//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2020] FWC 5308
defendant. The Commission found TLB had complied with the Small Business Fair Dismissal Code, held that Ms Fitzgerald was not unfairly dismissed, and dismissed her application.
The Commission did not decide whether Ms Fitzgerald's travel actually broke a health directive. It decided whether TLB, a very small organisation providing care only to its founder, reasonably believed that the undisclosed travel and return to work created a serious risk requiring immediate dismissal. The Deputy President accepted that belief as genuine and reasonable in the unusual circumstances of early April 2020, including Ms Barton's vulnerability and the potential effect on her access to care. TLB therefore met the Small Business Fair Dismissal Code, and the application was dismissed.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1 cited instrument linked from this judgment.
2,220 words · generated 01/10/2026
Ms Rebecca Fitzgerald worked casually for TLB Assistance Pty Ltd as a Lifestyle Support Worker from November 2012 until 6 April 2020. TLB was established by Tanya Barton to manage NDIS support provided to her, and the decision records that it provided no services to other clients [2]. Ms Barton had cerebral palsy and was regarded in the evidence as highly vulnerable to COVID-19 [34], [42].
The dispute arose during the early COVID-19 period. Ms Fitzgerald said that she had spoken with Ms Barton on 9 March 2020 about possible weekend travel to Hervey Bay to help her mother move to Brisbane. She said Ms Barton did not raise concerns about the travel at that point [16]. Ms Barton accepted that Ms Fitzgerald had said she would occasionally travel to Hervey Bay [22]. Her evidence was that she was seeking firmer dates and had considered paying Ms Fitzgerald to isolate for 14 days after a planned future trip [23].
On 6 April 2020, Ms Fitzgerald returned to work after travelling to Hervey Bay and disclosed the trip after she had already been in Ms Barton's home. TLB's termination letter said that Ms Fitzgerald had put Ms Barton and other support workers at risk by not following COVID-19 guidance, travelling, returning to work without a self-isolation period, and not disclosing the trip before entering the home [3]. TLB dismissed her immediately for serious misconduct and gave no notice [3].
Ms Fitzgerald applied for an unfair dismissal remedy on 25 April 2020 [1]. At a conciliation on 19 May 2020, the parties reached a settlement subject to a cooling-off period, but Ms Fitzgerald withdrew from the agreement within that period [6]. The Commission held a hearing on 3 August 2020 to determine the Code objection and the application [7].
The decision focused first on the jurisdictional question: whether TLB was a small business employer and complied with the Small Business Fair Dismissal Code. TLB's small-business status was not disputed [5]. The Commission found that the Code was satisfied and dismissed the application [45]-[46]. The case heading notes that an appeal under s 604 was lodged, but this judgment does not report the appeal's outcome.
The Commission applied the summary dismissal part of the Code, which says that an employer may dismiss without notice or warning when it believes on reasonable grounds that the employee's conduct is serious enough to justify immediate dismissal [11]. The decision explained that the inquiry has two parts: whether the employer actually held that belief, and whether reasonable grounds supported it [12]-[15].
First, Deputy President Lake found that Ms Barton did hold the required belief. The evidence the Deputy President accepted included Ms Barton's fear that she or her team might be exposed, her view that Ms Fitzgerald's actions were reckless and dangerous, and her decision not to provide notice after discussing serious misconduct with Ms Kent [30]-[31]. This was a finding about Ms Barton's state of mind, not a finding that Ms Fitzgerald had actually committed serious misconduct.
Second, the Deputy President assessed whether the belief had reasonable grounds. The governing approach was contextual: the Commission had to consider the particular employer, the employer's circumstances and resources, and whether the conclusion was reasonable in those circumstances [12], [33]. The decision recognised that TLB could have taken other steps [33]. It did not treat the Code as demanding one prescribed investigation process for every small employer.
Several facts shaped the assessment. TLB was exceptionally small in practical operation and existed to provide care to Ms Barton alone [34]. Ms Barton was significantly disabled and vulnerable, and Ms Fitzgerald's own evidence described her as very high risk [34]. The decision also considered the wider uncertainty about COVID-19 in early April 2020, including public health concern about people with existing health conditions and the Prime Minister's 29 March 2020 statement advising people to stay home except for specified purposes [38]-[40].
