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[2026] FWC 897
General information, not legal advice.
Fair Work Commission
2026-03-30
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Application for an unfair dismissal remedy - whether valid reason related to performance - whether employee given opportunity to respond to reason for termination - whether dismissal unfair
[1] Ms. Zahro Safitri (applicant) has applied under s. 394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy. Ms. Safitri was employed by International Capital Markets Pty Ltd (respondent) in the position of Customer Support Executive from early 2022 until her dismissal on 16 October 2025. Ms. Safitri was dismissed for alleged ongoing performance issues. Ms. Safitri maintains that her dismissal was harsh, unjust or unreasonable and seeks financial compensation as a remedy.
[2] The respondent opposes the application and says that there was a valid reason for the termination of the applicant's employment and that the applicant was accorded procedural fairness at the time her employment was brought to an end.
[3] Section 390 of the Act provides that the Commission may order a person's reinstatement or the payment of compensation to a person if satisfied the person was protected from unfair dismissal at the time of the dismissal and the person has been unfairly dismissed. Section 382 provides that a person is protected from unfair dismissal if the person is an employee who has completed the minimum employment period and the person is covered by a modern award, an enterprise agreement applies to the person, or the person earns less than the high-income threshold. It was not in issue, and I have concluded here that the applicant is protected from unfair dismissal for the purposes of s.382.
[4] Section 385 provides that a person has been unfairly dismissed if the Commission is satisfied of four matters: the person has been dismissed, the dismissal was harsh, unjust or unreasonable, the dismissal was not consistent with the Small Business Fair Dismissal Code (Code) and the dismissal was not a case of genuine redundancy. It was not contested, and I am satisfied that, the applicant was dismissed, that the respondent was not a small business employer as defined and so the Code has no application and that the dismissal was not a case of genuine redundancy. The issue for determination is whether the dismissal was harsh, unjust or unreasonable. In deciding that question, the Commission is required to have regard to the matters in s.387 which provides as follows:
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
Note: For the purposes of paragraph (a), the following conduct can amount to a valid reason for the dismissal:
(a) the person sexually harasses another person; and
(b) the person does so in connection with the person's employment.
[5] The applicant's duties in the position of Customer Support Executive included addressing client support enquiries via email, live chat, telephone and social media, and answering clients' technical queries relating to the respondent's trading platforms.
[6] The respondent contended that the applicant had ongoing performance issues over the course of her employment. The applicant's employment was terminated summarily on 16 October 2025 at a meeting with Ms. Koullinos, the respondent's Head of Human Resources and Mr. Mullins, the applicant's manager. The applicant was provided with a written notice of termination at that meeting. The notice provided in part:
This decision has been made due to ongoing concerns regarding your performance, including:
On the 20th of August 2025 you met with Carter Mullins and Constance Koullinos. In that meeting you were advised that there was an ongoing concern regarding your punctuality and communication. During the conversation, you were advised of your existing two Warning Letters that were issued to you on the 3rd of January 2024 and the 13th of March 2024. Both those warning letters outlined issues with punctuality, communication and performance, that were pre-existing and ongoing.
You were previously issued formal warnings and given opportunities to improve, including consistent weekly trainings with Carter Mullins. Unfortunately, there has been insufficient improvement.
We consider that your conduct and performance remain unsatisfactory and have decided to terminate your employment for the following reasons:
[7] Much of the background to the termination was uncontentious. On 3 January 2024 the applicant was issued with a formal written warning from the respondent. The notice referred to a consistent issue with the applicant's punctuality and a failure to inform managers of attendance times. The warning letter bears the applicant's signature and states that a copy of the document would be placed on the applicant's file. The notice said that continued disregard of attendance requirements or failure to address concerns may result in further disciplinary action up to and including termination of employment.
[8] In late January 2024 the applicant was placed on a formal performance improvement plan (PIP). The PIP was to run for a period of three months, following which there was to be a review on any further action required. Amongst other things, the PIP identified issues with communication between the applicant and her managers/supervisors regarding lateness, breaks and leave and the need for the applicant to improve on punctuality. The PIP identified possible consequences of inaction for the applicant as including termination of employment.
[10] There was a meeting with the applicant, Ms. Koullinos and Mr. Mullins on 20 August 2025. The meeting was in part a disciplinary meeting to discuss ongoing concerns with the applicant's punctuality and failure to communicate absences, and partly to discuss a forthcoming university placement. Ms. Koullinos gave evidence that the applicant had been consistently unavailable to clients and co-workers during her shifts and that the applicant had to be prompted by her manager to log in online to check emails, meeting requests and client calls. The meeting was held to discuss this problem. Ms. Koullinos said the respondent also became aware at this meeting that the applicant had been attending a university class on Friday mornings without the respondent's knowledge or approval when she should have been working from home and that this had contributed to the applicant's lack of availability during her shifts on those days. I accept that evidence. The respondent proposed that the applicant take a half day of annual leave on Friday mornings to allow for ongoing attendance at these classes. The proposed university placement was also discussed. After the meeting, an email was sent from Ms. Koullinos to the applicant, dated 26 August 2025, which summarised what was discussed at the meeting.
