Fair Work Commission|2025-04-17

Ms Sasha Berra v SRBL Pty Ltd [2025] FWC 1111 (17 April 2025)

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - no valid reason - dismissal harsh, unjust and unreasonable - compensation awarded.

[1] Ms Sasha Berra (the Applicant) lodged an application for a remedy for unfair dismissal on 28 July 2024, alleging she was unfairly dismissed from her employment on 25 July 2024.

[2] SRBL Pty Ltd (the Respondent), at one point, owned four gyms trading as 'BFT'. The Applicant worked in the Respondent's gym located in Prospect, a suburb of Adelaide, and at the time her employment was terminated, Ms Berra was employed as a Head Trainer.

[3] Prior to the termination of the Applicant's employment, the Respondent had closed two of its four gyms and only two remained in operation.

[4] On 7 November 2024, Mr Steve Jadon, the Respondent's Managing Director, communicated with the Commission by email advising that the Respondent's Prospect gym was to close and 'liquidation' was set for 15 December 2024.[1] On 15 November 2024, the Applicant provided to the Commission a screenshot of an email sent by Mr Jadon, purportedly to the clients of the gym, advising that the gym would permanently closed from 7 December 2024.[2]

[5] The matter proceeded to hearing on 27 November 2024. The Applicant represented herself and gave evidence in the matter. Mr Jay Gardam, a co-worker of the Applicant, gave evidence in support of the Applicant's case. The Respondent did not attend the hearing.

[6] For the reasons set out below, I find that the Applicant's dismissal from employment was harsh, unjust and unreasonable, and compensation is ordered to be paid by the Respondent for the period following the Applicant's dismissal until the business closed on 15 December 2024, less income earned by the Applicant in the relevant period.

Procedure leading to hearing of the substantive matter

[7] The Respondent filed a Form F3 - Employer Response on 6 August 2024. The Respondent did not raise any jurisdictional objections to Ms Berra's application. Mr Steve Jadon was nominated as the Respondent's contact person in the Form F3.

[8] A directions hearing was held on 4 October 2024, where directions for the filing of material and the date for the hearing of the merits of Ms Berra's application were set. Ms Berra attended the directions hearing on her own behalf and Mr Jadon attended on behalf of the Respondent.

[9] On 15 October 2024, Ms Berra filed a Form F51 - Application for an order requiring a person to attend before the Fair Work Commission and a Form F52 - Application for an order for production of documents, records or information.

[10] A directions hearing to address Ms Berra's applications seeking orders was held on 28 October 2024. There was no attendance for the Respondent at this directions hearing, despite phone calls being made by Chambers to the Respondent's contact person. The Orders sought were made the following day.

[11] The Respondent was due to file the material on which it relied as per the directions on 5 November 2024. No materials were received by the Commission, prompting my Chambers to send an email to Mr Jadon on 7 November 2024 regarding the Respondent's non-compliance with directions and advising the Respondent that should it fail to engage with the Commission with respect to this matter, a decision may be made by the Commission adverse to the interests of the Respondent.[3]

[12] The following response was received from Mr Jadon on 7 November 2024:

"I no longer work at BFT prospect, I was just a manager at BFT prospect at the time so I will not be attending on behalf of the company.

I understand that BFT prospects official closure date/liquidation is set for the 15th of December

[13] The assertion that Mr Jadon was "just a manager" appears contradictory to correspondences Mr Jadon had with the Applicant during her employment, which are extracted later in this decision.

[14] On 8 November 2024, after conducting a company search with the Australian Securities and Investments Commission (ASIC), my Chambers sent an email to Mr Jadon that contained the following:

"An ASIC search undertaken by the Commission shows that Georgia Jadon is the current director of SRBL Pty Ltd and as such, she retains legal liability for the company.

Can you please provide contact details for Georgia Jadon?

A copy of the directions will be posted to the address listed for Georgia Jadon on the ASIC search early next week.

[15] Given the information provided by Mr Jadon about his lack of involvement in the matter going forward, on 14 November 2024 amended directions were provided to Ms Berra and Mr Jadon which allowed the Respondent a further opportunity to file their supporting material. My Chambers arranged for a copy of the amended directions to also be sent by tracked express post to Ms Georgia Jadon at the business address listed on the ASIC search.

[16] On 15 November 2024, the Applicant emailed my Chambers attaching an email sent by the Respondent to its members on the same day, advising that the business was due to close on 7 December 2024.[6] The Applicant also advised Chambers that Ms Georgia Jadon was the wife of Mr Steve Jadon.

[17] After continuing to receive copies of email correspondence between my Chambers and the Applicant, Mr Jadon sent a reply by email on 22 November 2024 and said: "This matter has nothing to do with me so the intended date you have set will not be beneficial to all parties nor will it be fair. Please contact the director of the company on this matter."[7]

[18] On 25 November 2024, my Chambers responded to Mr Jadon's email with the following:

Chambers confirms the receipt of the below correspondence in the abovematter.