The Deputy President expressly accepted that Ms Fitzgerald had not, in fact, acted inconsistently with a health directive [41]. That did not determine the Code issue. The Commission was not deciding whether the employer's belief was correct, but whether it was reasonable on the information and circumstances then available [13], [41]-[42]. The travel itself was undisputed, and Ms Barton had learned of it only after Ms Fitzgerald had entered the home [3], [44].
The limited inquiries were also considered. The Deputy President noted that Ms Barton spoke with Ms Kent and spent some hours researching information online, including government websites [44]. The judgment accepted that it might have been preferable to speak with Ms Fitzgerald before dismissal, but found that the Code did not require this step in the circumstances [44]. It further held that the absence of evidence of a formal investigation does not automatically bar a finding of reasonable grounds, although it may make such a finding harder to establish [43].
The result was specific to the facts. The Commission did not formulate a general rule that travel during the pandemic, or a failure to disclose travel, always justifies summary dismissal. It concluded that this employer's belief was reasonable in the particular care and vulnerability context before it [34]-[44].
The decision applied, rather than replaced, the existing statutory framework. Section 388 of the Fair Work Act 2009 (Cth), quoted at [10], provides that a dismissal is consistent with the Code where the employer was a small business employer and complied with the Code. Section 396 requires the Commission to decide specified threshold matters, including Code compliance, before considering the merits [4], [10].
The decision's account of the two-part approach drew on the Full Bench decision in Pinawin v Domingo [2012] FWAFB 1359. As set out at [12], the test asks whether the employer held the serious-misconduct belief and whether that belief rested on reasonable grounds. The latter element incorporates consideration of whether the employer conducted a reasonable investigation. But Pinawin also states that reasonable action does not require a single course of action, and that the employer's experience and resources matter [12], [33].
The decision also relied on the principle that the Commission need not decide whether the alleged conduct actually occurred or whether the employer's belief was ultimately correct [13]. It instead examined whether the belief was genuine and reasonable when formed. In that respect, the decision's treatment of the absence of an actual health-directive breach was an application of the stated test, rather than a change to it [41]-[42].
The most practically notable clarification is at [43]. Evidence of an investigation or inquiry is not invariably essential to establishing Code compliance. Its absence can make it difficult to show reasonable grounds, but it is not a conclusive bar. This sits alongside, rather than displaces, the requirement for reasonable grounds and the relevance of the employer's inquiry process [12], [15], [43].
The decision's application demonstrates how contextual the assessment can be. The employer's size, operating purpose, resources, and the consequences of an exposure for its sole client were treated as significant [34], [36], [42]. The judgment does not say that small size excuses unfairness generally, or that a vulnerable employer can dismiss without a reasonable basis. It says the Code assessment must account for the specific circumstances, and that TLB's belief was reasonable on this record.
At [12], the decision summarises the two-stage inquiry: first, whether the employer believed the conduct was serious enough for immediate dismissal; second, whether reasonable grounds supported that belief. In plain English, the Commission examines both the employer's actual view and whether it had a reasonable basis for that view.
At [33], the Deputy President says there is no single course of action that every small business must follow. This does not remove the need for a reasonable process. It means the adequacy of the employer's response is assessed in context, including the employer's experience and resources, as described through Pinawin.
At [41], the Deputy President accepts that Ms Fitzgerald had not actually breached a health directive, but explains that TLB did not have to prove an actual breach to succeed on the Code objection. In plain English, the case turned on the reasonableness of the employer's belief, not on a separate finding that the employee violated a government rule.
At [43], the judgment states that evidence of a formal investigation is not critical in every case. The next sentence is important: lack of such evidence may make it difficult to find reasonable grounds, but does not automatically prevent that finding. The passage therefore avoids treating investigation as either irrelevant or an absolute procedural prerequisite.
At [44], the Deputy President observes that a discussion with Ms Fitzgerald before dismissal may have been preferable. The decision nevertheless finds that the Code did not require that step in the circumstances. This is a contextual conclusion, not a general statement that employees need never be heard before a small business dismissal.
The decision is most relevant to a small business employer relying on the Code's summary dismissal provision, where the employer says it genuinely believed the employee's conduct was serious enough to require immediate dismissal. The decision indicates that the Commission will look for evidence supporting both the existence of that belief and the reasonableness of its grounds [14]-[15], [28]-[32].
It is also relevant where a small employer has limited capacity to conduct a formal investigation. The judgment says that the absence of formal inquiry evidence does not automatically defeat Code compliance, but it remains relevant to whether reasonable grounds have been established [43]. A small employer's resources and experience are part of the assessment, not a substitute for a reasonable basis [12], [33].
