smell it all over her.[3]
Ms Pham: I have spoken to Gerard (Kitt) and told him if they do not do something about it [Ms Fraumano's conduct] I will resign.
Ms Winfield: You are brave doing that. I do not want to get involved. This woman scares me. The people she knows scare me. Trish, I do not know what you want me to do with that. I am not putting my home and children in jeopardy. She has told me she has associated with tough people and she knows how to handle herself.'
Ms Lever: There's been an HR issue. One of our Collectors has come and said there are allegations about verbal abuse and potential drug use as well.
Mr Singh: Can you please send through a written statement from the employee?
Mr Singh: I will deal with the next steps when it comes through.[5]
I apologize for bringing this up, but I feel it's necessary to address some ongoing issues.
I've been observing certain behaviors that have made me uncomfortable. I've tried to stay out of it, as my primary goal is to work and earn my living. However, I can no longer ignore the situation involving bullying among colleagues, as well as concerns about privacy violations. Specifically, I've noticed that Jess seems to be getting inside information about other testers and admin matters from Mel.
I believe it's important for us to create a respectful and safe work environment for everyone. I want to clarify that I've never had a personal issue with Jess; we've always maintained a good working relationship. However, I've recently learned that she has been making complaints about me to other testers and Mel. It's been disheartening to see how she has twisted our interactions, which has affected my integrity. There's times she rocks up late, has not enough stock, swears and curses heavily on site, smokes on site, smells of cannabis from her .. I have never reported her. I worked with her on Monday and she reported me for sending a donor away .. there was one guy waiting to get tested and I had a non-neg and I politely asked him to go to the first aid because there's no one there. She also told Mel I signed off before the job ended. I am sorry, I am very disgusted by her behaviour. I was asked to sign off by Peter because he said we are done. Not until I had packed up and walked to the gate to meet Jess he said there was one missing, so he was looking for that donor. I don't understand her problem .. I waited for her to finish and we would walk out together. I never rang her to say I am leaving to go to the lab first .. how dare she twisted the scenarios to make me look like I am such a bad worker? Who does she think she is? I have attached a screenshot of her writing to Deborah .. if she can report everything us testers do .. well .. I will report everything she does AND I am not the only one that sees it.
I hadn't intended to come forward about Jess's behavior, but after witnessing her harassment and disrespect towards Colette and Deborah, I felt I had to speak up. This behavior needs to stop. Jess often makes disparaging comments about other collectors and FCD on site, speaking so loudly that it's embarrassing for everyone. It's as if she believes she is above us all and can belittle the rest of the testers.
None of us are perfect; we all make mistakes and occasionally forget things. However, we strive to support and respect one another. Jess seems to lack that respect entirely. She would help us out on site, then would go to report to Mel and complain to other testers. I know Deborah is hesitant to come forward, even though we've had our misunderstandings in the past and resolved them maturely. Given how Jess has treated her, I feel compelled to speak up before it affects Deborah further. I have concerns that Jess may be using drugs, though nothing is confirmed without testing. She has mentioned that if she ever has to take a drug test, she knows how to cheat. Additionally, she has shared details with Deborah about how to circumvent the test, which is alarming. I sincerely hope she doesn't share this information with the donors.
I do hope I am wrong about her taking drugs. She did admit she is on medicinal cannabis to Deborah .. but my words are not valid. unless you hear it from Deb, because this is the conversation between them two.
I believe it's important for us all to be held to the same standards to maintain a fair and respectful working environment.
Please hear both Colette and Deborah's story, it's very frightening
She said that she told donors to report you to the office because you sent them away and told Mel you signed off before the job ended and you showed up at a job with only 12 urine devices
When I asked why Jess everyday every shift you feel the need to report someone her response was
Dude because you pricks think you can just change rules to suit yourselves the office and Mel have a right to know
I said anyway have to get petrol and hung up[7]
Ms Fraumano: ...Please just promise me do not repeat. Anything I have said to you today.
Ms Winfield: If she calls back I will call you yeah[13]
Ms Greenall: I have a private meeting with Jemma to put in a complaint about Jess [Fraumano] and lodge a bullying complaint.