Mr Jadon, from the results of the ASIC search conducted by Chambers, it appears that your wife, Mrs Jadon is the director of the Company. Chambers has sent correspondence by mail to Mrs Jadon, as the Director of the company, to ensure that the Respondent has the opportunity to respond to the application in the abovematter and provide alternative contact details to the Commission.

To date, Chambers has not received any reply correspondence from Mrs Jadon.

You also likely have contact details for Mrs Jadon that you could provide to us, but you have not done so. Chambers therefore kindly requests that you convey updated details about the time of the listed hearing to Mrs Jadon and provide Chambers with Mrs Jadon's phone number or email address.

The Respondent has been provided with the directions to progress this matter to hearing and information about the hearing by mail at the address held on the ASIC database. It has also been offered a number of opportunities to engage the in the process.

The hearing will proceed as listed and Mrs Jadon is required to attend on behalf of the Respondent. If the Respondent does not attend, findings will be made by the Commission based on the material put before it in evidence."[8]

[19] Mr Jadon then responded by providing Ms Jadon's contact details.

[20] On 25 November 2024, my Chambers received the following email from Ms Jadon:

"I am writing to you in relation to an unfair dismissal claim by Sasha Berra.

I have been advised by my husband Steve Jadon of this matter and to this date have not received any documentation relating to this. ...

Please send the documents to me via email or post and allow me the adequate time to respond to this matter and prepare.

Yes Steven Jadon is my husband but it is not his responsibility to inform me of this mater.

I need the documents relating to this claim formally sent to me in writing please."[9]

[21] On the same day, my Chambers responded as follows:

Mr Jadon has been in contact with the Fair Work Commission about this matter dating back to 22 August 2024 when he filed an Employer Response Form naming himself as the contact person for the Respondent. In doing so, he represented to the Commission that he was authorised to speak on the company's behalf. It was not until 7 November 2024 that Mr Jadon notified the Commission by email "I no longer work at BFT prospect, I was just a manager at BFT prospect at the time so I will not be attending on behalf of the company."

Following this correspondence the Commission undertook an ASIC search to identify any company directors. That is how the Commission came to understand you are in fact the Director of the Respondent company. This information was not provided by Mr Jadon nor did he offer any contact details for you. The Commission has requested that Mr Jadon provide contact details for you.

Directions were issued in this matter to prepare the matter for hearing on 4 October 2024 and sent to Mr Jadon. They were amended on 14 November 2024 when the Respondent had not complied with the directions and Mr Jadon had advised that he was no longer the contact person for the company, the Respondent was granted additional time to prepare material and participate in these proceedings. ... The Australia Post tracking service says that the correspondence was delivered on 20 November 2024.

The Commission has taken every available step to serve the relevant documents on you as the Respondent's director.

Attached are the relevant documents for your consideration in this matter, including the directions issued in the matter and the materials filed by the Applicant. You are required to attend the hearing listed at 11:00am this coming Wednesday 27 November 2024 at the Fair Work Commission, Level 6, Riverside Centre North Terrace Adelaide. If you wish to file any material in advance of the hearing, the Commission will consider the material. Otherwise, you will be given an opportunity to raise any matters during the in-person hearing."[10]

[22] Copies of all of the relevant documents to date were also provided to Ms Jadon with the above email.

[23] Ms Jadon emailed my Chambers later that night and submitted:

(a) She had not been "privy" to any of the correspondence between the Commission and Mr Jadon until the most recent correspondence;

(b) It was unfair for the Commission to assume that she had been provided with the correspondence;

(c) She was not at fault for Mr Jadon not providing her contact information;

(d) She had not been given the opportunity to respond or object to the application;

(e) She had not been given the opportunity to attend a conciliation conference;

(f) The Commission did not do "due diligence" by undertaking an ASIC search before serving the documents;

(g) She needed 7 days from 25 November 2024 to complete the Form F3 Employer Response and was entitled to a further 7 days to file a Form F3 because she had only just received the unfair dismissal application;

(h) The Form F3 previously provided was not in her name and had not been filled out by her and was "irrelevant";

(i) She could not attend the hearing listed for 27 November 2024 because of the "short notice and without the opportunity to be prepared";

(j) If the Commission did not follow the "correct and legal process" then Ms Jadon would make complaints to offices including the Commonwealth Ombudsman.[11]

[24] On 26 November 2024, my Chambers emailed the parties confirming the hearing would proceed as listed on 27 November 2024 and informing the parties that I would address the procedural issues raised by the Respondent at the hearing.[12] In order to assist Ms Jadon's attendance, my Chambers offered Ms Jadon the opportunity to attend via video, to limit any inconvenience to her, considering that she had advised the Commission that she had only just become aware of the matter.

[25] Ms Jadon reiterated in return email that she would not be attending in any capacity.[13]

[26] The hearing proceeded on 27 November 2024. Ms Berra, the Applicant, attended the hearing. Ms Jadon did not attend the hearing either in person or via video.