[11] The respondent also said that the applicant's performance had not improved after the meeting on 20 August 2025 despite the fact that additional training had been provided to the applicant and others in her team.
[12] In cross-examination, the applicant said that between the meeting on 20 August 2025 and her dismissal on 16 October 2025 there were no formal discussions about her performance. She acknowledged that there may have been instances of lateness in that period, but that punctuality was an issue across the whole team. She argued that her issues with punctuality improved following the meeting of 20 August 2025 and prior to her dismissal.
[13] The applicant denied that there were any issues with her work performance and claimed that she was excelling in her role, having been consistently awarded the "Star Agent" bonus for her customer calls in most months of 2024 and in March, April and May of 2025, and received a pay rise in March 2025. The respondent claimed that the "Star Agent" bonus was awarded to a majority of staff in the applicant's team and was given as an incentive rather than in recognition of exceptional performance. Additionally, the respondent claimed that the salary increase referred to was "modest" and "not performance based but effectively kept her in the same financial position as when she commenced her employment."
[14] The applicant claimed that she was not provided with any formal training or structured performance improvement processes during 2025. The applicant said that the training sessions referred to were undertaken by multiple team members and were not remedial performance management exercises directed at the applicant specifically. I accept the applicant's evidence on this point. The applicant also gave evidence that Mr. Mullins had told her that he would find someone to replace the applicant if she went ahead with the university placement and maintained that the operative reason for the termination of her employment was the fact that she had enrolled in a university course and required extended leave to attend a placement as part of her course. The applicant pointed to the fact that the termination took effect only a matter of one business day before the placement started. The respondent claimed that the applicant's advice to them that the placement would commence on 20 October until 9 October 2025 was symptomatic of the applicant's failure to give adequate notice of absences. However, I accept the applicant's evidence that she had sought confirmation of the commencement date, but this had not been forthcoming. I am also of the view that there is insufficient evidence to conclude that the applicant was dismissed because of her proposed participation in a university placement.
[15] Additionally, the respondent relied on various communications between the applicant and a more senior staff member whom the respondent said was the applicant's acting supervisor, on the platform Slack from 9 June 2025 to 3 October 2025. The messages raise issues with the applicant's punctuality, communication with clients, and engaging with past messages and general updates. The applicant maintained that these were informal exchanges with someone who was her friend and were not disciplinary in nature.
Section 387(b) - Whether the applicant was notified of the reason
[17] The applicant's employment was terminated at the meeting of the 16 October 2025 which was held to discuss the applicant's employment with the respondent. The letter of termination issued to the applicant on that day cites the reasons for the applicant's dismissal. On that basis, I am satisfied that the reasons for the applicant's dismissal were conveyed to the applicant on 16 October 2025.
Section 387(c) - Whether the applicant was given an opportunity to respond to any reason related to capacity or conduct
Section 387(d) - Any unreasonable refusal by the employer to have a support person present to assist in any discussion relating to dismissal
[19] The applicant was invited to, and did, bring a support person to the meeting on 16 October 2025. During cross examination, the applicant took issue with the fact that her support person was advised that he would not be able to talk during the meeting. There was clearly no unreasonable refusal to allow a support person to be present but the consideration is whether there was any unreasonable refusal to have a support person present for a specific purpose, namely, to assist with any discussion relating to dismissal. The meeting invitation from the respondent indicated that the support person could assist the applicant but not advocate on her behalf. I am not satisfied that the support person was unable to assist during the discussions. I conclude that there was no relevant unreasonable refusal in relation to the presence of a support person for the purpose specified.
Section 387(e) - If the dismissal related to unsatisfactory performance, whether the applicant had been warned about that unsatisfactory performance prior to the dismissal
Section 387(f) and (g) Size of the employer's enterprise/absence of human resources expertise and the impact on procedures followed in effecting the dismissal
[21] The respondent is a medium-sized enterprise with a workforce of approximately 32 people within its Australian operation. Ms. Koullinos is the sole person responsible for employment-related matters. Ms. Koullinos did not make the decision to terminate the applicant's employment. That decision was made by others within the respondent, none of whom gave evidence. I am of the view that the limited human resources capacity of the respondent had some impact on the procedures followed to effect the dismissal. It is likely that a better-resourced enterprise would have adopted a more structured and formalised performance management approach following the meeting with the applicant on 20 August 2025.