Ms Greenall: This is so draining. I am scared. I thank Trish for what she has done but she has now put us in this terrible position where now we have to come forward with a complaint.[15]
There have some things I have witnessed of Jess and her behaviour and it does not sit right with me or for the company. I am not enjoying my role with the company because of Jess' behaviour. I receive numerous telephone calls from her, she would get really angry with me if I did not answer her immediately. Her contact is excessive. Jess would also bad mouth the company and the people within the company and that makes me feel very uneasy. I was on a job with Jess and she spoke to the customer in a rude manner. I suspect Jess to be under the influence of something because she vomited on site once. At the Ventia job she was pacing up and down outside the office and chain smoking. She then vomited in the bathroom and I had to clean it up. I felt like she had overdosed on something. Every time I am on the phone with her I can hear her sounds like lighting a bong in the background. She has also made excuses when she cannot attend jobs at work, I know that she has contacted the office saying that her car had problems but it was a lie to cover up her sleeping in and being late to the site which I suspect is due to drug use. She would also tell me that she would sleep in her car. She told me that she uses Waze all the time to avoid being stopped by Police for random testing. She has told me that used the lie of the gear box in her car breaking because she missed a job. She would always turn up late to the site past the arrival time. The other thing is that she always smokes on site and never off site.[21]
- Can hear things in the background on the phone (like a bong - tap tap tap, lighter flick, crackling)
- use to call daily and continue to contact until collector picks up and would use offensive ruse language on the call about other collectors behaviour with site contacts is inappropriate, talks about other collectors
- Ventia Job - Jess was pacing, chain smoking outside the office and then she vomited in the bathroom and the second collector has to clean it up, she blamed it on a hot chocolate she drunk. The site didn't see it happen as they were in a toolbox. Collector feels she overdosed on something.[22]
Mr Singh: There have been reports that you may have been smoking in the workplace. Can you share your side of the story regarding this?
Mr Singh: It's been alleged that some of your colleagues felt uncomfortable with certain language or behaviour that you have used while working and communicating with them, including through excessive calls and voice mails. This has caused them quite a bit of anxiety, stress and difficulty getting their jobs done - we need to ensure that our employees are able to work in an environment where they don't feel anxious or stressed. Some examples include shouting at your colleagues, using expletives or swear words, speaking down at colleagues and making disparaging comments about them and the FCD office. Are you aware of any interactions which sound familiar to what I've just described?"
Ms Fraumano: Trish stopped testing whilst she had 3 left, and had sent them to Jess
Phone tag with collectors for personal reasons, checking in on them
Mr Singh: Can you describe any recent interactions where you may have been involved in disagreements or conflicts?
Mr Singh: When you reflect on your interactions with your colleagues, do you think there might have been times when your words or actions could have been perceived as offensive or aggressive?"
Ms Fraumano: Shouting over the phone may have been done unintentionally. Volume of voice could be misconstrued the wrong way. Loud sites will mean jess will raise her voice so she can be heard
Mr Singh: What is your approach to managing conflicts or disagreements with colleagues? Have you faced any such situations recently?
Ms Fraumano: Speak to the collector and see what the problem is, and let it go, and go no further.
Mr Singh: Can you describe the general atmosphere or work environment in your department? Have there been any challenges or issues that might have contributed to tensions?
Ms Fraumano: Gets calls from collectors who are whinging and having a vent. She takes on their burden, and if they are not happy, look for something else. - may have been taken the wrong way.
Mr Singh: How would you describe the workplace culture with the Sydney team?
Ms Fraumano: Divide been Syd and West Syd. Not fair for western Sydney going to toolboxes.
Sydney team feel privileged. - Jess not happy with the divide.
Mr Singh: Has anything changed recently that may have affected your mood or behaviour at work?
Trish - will get everyone to try and cover her FCD shifts
Mr Singh: What steps do you think could be taken moving forward to resolve any concerns and ensure a positive work environment?"
Ms Fraumano: Jess wants the collectors spoken to about the assumptions made about her. She feels collectors are talking to each other and then reporting her.
Collectors are scared to approach the office because they feel there will be repercussions.
Mr Singh: If someone was feeling uncomfortable with your behaviour, how would you prefer they approach you about it?
Ms Fraumano: Jess doesn't want to have any outside communication with the collectors. She feels this will put more pressure on the office.
THC flower side - used between waking up - treat as pain as needed. If don't have pain, don't take it, and
will take the CBD oil instead. Can take it when returning home from week if needed.
Taken for mental and pain - for undiagnosed ADHD (suspected) and pain relief
Can't take it when you're on call - will take CBD oil only
CBD oil: no THC, once in morning, and once at lunch time
Mr Singh: Anything else you want to share (noting confidentiality)?
Ms Fraumano: Jess will send pin drops for sites to eliminate collector contact
[43] On 18 October 2024, Ms Fraumano provided a response by email in which she denied the allegations and stated they were frivolous, vexatious and unsubstantiated. Ms Fraumano also demanded that all the evidence in support of the allegations be provided by 25 October 2024 and then she intended to respond seven days later.[31] On 21 October 2024 Mr Singh sent an email to Ms Fraumano extending time for the response to the show cause letter until 22 October 2024.[32]
Note that these allegations were provided to us in writing by multiple FCD employees. These written accounts were treated with strict confidentiality and formed a crucial part of the investigation. During the investigation process, the credibility and sincerity of these allegations were thoroughly assessed to ensure fairness.