[27] The Commission has not received any further contact from Ms Jadon, including the filing the Form F3 that she intimated that she intended to file.

[28] At the commencement of the hearing, Ms Berra, when asked her view about adjourning the hearing to allow Ms Jadon to engage with the matter, Ms Berra pressed for the hearing to take place that day, in the absence of the Respondent. Given the history of the matter as described, and the efforts the Commission went to in order to advise the Respondent of the hearing, I determined to proceed with the hearing on that day.

[29] It is appropriate for the Commission to accept a Form F3 filed by a Respondent as containing details of the correct contact person with authority to speak on behalf of the Respondent. There is no basis in the Fair Work Commission Rules 2024 or other procedure that requires the Commission to look behind a form filed by a party and undertake other investigations, such as an ASIC search, to check the veracity of the information provided in such a form. To do so, would detract from the objects of the Fair Work Act 2009 (the Act) for the Commission to act in a manner that "is quick, informal and avoids unnecessary technicalities."[14]

[30] Further, in these circumstances, Mr Jadon had actively engaged in this matter with the Commission, responding to correspondence and attending the conciliation conference before a staff conciliator.

[31] Once Mr Jadon advised that he no longer had authority to engage with the matter on behalf of the Respondent, and failed to respond or provide contact details of any individual who could speak on behalf of the Respondent, the Commission took the additional step of identifying a director of the Respondent and serving the materials and notice of listing on Ms Jadon as the current Director.

[32] All relevant materials were served on Ms Jadon via Australia Post Express Post delivery, and the tracking service confirmed that the delivery was made to a suburb that Ms Jadon advised the Commission was now the suburb in which she lived.

[33] Importantly, after Mr Jadon advised the Commission he was no longer speaking on behalf of the Respondent, the Commission took necessary steps to identify a director of the Respondent and made contact with that person. The correct party was contacted and provided with additional time to participate in the proceeding.

[34] Considering all of the circumstances as described, including the willingness of the Commission to address the issues raised by the Respondent at the hearing on 27 November 2024 and allowing the Respondent to attend via video and not in person, appropriate steps were taken to offer the Respondent an opportunity to participate in the hearing. The Respondent was on notice that should they not attend the hearing, then a decision may be made in their absence.

[35] As the Respondent did not take part in the hearing, the evidence of the Applicant was uncontested.

[36] Ms Berra was employed by the Respondent from approximately November or December 2020 until the termination of her employment on 25 July 2024. Her role changed over time from Trainer to Head Trainer and her role included running group fitness classes, cleaning and maintaining gym equipment, member engagement and retention, attracting new members, and engaging in social media and communications to members.

[37] It is the Applicant's evidence that the Respondent owned and operated their gyms at four locations - Prospect, Modbury, Kent Town and Para Hills. Ms Berra told the Commission that two of the locations, Kent Town and Para Hills, had closed because the "businesses failed".[15]

[38] Ms Berra gave evidence that the Respondent emailed its members on 15 November 2024 advising that the Prospect gym, at which the Applicant worked, was also permanently closing from 7 December 2024.

[39] Ms Berra's evidence as that until July 2024, her employment with the Respondent had, in the main, been positive and her efforts had been recognised with a promotion and pay rise in April 2024.[16]

[40] The Applicant's evidence was that on 17 April 2024, she alerted Mr Jadon that her superannuation contributions were "lacking" and asked him to "look into it".[17]

[41] The Applicant and Mr Gardam attended a team meeting with Mr Jadon on 11 July 2024. Mr Gardam's evidence was that Mr Jadon informed the employees present that BFT Para Hills was closing and staff would be re-allocated to the two remaining gyms, which would cause a reduction in hours overall. However, Mr Gardam said that "[Ms Berra] and I were reassured that our hours would remain unaffected."[18]

[42] On 18 July 2024, Ms Berra noticed that her usual Tuesday shift was not on the following week's roster and queried the removal of the shift by sending a text message to Mr Jadon. Mr Jadon then told the Applicant by reply text message that her hours had been reduced and that he would discuss it with her following another team meeting that was to take place later that day.

[43] At the team meeting, the Applicant said that Mr Jadon unexpectedly raised issues with her about seeing her on CCTV footage, during working hours searching for information on the internet about restaurants. The Applicant admitted that she had done so, but was upset because she "had always done everything for that place ... had gone above and beyond, after hours" and that only "took a five or ten minute breather because [she had] done everything [she] needed to do."[19]

[44] Despite the discussion about Ms Berra using the internet for personal use at work, Ms Berra recounts that Mr Jadon agreed to restore the Tuesday shift he had removed from her roster. Ms Berra confirmed this with Mr Jadon by email after the meeting when she said: "Thank you for amending my shift next week, I just wanted to confirm if I still have my usual Tuesday shift?"[20] and Mr Jadon responded: "Yes I'll be amending it as soon as I finish this next meeting you'll be back on Tuesday also."[21]

[45] Ms Berra understood the matters concerning her shift change and the personal use of the internet at work had been resolved at the meeting of 18 July 2024.