[22] I have taken into account the period of the applicant's employment with the respondent of almost 4 years. This is a reasonably lengthy period of service. The applicant's work history includes at least one formal written warning prior to events leading to the termination of employment and the implementation of a performance improvement plan, although these occurred some time ago. Her work performance history is not unblemished although there was no suggestion of misconduct on the applicant's part over the term of her employment. I note that the applicant did receive some bonus payments although the respondent downplayed the significance of these. I regard these as being of limited assistance in the overall assessment.
[23] I also take into account the fact that some of the performance-related issues arose as far back as 2024 and beyond the meeting in August 2025, there were no recent performance issues raised with the applicant in a formal setting which would have indicated to the applicant that her ongoing employment was in jeopardy. Summary termination just prior to an unpaid university placement in those circumstances worked harshly against the applicant.
It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.[7]
[25] Taking all of the above matters into account, I am satisfied that the dismissal of the applicant was harsh and unreasonable. Even though there was a valid reason for the termination, the processes that were adopted were deficient. The applicant was not given a reasonable opportunity to give her response before the decision was made and the dismissal effected and the dismissal occurred at a time when the respondent was aware the applicant was about to commence an unpaid university placement. I conclude that the applicant was unfairly dismissed for the purposes of s.385 of the Act.
[26] The applicant did not seek reinstatement. I accept that reinstatement is not an appropriate remedy in this case and consider that it is appropriate to make an order for the payment of compensation. In order to determine the amount of compensation to be paid I am required to have regard to the matters set out in s.392 of the Act and I have considered each of those matters. There was no evidence that an order would have an impact on the viability of the respondent's business and I would make no deduction from the amount of compensation on that account. The applicant had been employed with the respondent since at least early 2022 which is a reasonably lengthy period.
[27] In determining the remuneration that the applicant would have received or would have been likely to receive if she had not been dismissed, I take into account the fact that the applicant had been the subject of previous verbal and written warnings about performance and punctuality. I am of the view that, even if the applicant had been formally counselled and provided with an opportunity to respond and improve performance, there was a real likelihood that the work issues would have been repeated and the applicant's employment would not have endured for an extended period beyond the date of her termination. I think it is unlikely that the applicant would have remained in the employment of the respondent beyond a further eight weeks had her employment not been terminated when it was.
[28] The applicant provided evidence of her attempt to mitigate her loss by seeking alternative employment and I am satisfied that such efforts were made and that there should be no reduction on account of any failure to mitigate loss. There was no evidence of misconduct and the amount of compensation should not be reduced on this account.
[28] The first step is to consider what remuneration the applicant would have received or would have been likely to receive if she had not been dismissed. This requires an assessment of how long the applicant would have remained employed by the respondent and the remuneration she would have earned. It necessarily involves an element of speculation. As referred to above, the performance issues with the applicant were ongoing and even though she had been employed since 2022 I think it unlikely that she would have remained employed beyond a further eight weeks even if the respondent had followed different performance management and termination processes.
[30] The applicant received a salary of $1,311.54 (gross) per week. Upon termination, the applicant was paid four weeks' pay in lieu of notice. This should be deducted from the final amount of any compensation payable.[10] I do not propose to make any deduction on account of contingencies.
[29] Only monies earned since termination for the anticipated period of employment are to be deducted.[11] There was no evidence as to the amount of any income earned by the applicant post-termination and I am therefore unable to determine the amount, if any, that was earned during the eight week anticipated period of employment. I therefore direct that the applicant provide details of any amounts earned in the eight-week period following termination to the Commission and the respondent within two days of this decision. Those amounts if any, should be deducted, along with the four weeks' pay in lieu of notice, from the amount to be paid as compensation. If the parties are unable to agree on a final amount to be paid, they should provide a brief written submission not exceeding one page on that issue by close of business on 2 April 2026.
Ms. C. Koullinos, appearing on behalf of the respondent
[3] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373
[4] Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRC Print S5897, [73].
[7] Ibid at 465 per McHugh and Gummow JJ.
[9] Double N Equipment Hire Pty Ltd t/as A1 Distributions v. Humphries [2016] FWCFB 7206.
[10] Bank of Sydney Ltd v. Repici [2015] FWCFB 7939.
[11] Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].
Printed by authority of the Commonwealth Government Printer
Ms Zahro Safitri
International Capital Markets Pty Ltd [2026] FWC 897
(1995) 62 IR 371
(1995) 185 CLR 410
(1998) 88 IR 21