The factual context here was unusual. TLB existed to provide support to one person with significant disability-related vulnerability, and a COVID-19 exposure was perceived as potentially threatening the care arrangement [34], [37], [42]. The employee's travel was undisputed, although no actual directive breach was found [41], [44]. Those features were central to the result.
The judgment should not be read as deciding that every undisclosed trip, health-related risk, or breach of workplace policy is serious misconduct. Nor does it decide that any employer's fear of risk is enough. Its stated test still requires a real belief and reasonable grounds, assessed against the circumstances at the time [12]-[15]. The case is best understood as an application of that test to a very small, single-client care provider amid the early pandemic.
The supplied judgment states that an appeal under s 604, identified as C2020/7886, was lodged against the decision. It does not give the appeal result or describe any later court or Commission treatment. On the information available in this judgment, no conclusion can be drawn about whether the decision was affirmed, varied, reversed, or otherwise considered on appeal.
The precedent discussion available here is the decision's reliance on earlier authorities, principally Pinawin v Domingo [2012] FWAFB 1359. The Deputy President quotes Pinawin's two-step approach and its instruction to consider the particular employer's experience and resources [12], [33]. The judgment also refers to Khammaneechan, Steri-Flow and Harley in explaining whether actual conduct must be proved and what may support reasonable grounds [13]-[15]. Those are authorities the decision uses; they are not later treatment of Fitzgerald.
For research purposes, this distinction matters. The case's subsequent appellate history cannot be inferred merely from the note that an appeal was lodged. The present judgment supports analysis of Deputy President Lake's reasoning and result, but a complete account of later treatment would require a source reporting the appeal or later decisions.
The decision leaves open how much inquiry will be reasonable in other cases. It says that formal investigation evidence is not invariably required, while acknowledging that its absence can make the employer's burden harder [43]. It does not specify a minimum checklist, duration, or type of inquiry that will be adequate across different small-business contexts.
It also leaves open how far the particular features of TLB's arrangement affected the result. The judgment emphasises that TLB served one client and that Ms Barton was highly vulnerable [34], [42]. It does not decide how the same test would apply to a small employer with several clients, a different care structure, or different means of managing an exposure risk.
The role of an employee's opportunity to respond also remains context-dependent in this decision. The Deputy President said that discussing the matter with Ms Fitzgerald may have been preferable, but was not required by the Code in the circumstances [44]. The judgment does not establish that the opportunity to respond is immaterial in all summary dismissal cases.
Finally, the decision did not determine whether Ms Fitzgerald's actions were, as an objective matter, serious misconduct or contrary to a health directive. It expressly treated actual compliance with a directive as not decisive to the Code question [41]. The decision also does not report the result of the lodged appeal. Those limits should be kept in view when using the case as a precedent.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this information, have a qualified Australian lawyer check it.
[2020] FWC 5308 [Note: An appeal pursuant to s.604 (C2020/7886) was lodged against this decision.]
s.394 - Application for unfair dismissal remedy
Application for an unfair dismissal remedy - small business dismissal code - health care worker - COVID-19 - at risk employer - dismissal compliant with Code - application dismissed.
[1] By application filed 25 April 2020, Ms Rebecca Fitzgerald (Ms Fitzgerald) asserts that her dismissal from TLB Assistance Pty Ltd (TLB) was unfair and seeks an order from the Fair Work Commission (the Commission) granting a remedy in relation to that unfair dismissal.
[2] Prior to her dismissal, Ms Fitzgerald was employed on a casual basis as a Lifestyle Support Worker. It is not in dispute that Ms Fitzgerald's employment with TLB commenced in November 2012 and ceased on 6 April 2020. TLB was established by Ms Tanya Barton to manage National Disability Insurance Scheme (NDIS) support provided to her. Ms Barton receives NDIS support as a result of Cerebral Palsy. TLB does not provide assistance to any other clients and is for the sole benefit of Ms Barton.
[3] Ms Fitzgerald was dismissed by letter, attached to an email, dated 6 April 2020. That letter states, in part:
This letter advises that your position as Support Worker has been terminated immediately without notice, effective Monday 6th April 2020.
Your employment has been terminated on the grounds of serious misconduct.
In order to reach this determination, [TLB] reviewed:
This letter serves as formal notification of your termination on the grounds of serious misconduct. There is no notice period owed due to the grounds of termination."