[46] On 23 July 2024, Mr Jadon sent an email to Ms Berra advising that "we have changed the roster up slightly next week to accommodate all staff ... we have decided to share the load to ensure all staff are happy until we get the gym back to where it needs to be."[22]

[47] Ms Berra responded by email on the same day. In the email, amongst raising concerns about the proposed changes to the roster, she said: "I need to know if I can't be guaranteed my hours anymore which have not changed within 4 years up until now."[23]

[48] Mr Jadon responded by email explaining the reasons for the roster changes which included giving additional hours to another employee who had undertaken work outside of their rostered hours to assist with developing slideshows for the business. Mr Jadon said: "I have decided to do right by someone who has done right by the business throughout these times and give him the necessary time within hours to accomplish tasks to the best of his ability."[24]

[49] Ms Berra responded again on the same day by email: "Unfortunately all I've taken from that is what I've done over the last 4 years for prospect goes unrecognised and unnoticed."[25]

[50] Mr Jadon responded, also on 23 July 2024: "[Ms Berra] I am your employer, I have made a calculated decision for my business that best suits my business to ensure the longevity of my business. Your rebuttals, demands and lack of respect for my decisions is an uncomfortable sign for me. I'd like you to please take tomorrow to think about whether or not you would like to stay with us at BFT prospect as the lack of respect is very high and it should not be this way."[26]

[51] On 25 July 2024, Mr Jadon emailed the Applicant and said: "With the new changes at BFT prospect there will be a new roster in place from the 5th of august onwards. Just touching base to see which mornings and afternoons you can do so I can ensure you have your hours locked in each week."[27]

[52] After this email was sent, Mr Jadon emailed members of the gym advising that, effective of 5 August 2024, the 12:15pm group fitness class on a Tuesday, usually conducted by Ms Berra, was to be temporarily removed from the schedule. Ms Berra received the emails sent to members. When she saw this email, Ms Berra says she had not been consulted or advised of this change and any impact it would have on her work hours.[28]

[53] Ms Berra responded to Mr Jadon's email noting: "As you are very well aware, my availability is not only documented on deputy [an internal database] but also within my contract and has remain unchanged for the last four years of my employment."[29] Ms Berra then asked for a copy of her employment contract.

[54] Mr Jadon then said to Ms Berra by responding email:

"Does this mean you will not be taking any hours outside of the hours you have requested in deputy? I need email confirmation of this and I will need to proceed with the next steps as due to your availability you may not get any hours within the business which means we may then need to look at an alternative solution to finalise your employment."[30]

[55] Mr Jadon then later sent some extracts by photo of the Applicant's contract of employment and noted:

"I sent you this page specifically due to your queries regarding your hours as in your contract it does not specify certain special hours within the normal working hours. This page also specifies that you shall agree to any changes within the roster with reasonable notice. This business is set to change due to the current climate, due to changes the business does not owe you anything. We would love for you to stay in the company but due to your personal life your (sic) unable to, this is unfortunate but again due to changes we are unable to accommodate to your lifestyle outside of the 5am - 8pm requirements as written in your contract."[31]

[56] Ms Berra says that she understood the reference to her personal life to be her responsibility as primary carer for two young children.[32]

[57] Ms Berra responded, again on 25 July 2024, setting out that she did not accept communications conducted in the workplace social media group chat was sufficient to provide reasonable notice to her of any roster change. Ms Berra also made clear that it was her view a consultation process was required before making changes to the roster, and that any changes needed to be formally agreed with an affected employee and then confirmed in writing. Ms Berra then advised Mr Jadon when she was available to work and that she "assumed" a three hour morning shift would be included in any future rostering arrangements, considering the classes she usually taught and requirements for a minimum three hour engagement when attending for work.

[58] Mr Jadon then responded by telling the Applicant that she was "not understanding" the wording in the employment contract and that she should get legal advice. He then sent a further email at 9:40pm on the same day, saying: "we have video surveillance ... that I wanted to show you in our last meeting, as it got emotional, I refrained from showing you ... the major misconduct. I want to again remind you of our caring and nurturing nature, one major one is the structure of your hours as we structured your hours around your personal lifestyle."[33] Mr Jadon then referenced what he purported to be a clause in the Applicant's contract of employment which said: "The company may terminate your employment immediately and without notice if you engage in serious misconduct. Serious misconduct includes ... a serious breach of the terms of this contract ... [or] a serious breach of the companies (sic) policies and procedures."[34]

[59] Ms Berra then sent a further email at 10:03pm on the same evening containing a number of statements, includig the following:

(a) That Mr Jadon ought to have shown her the footage he was referring to because she has "nothing to hide";

(b) She had stayed working for the business even after she had been "lied to ... ignored ... and not paid correctly";