GOD never sends you into a situation alone. GOD goes before you. HE stands beside you. HE walks behind you. Whatever situation you are in right now, be confident. GOD is with you.[36]
Ms Fraumano said that she was unsure how Ms Winfield would have known that she had been terminated unless she was informed by someone within First Choice Diagnostic.[37]
Ms Fraumano's responses to the allegations at the hearing
Anthony and Collette (Greenall) do not have enough shifts. Can you see how f******g stupid it is that you were brought on. You should have been a f******g spare. It's not like you are like the rest of us and have years of experience. You are always going to be f******g new. You are always going to be the last one in.
When can the Commission order a remedy for unfair dismissal?
(a) the Commission is satisfied that the person was protected from unfair dismissal at the time of being dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
Was the dismissal harsh, unjust or unreasonable?
(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.
Was there a valid reason for the dismissal related to Ms Fraumano's capacity or conduct?
I receive numerous telephone calls from her, she would get really angry with me if I did not answer her immediately. Her contact is excessive.
Was Ms Fraumano given an opportunity to respond to any reason related to her capacity or conduct?
Did First Choice unreasonably refuse to allow Ms Fraumano to have a support person present to assist at discussions relating to the dismissal?
Was Ms Fraumano warned about unsatisfactory performance before the dismissal?
To what degree would the size of First Choice' enterprise be likely to impact on the procedures followed in effecting the dismissal?
To what degree would the absence of dedicated human resource management specialists or expertise in First Choice' enterprise be likely to impact on the procedures followed in effecting the dismissal?
Note that these allegations were provided to us in writing by multiple FCD employees. These written accounts were treated with strict confidentiality and formed a crucial part of the investigation. During the investigation process, the credibility and sincerity of these allegations were thoroughly assessed to ensure fairness.
Is the Commission satisfied that the dismissal of Ms Fraumano was harsh, unjust or unreasonable?
(a) I am satisfied that reinstatement of Ms Fraumano is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.
Is reinstatement of Ms Fraumano inappropriate?
Is an order for payment of compensation appropriate in all the circumstances of the case?
Compensation - what must be taken into account in determining an amount?
(a) the effect of the order on the viability of First Choice's enterprise;
(c) the remuneration that Ms Fraumano would have received, or would have been likely to receive, if s had not been dismissed;
(d) the efforts of Ms Fraumano (if any) to mitigate the loss suffered by Ms Fraumano because of the dismissal;
(e) the amount of any remuneration earned by Ms Fraumano from employment or other work during the period between the dismissal and the making of the order for compensation;
(f) the amount of any income reasonably likely to be so earned by Ms Fraumano during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the Commission considers relevant.
Effect of the order on the viability of First Choice's enterprise
Remuneration that Ms Fraumano would have received, or would have been likely to receive, if Ms Fraumano had not been dismissed
'[i]n determining the remuneration that the applicant would have received, or would have been likely to receive... the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.'[51]
Efforts of Ms Fraumano to mitigate the loss suffered by Ms Fraumano because of the dismissal
Amount of remuneration earned by Ms Fraumano from employment or other work during the periods (i) between the dismissal and the making of the order for compensation and (ii) the making of the order for compensation and the actual compensation
Is the amount of compensation to be reduced on account of misconduct?
(a) the amount worked out under section 392(6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(i) received by Ms Fraumano; or
(ii) to which Ms Fraumano was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(iii) if Ms Fraumano 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 Ms Fraumano for the period of leave in accordance with the regulations.
How is the amount of compensation to be calculated?
'[t]he well-established approach to the assessment of compensation under s.392 of the FW Act... is to apply the "Sprigg formula" derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul's Licensed Festival Supermarket (Sprigg).[55] This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages[56].[57]
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).
Step 2: Deduct monies earned since termination. Workers' compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation ordered.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.'
[1] Statement of Namandeep Singh dated 11 March 2025 (Singh Statement) [4], Digital Hearing Book (DHB) 195
[3] Statement of Deborah Winfield dated 11 March 2025 (Winfield Statement) [25], DHB 253-254
[6] Statement of Jemma Lever dated 11 March 2025 (Lever Statement) [9] DHB 178, 183-184
[11] Winfield Statement [27], DHB 254
[15] Winfield Statement [28], DHB 254
[16] Winfield Statement [29], DHB 254
[20] Winfield Statement [30], DHB 254
[25] Singh Statement [35]-[36], DHB 201
[27] Singh Statement [39], DHB 201-202
[39] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[40] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373.
[42] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, 685.
[43] Edwards v Justice Giudice [1999] FCA 1836, [7].
[44] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
[45] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
[46] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
[47] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
[48] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].
[49] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [9].
[50] Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].
[51] He v Lewin [2004] FCAFC 161, [58].
[53] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O'Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.
[54] The high income threshold which applied immediately before the dismissal was $175,000.
[57] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [16].
[58] Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].
[59] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [17].
Printed by authority of the Commonwealth Government Printer
Ms Jessica Fraumano
Newport Medical Solutions Pty Ltd [2025] FWC 2228
(1995) 62 IR 371
(1996) 142 ALR 681
(2002) 117 IR 357
(1998) 88 IR 21