[4] Section 396 of the Act requires that four specified matters must be decided before the merits of the application may be considered. There was no contest between the parties about three of those matters. I find that:
(a) the application was made within the period required by s.394(2);
(b) the Applicant was a person protected from unfair dismissal; and
(c) the dismissal was not a case of genuine redundancy.
[5] In relation to the fourth matter, being whether the dismissal was consistent with the Small Business Fair Dismissal Code (the Code), TLB objects to Ms Fitzgerald's application, asserting that it is a small business and that the dismissal was consistent with the Code. It is not in dispute that TLB is a small business.[1]
[6] Consistent with the usual practice, the Commission listed the matter for conciliation before a Staff Conciliator that occurred on 19 May 2020. A settlement agreement was reached between the parties at conciliation, subject to the cooling-off period. On 22 May 2020, and within the cooling-off period, Ms Fitzgerald withdrew from agreement stating:
"I have had 3 days to consider the settlement offer and after speaking with Working Woman QLD, I would like to decline the settlement offer given at conciliation on the the 19th May 2020.
I would like to take this matter further and have it conducted as a determinative conference please."
[7] The matter was subsequently referred to me for determination. Directions were issued to the parties to file submissions and evidence in relation to Ms Fitzgerald's application and TLB's jurisdictional objection. A hearing occurred to deal with both matters on 3 August 2020. At hearing, Ms Fitzgerald was represented by Ms Isabella Morosan of Basic Rights Queensland Incorporated (Working Women Queensland Program), and TLB was represented by Ms Tara Kent of Instinct CBT Pty Ltd.
[8] It is convenient to, and required that I, commence by considering and deciding the jurisdictional matter. In the event that I decide that the dismissal was not consistent with the Code, I will return to considering the merits of Ms Fitzgerald's application.
[9] Ms Fitzgerald has applied under s.394 of the Act. As discussed above, it is not in dispute that Ms Fitzgerald's application has been made within the time specified by s.394(2)(a) of the Act.
[10] Consistent with s.396 of the Act, before considering the merits of Ms Fitzgerald's application I must decide whether the dismissal was consistent with the Code. Section 388 of the Act provides that a person's dismissal was consistent with the Code if:
"(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person's employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal. "
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal.
Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair, it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.
The employee must be warned either verbally, or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem having regard to the employee's response.
Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer may be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia.
Evidence may include a completed check list, copies of written warning(s), a statement of termination or signed witness statements."
[12] The summary dismissal aspect of the Code was considered by a Full Bench of what was then Fair Work Australia as follows:
"[29] ... There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee's conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.
[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned."[2]
[13] It is not necessary for a finding to be made that the alleged conduct occurred.[3] However, the Commission does need to make a finding as to whether the employer had a reasonable belief that the conduct of the employee was serious enough to warrant immediate dismissal. It is not necessary to make a finding as to whether that belief is in fact correct.
[14] In order to make a finding that an employer believed on reasonable grounds that the conduct of the employee was serious enough to justify immediate dismissal, the employer must establish, as a question of fact, that they held the belief that:
The conduct was by the employee;
The conduct was serious; and
The conduct justified immediate dismissal.
[15] It is not enough to merely establish that the employer did in fact hold this belief. The employer must also establish that they had reasonable grounds to hold the belief. This may be done, although not exclusively, by providing evidence of inquiries or investigations undertaken by the employer to establish their belief.[4]
SUMMARY OF SUBMISSIONS AND EVIDENCE OF MS FITZGERALD
[16] Ms Fitzgerald asserts that on 9 March 2020 she had a discussion with Ms Barton concerning her plans to travel over the coming weekends and would continue to do so until 20 April 2020. At that time, Ms Fitzgerald was intending on travelling to Hervey Bay on weekends and days off to assist her mother move to Brisbane. Ms Barton did not raise any concerns with Ms Fitzgerald about potential risks from this travel.
[17] The crux of Ms Fitzgerald's complaint in relation to the Code, is that TLB did not have reasonable grounds to hold the belief that Ms Fitzgerald commit a serious breach of occupational health and safety procedures. TLB did not conduct appropriate inquiries or investigations to establish their belief. In submissions, Ms Fitzgerald submits:
"[TLB] had access to support and advice from human resource management specialists and/or expertise in effecting Ms Fitzgerald's dismissal. If [TLB] did have reasonable grounds to hold the belief that Ms Fitzgerald committed a serious breach of occupational health and safety procedures, it would be reasonable to assume that [TLB] conducted thorough inquiries and investigations and received in-depth and thorough advice and support from human resource management specialists and/or expertise prior to effecting Ms Fitzgerald's dismissal."