(c) Ms Berra had conducted "numerous hours of unpaid work ... that you did not and will not ever acknowledge because you do not have enough respect and empathy to do so";

(d) She rejected the assertion that she had engaged in serious misconduct and "will not stand by and listen to something so pathetic";

(e) "Your business is failing for no other reason than how it has been cared for by ownership and that is a simple fact. Not because I googled a few restaurants";

(f) That the Respondent had "no care for your staff and their wellbeing just finger pointing and blaming when it suits you"; and

(g) That she had nothing more to say to the Respondent until her rostered hours for the coming roster period were resolved.[35]

[60] At 10:05pm, Mr Jadon sent a further email which said: "We will be executing our rights by the employment contract ... Instant dismissal. I will no longer engage in anymore back and forth with you; if you would like to take this further please engage a lawyer and or fair work regarding your issues. Can you please ensure your belongings are picked up tomorrow at 2pm from BFT prospect (after staff and members have left the premises) once the gym is locked can you please slide the key under the door."[36]

[61] Mr Jadon, again emailed the Applicant at 10:13pm and said "Anything further can be dealt with by a lawyer. ... Two videos from separate days. One of the days 15/7/2024 you spent 50 minutes looking up restaurants and other things."[37]

[62] Ms Berra sent a further email on the night of 25 July 2024, informing the Respondent she intended to make a claim for a breach of the general protections part of the Act.

[63] On 26 July 2024, Ms Berra emailed the Respondent asking for a copy of her employment contract and the Respondent's policies regarding the use of work computers and video surveillance. Ms Berra also set out for the Respondent her claims in respect of "unpaid and underpaid entitlements" and advised Mr Jadon she was considering either a general protections or an unfair dismissal claim. In her email, Ms Berra also says: "My preference is to remain employed by BFT and engaged on my regular rostered hours. Please advise me by close of business today if you intend to reinstate me and reinstate my regular rostered hours."[38] She then proceeded to set out how she would progress her causes of action to address the conduct complained of above if she were not reinstated.

[64] The Applicant filed her unfair dismissal claim on 28 July 2024.

[65] On 29 July 2024, Mr Jadon sent an email to Ms Berra saying: "I would like to let you know we still stand by our decision to terminate your employment. Mutually."[39] However, Mr Jadon then says that the termination was because the business could not keep Ms Berra as her "personal lifestyle doesn't suit our new business hours and unfortunately we cannot structure the business to suit your needs at this time."[40] He then offered Ms Berra shifts between 5:00am and 10:30am or 4:00pm - 8:00pm on Monday to Friday, or 6:00am - 9:30am Saturday and said: "If you can work the above shifts, we will accommodate to your needs."[41]

[66] Ms Berra told the Commission in her oral evidence that the Respondent was aware that she was unable to work early morning and evening shifts on account of her family responsibilities.

[67] In the email of 29 July 2024, Mr Jadon also said: "We should've given you the written warnings that were deserved but unfortunately we didn't follow protocol correctly" and "We are happy to settle this the right way and pay you for the 6 weeks notice as stated in your contract. We could pay you the 6 weeks in fortnightly payments".[42]

[68] When Ms Berra responded advising the Respondent that she had filed her unfair dismissal claim and intended to address her complaint through the Commission process, Mr Jadon responded again referencing what he described as the "aggressive behaviour" of the Applicant towards him that led him to "rush" the termination email.[43] Mr Jadon also noted that he felt "uncomfortable" meeting or talking face to face with Ms Berra and "I don't need to feel like that in my own business. ... I leave very stressed and disappointed every time."[44]

[69] The Respondent filed its Form F3 Response on 6 August 2024. In its Response, the Respondent said that after Ms Berra refused to accept a change to her work arrangements on account of the business adopting new business hours, Ms Berra "attacked us via email" and that she "could clearly see that unfortunately the business was not able to keep her on so she decided to attack us instead."[45]

[70] Mr Jadon, who wrote his name in the section titled 'signature' and referred to himself as 'manager', also wrote:

"She is holding on to an email that was sent on my behalf claiming we are dismissing her on certain clauses in the contract but in fact the beginning of the email clearly states the reason why we may no longer need her if she cannot work the new rostered hours within the business due to change of business hours."[46]

[71] Section 385 of the Act sets out what constitutes an unfair dismissal:

A person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

[72] Section 385 subsections (c) and (d) have no application in this matter.

[73] Ms Berra was dismissed by the Respondent when she was notified in writing on 25 July 2024 of the termination of her employment. I do not accept the assertion in Mr Jadon's email of 29 July 2024 that the termination of Ms Berra's employment was somehow mutually agreed. The words used by Mr Jadon on 25 July 2024 that he was 'executing' his right under Ms Berra's contract of employment to dismiss her instantly shows a clear intention on the part of the Respondent to dismiss Ms Berra from her employment. Her objections to the dismissal and her almost immediate notification that she intended to commence an action in this Commission to dispute the dismissal are inconsistent with a mutual agreement to end Ms Berra's employment.

[74] Ms Berra's employment was terminated on the initiative of her employer, the Respondent, and therefore meets the meaning of 'dismissed' under section 386(1)(a) of the Act.

[75] The Act sets out the matters I must take into account when then considering if the dismissal of an applicant is harsh, unjust or unreasonable. Section 387 specifies:

"387 Criteria for considering harshness etc.

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."

Whether there was a valid reason for the dismissal

[76] In order to be a valid reason, the reason for the dismissal should be "sound, defensible, or well founded" and should not be "capricious, fanciful, spiteful or prejudiced".[47] 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.[48]

[77] Ms Berra was terminated from her employment with the Respondent after the exchange of a series of emails on the evening of 25 July 2024. Prior to that date, a dispute was emerging between the Applicant and the Respondent about significant changes to Ms Berra's pattern of shifts from what she says was an established pattern of work over a four year period. The Respondent made changes to the Applicant's roster and she objected not only to the changes, that she says did not take into account her family responsibilities, but also the inconsistent communication about whether any changes would be made to her shifts, a lack of consultation about the proposed changes and the way in which the changes were ultimately communicated to her.

[78] On 18 July 2024, the Respondent raised with the Applicant, at least in a passing fashion, a concern about the Applicant's personal use of the internet during her paid work time. There is no evidence that the Respondent pursued the matter with the Applicant, presented her with allegations to address or otherwise counselled her, or took disciplinary action against her when the issue was first raised. The Applicant had formed the view after the matter was discussed on 18 July 2024 that it was resolved.

[79] The email correspondence between Ms Berra and Mr Jadon on 25 July 2024 became increasingly heated. Mr Jadon was not present to give evidence at the hearing, but it appeared from his written communication with Ms Berra that he was at the very least annoyed and frustrated at what he saw as Ms Berra questioning the decision he had made to change the shifts being offered to employees. This was evident in statements made by Mr Jadon about making calculated decisions that best suited his business and drawing attention on more than one occasion to the lack of respect being shown by the Applicant in questioning his decisions.

[80] In the course of the email exchanges on the evening of 25 July 2024, which were primarily about Ms Berra's complaints regarding the roster changes, Mr Jadon then pivoted, somewhat out of context, to refer to video surveillance held by the Respondent of what he termed "major misconduct" committed by the Applicant. The words "We have video surveillance of this misconduct" were highlighted in red in the email.[49]

[81] Mr Jadon, also in the email of 25 July 2024 at 9:40pm, extracted clauses from what he appears to assert is the Applicant's contract of employment[50] referring to termination without notice for serious misconduct, using work computers for only work-related purposes and the Applicant's purported contractual agreements to comply with company policies, undertake duties to the best of her ability, comply with directions and act in the best interests of the Respondent.

[82] The Respondent did not specify what the alleged major misconduct was in the email to the Applicant. No allegations were put or any details of the alleged conduct set out for the Applicant.

[83] In her email to Mr Jadon of 10:03pm on 25 July 2024, Ms Berra made a number of inflammatory comments about Mr Jadon showing her a lack of respect and empathy, asserting that she had been lied to and ignored, assumedly by Mr Jadon, and that the 'business was failing' because of management's lack of care. She also said that Mr Jadon showed no care for his staff and sought to blame his employees when things went wrong. In my view, Ms Berra's communication to Mr Jadon was overly direct and disrespectful.

[84] It was evident from the escalating terseness of the correspondence that the relationship between the Applicant and the Respondent had significantly deteriorated by the evening of 25 July 2024.

[85] When Mr Jadon emailed the Applicant to advise of her immediate termination at 10:05pm, he did not provide a reason for the termination. In his subsequent emails, set out above, Mr Jadon referenced the Applicant's aggressive behaviour and his feeling of uncomfortableness at having to speak to or meet with the Applicant regarding her employment. In the Respondent's Form F3, Mr Jadon advised the Commission that the reasons for the dismissal were that the Applicant could not work within the Respondent's new business hours and that the Applicant "attacked" the Respondent via email.[51]

[86] In the absence of the Respondent giving evidence it is difficult to ascertain the reason for the termination of Ms Berra's employment at the time she was dismissed.

[87] A theme consistent in the correspondence between the parties is the Applicant's concern about the removal of her Tuesday class and its impact on her work, and the Respondent defending its decision to change the work arrangements to take into account another employee who had assisted the business with some recent unpaid work.

[88] However, I can find no evidence that the Respondent clearly set out for the Applicant what the 'new business hours' were that were to be adopted, what the effect there would be on her hours after removing the Tuesday group fitness class from the schedule or that it consulted with the Applicant about the proposed significant change to her roster arrangements. The only steps taken by the Respondent to discuss the matter with Ms Berra appear on the evidence to be after she had seen a roster with altered hours, asked for the roster to be changed back to the usual arrangements and was then asked to confirm her availability for work. The scope of the proposed change and the effect on Ms Berra was not raised with her.