[18] A period of five and a half hours passed between when Ms Fitzgerald first brought to Ms Barton's attention that she had recently travelled intrastate and Ms Fitzgerald's dismissal. It is not possible to have made appropriate inquiries within this very short period of time.
[19] Ms Fitzgerald accepts that small businesses are different organisationally and operationally when compared with larger enterprises. However, a business' size does not mean that a dismissal can be devoid of fairness and the Code will not protect an employer that has engaged in conduct that is improper, belligerent and bullying.[5] Ms Fitzgerald submits:
"As observed by the Commission, [TLB] is unable to use its size as a shield against other factors that indicate that the dismissal was harsh, unjust and unreasonable."
[20] Additionally, TLB does have access to advice and support from human resource management and occupational health and safety specialists.[6]
[21] In submissions and evidence filed prior to hearing, TLB does not contest many of the facts of this matter and does not dispute Ms Fitzgerald's version of events as given in her initial evidence in response to the jurisdictional objection.[7] However, as transpired at hearing and is apparent from the witness statements, TLB does contest some important issues.
[22] Ms Barton accepts that Ms Fitzgerald did say that she would occasionally travel to Hervey Bay.[8]
[23] As concerns the evolving COVID-19 situation, Ms Barton has given the following evidence:
"Across the last 2 weeks of March, after being informed by Tara Kent that COVID was becoming a much bigger issue than originally thought, I started watching the television and listening to the increasing panic about the emergency. I was even more fearful for my own wellbeing as my brother has a pregnant wife and I didn't want to impose upon his impending family if I needed to isolate. I have been talking to Tara in our zoom conversations about how to put a shower outside and we had been both trying to source any respite options in case any member of my staff team bought a possible infection into the team. I had started to read up about what other places and people with disability were doing to protect themselves and I had started thinking about how quickly COVID could spread through my team if anyone acquired an infection.
On 31 March 2020 I was becoming increasingly worried about when Ms Fitzgerald would be requiring time off. I had been speaking to Tara already about what I needed to do if she chose to travel and I needed confirmation of dates so I could organise to set up a system to pay her for 14 days of isolation. I had the conversation described by Ms Fitzgerald in point 7 of her Evidence Statement as I was again trying to get any confirmation of when she would be travelling up north. I had already talked to Ms Kent about setting up a paid isolation for Ms Fitzgerald for upon her return, but wanted to make sure it wasn't happening sooner than I had expected. At this point, I was expecting this to happen on the weekend of the 10-12 April. I had started to plan that I could pay Ms Fitzgerald her normal weekly amount to isolate for 14 days from 13 April until 27 April 2020. This would enable the 14 day period to expose if any infections existed after her travel up north. In this conversation Ms Fitzgerald said there was further extensions and still had no final dates to tell me."
"I immediately felt sick with dread and fear. I was so worried about if she had contracted anything while up north and within a short amount of time of this shift, I felt extremely angry at her for placing me and my entire team in significant risk. I kept thinking about how reckless and dangerous her actions were and kept wondering why she didn't give me any warning about impending travel. I had asked so many time when it was going to happen. I felt mad at myself that I thought I was safe to wait any longer to organise the 14 day paid self-isolation and made at myself for trusting her to give me any notice at all that she would be travelling. I don't remember much of that shift, except knowing that I needed to contact Ms Kent to get some help in how to cease her from ever working with me again. I was very scared for my safety and welfare from this point forward. I knew that there was no point in stopping the shift early as the damage was likely to already be done and if she was potential (sic) infections, then the amount of time she spent with me didn't matter, I would have to take the same steps regardless of if she was there for 1 minutes (sic), or 4 hours. I contacted Ms Kent early into this shift to make sure she was free to chat as soon as Ms Fitzgerald left."
[26] Ms Barton's evidence in chief included the following exchange:
"With everything, okay. My next comment there is when Ms Fitzgerald turned up for her shift, comments were made that you then let her finish the shift and then afterwards contacted myself. When Ms Fitzgerald told you that she had already travelled on 6 April, in the morning or whenever it may have been, what were your thoughts? What were you thinking after you heard that?---I was very shocked.