[89] If the reason for termination was the Applicant's inability to work within the Respondent's new business hours, it is not a valid reason for termination. The Respondent had not set out for the Applicant what the new business hours were so that she could ascertain if she was able to work those hours. The Applicant re-stated her availability for work on the Respondent's request, but was not told of the new hours and asked to consider if she could make alternative arrangements to be able to accept the hours that were to be offered by the Respondent. The Respondent could not have had the relevant information about the Applicant's availability for work at the time of making the decision to dismiss her on account of unavailability because they had not informed her of the new shifts that were available in any detail or properly asked her if she could work the new shifts to be offered.

[90] It appears that the 'aggressive conduct' referred to by the Respondent in their response was likely to have been conduct that occurred prior to Ms Berra's disrespectful email communication at 10:03pm on 25 July 2024. I say this because Ms Berra sent her email containing the disrespectful and inflammatory comments at 10:03pm and Mr Jadon responded at 10:05pm noting "you sent me an email at the same time" and notifying of the decision to instantly dismiss Ms Berra. It is unlikely that Mr Jadon had adequate time to read and understand Ms Berra's email of 10:03pm and rely on the email of 10:03pm as a basis to terminate the Applicant's employment by return email sent at 10:05pm.

[91] The email correspondence from the Applicant prior to 10:03pm on 25 July 2024 was firm and direct, but not of a nature that could be said to be misconduct. In fact, the emails sent before 10:03pm on 25 July 2024 were primarily focused on Ms Berra seeking to uphold her rights and entitlements at work.

[92] In any event, the disrespectful nature of the email correspondence sent by Ms Berra was not serious enough to warrant the termination of her employment. It was sent in a context where the parties were firing off emails to each other over the course of an evening and the emails were becoming increasingly direct and curt from both the Applicant and the Respondent.

[93] If the alleged misconduct was the reason for the Applicant's dismissal there was no process applied that identified the conduct and allowed Ms Berra to respond to the allegations. The nature of the misconduct raised by the Respondent in an email to the Applicant on 25 July 2024 was not clearly set out, but given the reference to video surveillance, the Applicant was left to assume that it was the matter of using work time and computers to search restaurants as addressed with her the previous week. A later email of 10:13pm on 25 July 2024, following the Applicant's dismissal being communicated to her, referred to "[t]wo videos from separate days" and "50 minutes" being spent looking up "restaurants and other things".[52]

[94] However, on the evidence before me, it appears that despite raising alleged misconduct in the email correspondence of 25 July 2024, the Respondent did not assert misconduct as the reason for dismissal. If I am incorrect in that understanding, and the Applicant's suspicions about the nature of the misconduct are correct, considering the overall circumstances of the matter, a limited amount of personal internet use during work time and on a work computer would not constitute a valid reason for dismissal.

[95] Given that no clear reason for the dismissal can be identified at the time the Respondent determined to dismiss Ms Berra, and the Respondent did not attend to give evidence regarding the reason for dismissal, there is no valid reason for the termination of Ms Berra's employment. I have considered each of the possible reasons for termination that can be identified on the available evidence and have determined that none of those reasons are, in any event, valid reasons for dismissal.

[96] Proper consideration of s.387(b) of the Act 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).[53]

[97] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate,[54] in explicit,[55] plain and clear terms.[56]

[98] No clear, valid reason for Ms Berra's termination was communicated to her before, or upon, the decision being made to dismiss her from employment. Consequently, it has proven difficult to identify a reason, valid or otherwise, for the dismissal.

Whether the person was given an opportunity to respond

[99] No process was afforded to the Applicant that allowed her an opportunity to respond to any proposed termination of her employment.

[100] The email correspondence communicating Ms Berra's dismissal notified her of her 'instant dismissal' and the Respondent's view that it had a right to terminate her employment immediately pursuant to the contract of employment.

[101] The Respondent engaged in further correspondence with the Applicant after her dismissal but at no stage was Ms Berra notified of a proposed reason for her termination and allowed an opportunity to respond before the decision was made to terminate her employment.

Any unreasonable refusal by the employer to allow the person to have a support person

[102] Given there was no meeting or process to discuss a proposed termination, this consideration is not relevant to this matter.

Any impact on procedures arising from the size of the Respondent's enterprise and absence of human resource expertise

[103] Whilst there was obviously no evidence about this submitted by the Respondent, it was evident to me on the material submitted by the Respondent that they operate a small enterprise and it did not appear that the Respondent sought assistance from someone with human resources expertise in managing the circumstances the led to Ms Berra's termination.

[104] In the absence of evidence or submissions on this consideration from the Respondent, I am not able to give it any weight in my decision.

Whether the dismissal was harsh, unjust and unreasonable

[105] After considering the matters to which I am to have regard under section 387 of the Act, I find that Ms Berra's dismissal was harsh, unjust and unreasonable.

[106] Ms Berra raised valid concerns and complaints with respect to changes to her roster about which she had not been consulted and that had significant impacts on her family responsibilities.

[107] The nature and tone of the Respondent's correspondence with the Applicant regarding her complaints conveyed annoyance and frustration about what the Respondent described as "rebuttals, demands and lack of respect for [its] decisions."[57]

[108] Following a number of increasingly curt emails between the parties on 25 July 2024, the Respondent moved to instantly terminate the Applicant's employment without providing a clear reason for doing so and in the absence of any reasons being put to the Applicant for response before a decision was made.

[109] In determining whether to order a remedy for this dismissal which I have found to be unfair, it is necessary that I address the elements of section 390 of the Act.

"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).

(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."

[111] I consider it appropriate to order a remedy.

[112] The evidence before me is that the Respondent is no longer operating the business in which the Applicant was employed. Ms Berra also submitted that "given the time that has now lapsed, I do not consider it to be reasonable for me to return to the business."[58] For these reasons, reinstatement is not appropriate.

[113] I must now consider whether an order for compensation is appropriate under s.390(3)(b) of the Act. The Full Bench in Vennix v Mayfield Childcare Limited[59] noted that the question of whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one, and whether an applicant has suffered a financial loss may be a relevant consideration.[60]

[114] I am satisfied that Ms Berra has suffered financial loss as a consequence of the unfair dismissal, and I consider that I ought to exercise discretion to order a remedy in the form of compensation as provided by the Act.

[115] In Sprigg v Paul Licensed Festival Supermarket (Sprigg),[61] the Full Bench set out the approach to assessing compensation in unfair dismissal matters which has since been applied under the current Act.[62] The Sprigg formula can be summarised as follows:

Estimate the renumeration the employee would have received, or would have been likely to receive, if the employer had not terminated the employment;

Deduct monies earned since the termination. The failure to mitigate loss may lead to a reduction in the amount of compensation ordered;

Discount the remaining amount for contingencies;

Calculate the impact of taxation to ensure the employee receives the actual amount he or she would have received if they had continued in their employment;

[116] Any amount provisionally arrived at by application of these steps is subject to whether weight is given to other circumstances that may lead to offsetting of compensation,[63] including those that now must be taken into account by the operation of section 392 of the Act.

[117] The overall consideration is that the level of compensation must nevertheless be appropriate (that is, neither clearly excessive nor clearly inadequate) having regard to all the circumstances of the case.[64]

[118] The specific criteria listed in section 392 of the Act provides as follows:

(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."

[119] The Full Bench in Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe[65], stated that in quantifying compensation, it is necessary to set out with some precision the way in which the various matters required to be taken into account under s.392(2) and the steps in the Sprigg formula, have been assessed and quantified.[66]

[120] As the Respondent did not attend the hearing, they made no submission regarding the impact of any compensation awarded on the viability of its business.

[121] The viability of the Respondent's business has been in issue throughout the proceedings before the Commission.

[122] The first indication the Commission received from the Respondent that the Respondent business was experiencing financial difficulties was in the Form F3.[67] It was stated that, the Respondent had "multiple gyms across Adelaide that are all struggling due to the current climate with one of our standing BFTs closing last month, in order to ensure the longevity of BFT prospect where [Ms Berra] worked we took the necessary step of cancelling the mid day 12.15pm class by doing this we are able to reduce 30 hours a fortnight in costs."[68]

[123] The Applicant noted in her submissions: "Due to the business beginning to fail, the employer had stopped paying superannuation on time, isn't replacing gym equipment and stated ... that he (Steve) intends to liquidate the business."[69]

[124] At the initial directions hearing on 4 October 2024, the Respondent indicated that it was possible that the business would soon be winding up.

[125] On 7 November 2024, the Commission was notified by Mr Jadon in an email that the business was set to close on 15 December 2024.[70]

[126] Despite the evidence of a general nature about the overall viability of the Respondent's business, as the Respondent did not participate in the hearing, I have no direct evidence about the impact of any compensation ordered in this matter on the viability of the business. In the absence of any evidence, I am unable to find that compensation to be awarded to the Applicant should be reduced to take account of any impact on the viability of the Respondent's business.

[127] The Applicant was employed by the Respondent for just over three and a half years. Neither party provided an accurate commencement date, but the Applicant submitted that she was first engaged by the Respondent in November or December 2020.

[128] The Applicant is neither an overly short or long-term employee and as such, this consideration has no bearing on any compensation to be ordered.

Ms Sasha Berra v SRBL Pty Ltd [2025] FWC 1111

At a glance

Court

Decision date

Source

Judgment (285 paragraphs)

Ms Sasha Berra v SRBL Pty Ltd [2025] FWC 1111 (17 April 2025)

Parties

Legislation Cited (2)

Cases Cited (4)