You were very shocked?---I couldn't understand why - - -
You couldn't understand why - - -?--- - - - she would travel when - - -
She would travel when - - -?--- - - - there was so much talk about - - -
Sorry, I missed that, Tanya?---There was so much talk - - -
When there was so much to talk about? Right?---About COVID and talking about maybe closing everything down.
There was so much talking about closing everything down?---Yes."
[27] Ms Barton explains the discussions she had with Ms Kent concerning the dismissal of Ms Fitzgerald as follows:
"I asked Ms Kent's help with what needs to be on a Termination Letter. She talked to me about the options for dismissal. I didn't want to give her any notice period or payments in addition to the absolute legal necessity as she had put my safety and the safety of all my staff team in significant risk. I kept thinking about how I was going to live without workers and how I was going to shower outside in the freezing cold. I was very made and still unsure about what to do about other workers and who I needed to notify.
I made it clear to Ms Kent that this was absolutely serious misconduct when she explained this option. I asked her to make the letter template based on a termination due to serious misconduct. She gave me a template with some text in it and I had to add the workers name, address and date of termination."
[28] It is not in dispute that TLB is a small business employer. The matter for my determination is whether TLB complied with the Code in relation to the dismissal. I will commence by considering whether TLB has established that Ms Barton held a belief that the Ms Fitzgerald's conduct was sufficiently serious to justify immediate dismissal.
[29] Leaving aside the Applicant's dispute about the reasonableness of such a belief, I do not understand that the Applicant seriously disputes that Ms Barton did in fact hold the belief that Ms Fitzgerald had engaged in conduct that was serious enough to justify immediate dismissal.
[30] Regardless, I accept Ms Barton's evidence, amongst other things, that:
upon being advised that Ms Fitzgerald had travelled to Hervey Bay she immediately felt sick with dread and fear;
she considered that Ms Fitzgerald had place her and the entire team at significant risk;
Ms Fitzgerald was reckless and dangerous in her actions;
If a case of COVID-19 occurred it would be impossible for Ms Barton to get care;
Ms Barton was very concerned that she may have contracted something from Ms Fitzgerald;
After discussing serious misconduct with Ms Kent, she considered Ms Fitzgerald's actions amounted to serious misconduct; and
She did not wish to give notice of dismissal to Ms Fitzgerald.
[31] Consequently, I accept and find that Ms Barton, the controlling mind of TLB, did in fact hold the belief that Ms Fitzgerald had engaged in conduct that was serious enough to justify immediate dismissal.
[32] Next, I need to consider whether that belief was based on reasonable grounds. I conclude that it was.
[33] As a starting point, it is fair to say that there are any number of other steps that TLB could have taken in deciding what to do in relation to Ms Fitzgerald's conduct. However, there is no one single course of action that a small business is obliged to take in complying with the Code. As the Full Bench has made clear:
"The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned."
[34] The particular employer in question here is a very small business; in truth it is not really a business at all. TLB operates with its sole undertaking being the provision of care to Ms Barton, and Ms Barton only. In my view, this is significant. While obviously an intelligent person, Ms Barton is nonetheless significantly disabled and vulnerable as a result of cerebral palsy. Ms Fitzgerald's own evidence is that Ms Barton is "very high risk".[12]
[35] The evidence establishes that Ms Fitzgerald was well aware of the significant risk that COVID posed. Ms Fitzgerald and Mr Nuttal's evidence is that COVID was "changing all the time".[13] Ms Fitzgerald was so concerned for her mother, who is also vulnerable, that she took steps to ensure she "triple checked"[14] everything. Mr Nuttall considered the very real risk posed in stating that efforts were taken to check things because "...nobody can afford to bring anything like that home".[15]
[36] The specific context in which TLB's belief was formed leads me to the view that what steps Ms Barton did take, which were limited, were nonetheless reasonable.
[37] More generally in relation to Australians living with a disability, many were faced with the very real prospect that their means of support and care could disappear at a moment's notice. The distress experienced by Ms Barton after finding out about Ms Fitzgerald's travel to Hervey Bay is a fear that was experienced by any number of Australians living with a disability. In that context it is not surprising that Ms Barton formed the view that she did and took immediate steps to protect herself and those that worked for her. From Ms Barton's perspective, Ms Fitzgerald's actions were "quite selfish"[16] and had taken away her choice to assess and manage the risk that she was faced with as a result of COVID.
[38] To some extent the same consideration applied to the Australian community as a whole. The prevailing circumstances as at 6 April 2020 were such that the world was at the height of the COVID pandemic. It was a time of uncertainty for all of us.
"National Cabinet's strong guidance to all Australians is to stay home unless for:
• work and study if you can't work or learn remotely."[17]
[40] In that same statement, the Prime Minister stated that "[C]oronavirus has more serious impacts on older Australians...and Australians with existing health conditions and comorbidities".
[41] I think it is correct to say that at the time of dismissal, Ms Fitzgerald had not done anything that was in fact inconsistent with any health directive. However, for TLB to succeed it does not have to convince the Commission that it was. The relevant question is whether TLB had reasonable grounds for considering that Ms Fitzgerald's conduct warranted immediate dismissal.
[42] In the context of TLB, set out above, and the circumstances as they existed at the time, I consider that TLB did have a reasonable basis for its belief. In the context of Ms Barton's level of risk, which was 'very high', and the potential impact that a COVID-19 scare could have on our means of assistance, it was not unreasonable for Ms Barton to form the view that she did.
[43] In my view, it is not critical that a small business employer adduce evidence of a process of investigation or inquiry undertaken prior to summarily dismissing an employee to establish that they have complied with the Code. An absence of such evidence may mean it is difficult to conclude that any belief of the small business employer was held on reasonable grounds, but it does not, as a rule, preclude such a finding.
[44] There is evidence of some inquiries being made by Ms Barton concerning Ms Fitzgerald's conduct. In addition to speaking with Ms Kent, Ms Barton spent some hours undertaking research on the internet including government websites.[18] However, it was not necessary for Ms Barton to investigate because the conduct was not in dispute. Ms Fitzgerald went to Hervey Bay. It may have been preferable to discuss the matter with Ms Fitzgerald prior to dismissing her but the Code does not require such a step to be taken and in the circumstances it does not alter my views set out above.
[45] For the reasons given, I am satisfied, and find, that:
Immediately before the time of dismissal, TLB was a small business employer; and
TLB complied with the Small Business Fair Dismissal Code in relation to the dismissal.
[46]
Consequently, I am satisfied that the dismissal was consistent with the Small Business Fair Dismissal Code. Ms Fitzgerald has not been unfairly dismissal. The application is dismissed.
[1] Applicant's Outline of argument: objections at 3a; Attachment 2 paragraph 2.
[2] Pinawin v Domingo [2012] FWAFB 1359, [29]-[30].
[3] Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Cafe [2010] FWA 7891 (Bartel DP, 14 October 2010) at para. 60, [(2010) 204 IR 39]; cited with approval in Pinawin T/A RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359 (Watson VP, Richards SDP, Cloghan C, 21 March 2012) at paras 27, 29, [(2012) 219 IR 128]; Steri-Flow Filtration (Aust) Pty Ltd v Erskine [2013] FWCFB 1943 (Acton SDP, Smith DP, Roe C, 24 April 2013).
[4] Harley v Rosecrest Asset Pty Ltd T/A Can Do International [2011] FWA 3922 (McCarthy DP, 21 June 2011) at para. 9; cited with approval in Pinawin T/A RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359 (Watson VP, Richards SDP, Cloghan C, 21 March 2012) at paras 28-29, [(2012) 219 IR 128].
[5] Referring to Williams v the Chuang Family Trust t/a Top Hair Design [2012] FWA 9517 [40] and Sykes v Heatley Pty Ltd t/a Heatley Sports (unreported, AIRC, Grainger C, 6 February 2006) PR914149 [20].
[7] Statement of Ms Tanya Barton at paragraph 3.
[11] Pinawin v Domingo [2012] FWAFB 1359, [30].
[17] Media Statement, Prime Minister of Australia, 29 March 2020.
Printed by authority of the Commonwealth Government Printer
Ms Rebecca Fitzgerald
TLB Assistance Pty Ltd [2020] FWC 5308
(2010) 204 IR 39
(2012) 219 IR 128
The Commission found TLB had complied with the Small Business Fair Dismissal Code, held that Ms Fitzgerald was not unfairly dismissed, and dismissed her application.
[39] On 29 January 2020, the Queensland Minister for Health and Minister for Ambulance Services made an order declaring a public health emergency for all of Queensland. On 29 March 2020, approximately a week prior to Ms Fitzgerald's trip to Hervey Bay, the Prime Minister announced that: