Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether dismissal harsh, unjust or unreasonable

• [1] Ms Nicole Cassin (who also goes by the names Nikole Cassin, Nicole Horan and Nikole Horan) was employed by Neta Care Holistic Health Services Ltd (NCHHS) on 2 September 2024. Initially, Ms Cassin was employed in the role of Executive Community Services. On 20 January 2025, Ms Cassin's contract of employment was varied by agreement, and she became Executive Director. Ms Cassin submits that her employment with NCHHS was also a transfer of employment from Get Going Pty Ltd trading as Get Going Support (GGS), a business she established years earlier, and that her length of service was more than 4.5 years. In the absence of evidence that Ms Cassin was actually employed by GGS, the submission is not established. On 11 March 2025, Ms Cassin resigned from her employment with NCHHS, giving 3 months' notice. On 21 March 2025, Ms Cassin was summarily dismissed for serious misconduct.

• [2] On 30 March 2025, Ms Cassin applied in time for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). Ms Cassin is protected from unfair dismissal because the minimum employment period of at least 6 months has been completed and the employment was covered by a modern award. The dismissal was not a case of genuine redundancy. NCHHS is not a small business employer for the purposes of the Act and the Small Business Fair Dismissal Code does not apply.

• [3] The question is whether the dismissal was harsh, unjust or unreasonable. I am not satisfied that the dismissal meets any of those descriptions. Ms Cassin has not been unfairly dismissed. These are my reasons.

• [4] On 11 May 2020, the business of Neta Care Pty Ltd (NCPL) was registered as a business providing home care services under the National Disability Insurance Scheme (NDIS). NCPL is a business interest of Edwin-Nweze Pty Ltd as trustee for the Edwin-Nweze Family Trust. Mr Chukwuemeka Edwin-Nweze is a director of NCPL.

• [5] On 18 October 2020, Ms Cassin established GGS as a provider of home care services funded by the NDIS. Ms Cassin has a number of other business interests and shareholdings, including as trustee for the KMT Trust.

• [6] On a date unknown, Ms Cassin and Mr Edwin-Nweze decided to merge their respective disability support services of NCPL and GGS into a joint business entity to be known as NCHHS. In pursuit of this endeavour:

1. On 14 May 2024, NCHHS was registered as a company and charity with the Australian Charities and Not-for-profits Commission and the Australian Securities and Investments Commission. Its practical purpose was to be the primary vehicle through which the merged operations of NCPL and GGS were to be performed.

1. Ms Cassin was employed by NCHHS as Executive Community Services under a contract of employment dated 5 September 2024 (completed on 12 September 2024), Under the contract, Ms Cassin had a general duty to "act in the Employer's best interests at all times". The contract provided for an annual allowance of $55,000 that Mr Edwin-Nweze says was for the maintenance of ongoing GGS activities that did not transfer to NCHHS.

1. On terms dated 4 September 2024, Ms Cassin entered into a "Shareholders Agreement" with Edwin-Nweze Pty Ltd in her capacity as trustee for the KMT Trust. The shareholders agreement provided for the sale of shares in NCPL to the KMT Trust.

1. A related "Share Sale Agreement" was entered into on 13 September 2024. Under the share sale agreement, Ms Cassin acquired shares in the business of NCPL at the nominal value of $1 per share. A condition of the share sale was that prior to completion, there must be a "successful merger of NCPL operations and GGS into NCHHS". It is not in dispute that the operations of NCPL and GGS were merged in connection with the share sale agreement.

• [7] The merger resulted in most of the business activities of GGS transferring to NCHHS. Some of its activities continued, including the employment of an employee whose visa was sponsored by GGS, Ms Stephanie Mackay, and the provision of services to clients who were unable to be transferred to NCHHS either because they did not consent or for some other reason.

• [8] On 14 January 2025, the parties agreed to vary Ms Cassin's contract of employment. With effect from 20 January 2025, Ms Cassin's role was changed to Executive Director and her salary was altered by the cessation of payment of the GGS administration allowance. Other terms of the contract remained substantially the same. Although not provided for in her contract, Ms Cassin was from that time also paid a "Director's allowance".

• [9] On 11 March 2025, Ms Cassin resigned from her employment with NCHHS. She spoke with Mr Edwin-Nweze and they agreed on a three month notice period. They also agreed that Ms Cassin could restart her own business providing disability services, including through the entity of GGS, as long as she changed its name and did not poach NCHHS staff or clients. The resignation was formally accepted by NCHHS on 12 March 2025.

• [10] On 12 March 2025, Ms Cassin:
  1. advertised multiple jobs with GGS on LinkedIn using the GGS name, and
  2. spoke with Ms Alison Roberts (HR Manager) and invited her to give Ms Swechha Subedi (NCHHS Compliance Manager) her phone number.

• [11] On 12 or 13 March 2025, Ms Cassin offered Ms Carrington Schulze (NCHHS Executive Community Services Officer) a job with GGS.

• [12] On or about 13 March 2025:
  1. Ms Roberts told Mr Edwin-Nweze that she would be resigning the following week and that Ms Cassin had asked her to join her, and
  2. Ms Danielle Vollbrecht (Interim Finance Team Leader) asked to speak with Mr Edwin-Nweze. He asked her if she was resigning too, and she started to cry, saying, in words to the effect "I am resigning because I found a job closer to home."

• [13] On or about 14 March 2025, Ms Cassin asked Mr Edwin-Nweze if she could use the GGS name. Mr Edwin-Nweze responded by saying that he might consider it, but said, in words to the effect "You said you wouldn't contact staff and clients and you've already done that". Ms Cassin replied, in words to the effect: "Alison and Carrington were going to leave anyway".

• [14] On 15 March 2025, Ms Cassin posted a LinkedIn post saying GGS was relaunched.

• [15] On or before 16 March 2025, Ms Cassin offered Ms Danielle Vollbrecht (NCHHS Interim Finance Team Leader) a job with GGS.

• [16] At 3.44pm on 19 March 2025, Mr Edwin-Nweze wrote to Ms Cassin and directed her to commence a period of gardening leave and to return all property of NCHHS. The letter alleged that she had engaged in serious misconduct by:

1. on or around 13 February 2025, without authorisation, approaching Ms Vollbrecht, Ms Schulze and Ms Roberts and inducing them to resign from their employment with NCHHS to accept an offer of employment with GGS, a direct competitor (It is agreed that this allegation incorrectly identified the relevant date and that it should have been 13 March 2025.);
2. on 18 March 2025, without authorisation, sending an email to numerous clients of NCHHS and its associated entities marketing the services of GGS;
3. on 18 March 2025, without authorisation, locking all staff of NCHHS and its third party digital marketing provider, Surf Pacific, out of NCHHS social media accounts, making unauthorised changes to those accounts, and failing to comply with a lawful and reasonable direction of NCHHS to give it access to its social media accounts;
4. on 19 March 2025 and 20 March 2025, failing to comply with lawful and reasonable directions of NCHHS to return any of its property in her possession, custody or control; and
5. on 20 March 2025, without authorisation, contacting Optus and instructing it to prevent the transfer from GGS of several mobile telephone numbers used by staff of the NCHHS, including two Service Delivery Managers, compromising the operations of NCHHS and client care.

• [17] At 3.52pm on 19 March 2025, Ms Cassin replied to the letter of 19 March 2025. She did not respond to the substantive allegations. In relation to the direction to return NCHHS property, she claimed to be "unclear on exactly what items" NCHHS was claiming ownership of and requesting to be returned, and sought a detailed itemised list of the requested property (including serial numbers, asset tags or other identifying information to confirm ownership), evidence of company ownership of the items, and clarification on what specific confidential information or intellectual property fell under her contractual obligations to return.

• [18] At 3.53pm on 20 March 2025, Mr Edwin-Nweze wrote to Ms Cassin directing her again to return all company property including, but not limited to, specified items in the email.

• [19] At 1.11pm on 21 March 2025, Mr Edwin-Nweze wrote to Ms Cassin restating the allegations, foreshadowing potential termination for serious misconduct, and seeking her urgent written response by no later than 5.00pm that day. Ms Cassin did not respond.

• [20] At 6.19pm on 21 March 2025, Ms Cassin was dismissed without notice for serious misconduct.

Was the dismissal harsh, unjust or unreasonable?

Was there a valid reason for the dismissal related to capacity or conduct, and was it notified to Ms Cassin?

• [21] I am satisfied on the evidence that NCHHS had a valid reason for the dismissal of Ms Cassin relating to her conduct on and after 12 March 2025. Despite having agreed to a three month notice period and the option to resume trading on her own as long as she did not use the GGS name or poach its staff, she decided to "reignite" GGS in direct competition with NCHHS. She began by advertising roles with GGS and offering some of those roles to senior administrative employees of the NCHHS, including Ms Vollbrecht, Ms Schulze and Ms Roberts. Ms Cassin submits that GGS and NCHHS were not direct competitors. I do not accept the submission. Both were vehicles through which home care services were provided under the NDIS, and they had substantial operational overlap because of the merger between NCPL and GGS.

Allegation 1 - inducing NCHHS employees to resign and join GGS

• [22] Ms Cassin denies approaching Ms Volbrecht, Ms Schulze and Ms Roberts and inducing them to resign from NCHHS and take up employment with GGS. I reject the evidence of Ms Cassin and her witnesses on this matter. The written evidence of Ms Volbrecht and Ms Schulze is strikingly similar and lacking in relevant detail. Their oral evidence was not persuasive. Each gave evidence that the GGS job ads coincidentally appeared in their LinkedIn feed such that they did not know about the job opportunities before this happened. They deny having had any help in the preparation of their statements except from 'ChatGPT', despite Ms Cassin's own admission that she sent them an email that became the basis of their evidence.

• [23] Ms Schulze's evidence is to the effect that the role on LinkedIn "popped in" to her feed on 12 March 2025 (the same date that NCHHS accepted Ms Cassin's resignation and reached agreement for Ms Cassin to resume her own business under a different name, without poaching staff or clients). Ms Schulze knew Ms Cassin had resigned that morning. She says she was interviewed about the role over the weekend and offered the job the following Monday. She denied speaking to Ms Cassin about her resignation or the opportunity at GGS before she was interviewed for the role. The evidence conflicts with a text message Ms Schulze sent to Mr Edwin-Nweze on Thursday, 13 March 2025, in which she wrote "Nik has offered me a position to return to GGS". Ms Schulze's explanation for this message is unpersuasive and I do not accept it. I find that Ms Schulze was offered a job by GGS on either 12 or 13 March 2025.

• [24] Ms Vollbrecht says she spoke to Mr Edwin-Nweze about resigning on 13 March 2025 but denies this was in connection with the offer of a job with GGS. She says she saw the job advertisement for a role with GGS on LinkedIn on the night of Friday, 14 March 2025; applied that night; was interviewed over the weekend and offered the job on the Sunday afternoon. She says she accepted the offer immediately on the understanding that she would commence in the role in April 2025 (within Ms Cassin's notice period). She denies anyone bringing the job opportunity to her attention, but at the same time says she was told by Ms Cassin on 14 March 2025 that the job was "opening up" and so she applied for it. In other words, she spoke to Ms Cassin before she applied for the role. Her last day of employment with NCHHS was 4 April 2025. Ms Vollbrecht gave 3 weeks' notice to NCHHS of her resignation. She explains that this was to get it through the next couple of pay runs. Likely, it was also because GGS had offered her employment from April 2025. I reject Ms Vollbrecht's evidence about the timeline of events for the reasons above. I find that she had already been offered a job with GGS at the time she spoke with Mr Edwin-Nweze on 13 March 2025.

• [25] Ms Roberts did not given evidence, despite being the only former employee of NCHHS who is now working for GGS who the documents show knew about Ms Cassin's resignation at the time it took effect, including about the three month notice period. Ms Roberts now works for GGS as its People and Culture Manager, reporting to Ms Schulze - who in turn reports to Ms Cassin.

• [26] In the absence of any evidence from Ms Roberts, there is nothing to contradict other evidence of statements attributed to her. I accept the evidence of Ms Subedi and Mr Edwin-Nweze in this regard, including that:
  1. on 12 March 2025, Ms Roberts spoke to Ms Subedi and suggested she make contact with Ms Cassin, and
  2. on or about 13 March 2025, Ms Roberts told Mr Edwin-Nweze that Ms Cassin had offered her a job.

• [27] After the prompt from Ms Roberts, Ms Subedi and Ms Cassin spoke on 12 March 2025 about Ms Subedi navigating her exit from NCHHS to join GGS in a few months' time. Ms Subedi's written evidence is wrong about the date this conversation took place, which is evident from the text message exchange between them. Even so, I prefer Ms Subedi's evidence about the content of this conversation because it is more consistent with the text message exchange. I reject Ms Cassin's evidence to the effect that there was no discussion between them about Ms Subedi leaving NCHHS to join GGS.

• [29] There is no documentary evidence to support this allegation, despite the apparent existence of an email to numerous clients of NCHHS and its associated entities marketing the services of GGS. The evidence of Mr Riaan Hanekom, NCHHS HR and Legal Manager, and Mr Edwin-Nweze is about Ms Cassin making LinkedIn and other social media posts, both about the relaunch of GGS and making negative comments about NCHHS. Although I consider their evidence to be truthful, it is too vague as to allow a reasonable state of satisfaction about the facts. The allegation is not established.

Allegation 3 - improperly dealing with NCHHS social media accounts

• [30] Ms Cassin is said to have been deleting people from the NCHHS social media platform and changing it back to GGS. Although it seems likely on Ms Cassin's own evidence about her right to deal with GGS and its property as she saw fit, this allegation is also not established on the evidence. That is, the witness evidence is uncertain as to the precise nature of this conduct and there is no documentary evidence of the relevant conduct.

• [31] I am satisfied on the evidence that Ms Cassin returned some, but not all, property of NCHHS. To the extent that she failed to return property of NCHHS, this was because she wrongly assumed that items once belonging to GGS remained its (and so her) property despite the merger of businesses in September 2024. Ms Cassin had always occupied a leadership role - as owner of GGS, then as an Executive with NCHHS. She had particular knowledge of the assets of the business which she used in the performance of her work. It was disingenuous of her to claim ignorance of what property she held that might belong to NCHHS rather than GGS. The failure to return laptops and other items used in connection with her work for NCHHS was deliberate and did not comply with a reasonable and lawful direction given to Ms Cassin by NCHHS. The allegation is established.

Allegation 5 - impeding the transfer of staff mobile accounts to NCHHS

• [32] Ms Cassin does not deny speaking with Optus about preventing the transfer of mobile phone accounts from a GGS-held account to one owned directly by NCHHS. Her evidence is that some of these accounts belonged to her and her family, but they cannot all fall into this category - it was a business account covering 16 separate mobile numbers. I find this allegation established.

• [33] Ms Cassin's conduct was wilful and deliberate. It was directly in breach of her contractual duty to act in the best interests of NCHHS at all times and was inconsistent with the continuation of her contract of employment. In short, during her notice period, Ms Cassin was investing in the relaunch of a competing business interest to the likely detriment of NCHHS. It was reasonable for NCHHS to seek to protect its business in the circumstances, including by seeking to bring the employment relationship to an end.

• [34] The valid reason for dismissal was notified to Ms Cassin in advance of the decision to dismiss, by the letters of 19 and 21 March 2025.

Was there an opportunity to respond to any capacity or conduct related reason?

• [35] Ms Cassin was given a short window of opportunity to respond to the reason for termination. In the circumstances, this was not unreasonable. NCHHS was acting quickly to protect its business from harm at the same time as Ms Cassin was acting quickly to "reignite" GGS in competition with NCHHS, including by enticing employees in senior positions away from NCHHS to GGS. I am satisfied that the opportunity afforded to Ms Cassin was a meaningful one. It put her on notice of its serious concerns about her post-resignation conduct. The allegations were set out clearly in writing, and Ms Cassin was no naïve. She had two days to respond but chose not to do so other than to claim ignorance about what property of NCHHS she might still hold.

Was there any unreasonable refusal to allow a support person to be present to assist at any discussions relating to dismissal?

• [36] There was no refusal to allow a support person to be present in discussions about the dismissal.

Was Ms Cassin warned about relevant unsatisfactory performance?

• [37] This is not a relevant consideration. The issue was one of conduct rather than any unsatisfactory performance.

Degree to which the size of the employer's business and any absence of dedicated human resources management specialists or expertise in the business would be likely to impact on procedures followed in effecting the dismissal

• [38] NCHHS is a business of reasonable size. It had employees in legal, human resources, and financial roles. It sought legal advice quickly after it became aware of the alleged conduct of Ms Cassin, and it may be inferred that its procedures in relation to the dismissal of Ms Cassin were adopted with the benefit of that advice.

• [39] Ms Cassin claims an entitlement to payment of her full salary and benefits for the three month notice and 'gardening leave' period. Although the entitlement existed at the time of resignation and the subsequent direction to take gardening leave, it was lost when Ms Cassin was dismissed for serious misconduct on 21 March 2025 with immediate effect.

• [40] Ms Cassin submits that she was marginalised and excluded from executive decisions, denied access to systems and information, and sidelined prior to dismissal. Although Ms Cassin says she was forced to resign, there is no dispute that the date of dismissal was 21 March 2025, and that Ms Cassin was dismissed by NCHHS. In the circumstances, the submissions are not relevant. They go to the reasons why Ms Cassin resigned in the first place rather than to her conduct after resigning and which led to her dismissal.

• [41] Ms Cassin submits that her dismissal was in retaliation for raising formal concerns regarding governance failures, financial irregularities, and compliance risks at NCHHS. I do not accept the submission. Concerns of this kind may have been contributed to her decision to resign, but the clear evidence is that the reason for dismissal was her post-resignation conduct.

• [42] Ms Cassin submits that the dismissal caused such severe and lasting distress that she has been unable to work since and is under medical care, unable to return to any meaningful employment while the situation remains unresolved. There is no medical evidence to support the submission. A single medical certificate dated 24 March 2025 indicates that Ms Cassin was 'unfit for work' for a brief period from 23 to 29 March 2025 and was "requesting personal/stress leave". This falls far short of evidence establishing the kind of medical incapacity asserted. My observation of Ms Cassin is that she has the clarity of mind and the ability to write and understand complex documents required to prepare for and participate in a legal case. It appears that since her departure from NCHHS, Ms Cassin has continued to operate the business of GGS in her capacity as its sole director. Employees, including those who report directly to her, gave evidence of their continuing employment at GGS and there is no evidence of any other person operating of the GGS business in her place.

• [43] There was a valid reason for the dismissal of Ms Cassin for the reasons described above. The dismissal process was necessarily short because of her own conduct in connection with the 'relaunch' of GGS. I do not accept that there was a relevant denial of procedural fairness in the circumstances. The allegations were set out clearly in writing in a comprehensive way (despite the initial date error in allegation 1). Ms Cassin had the opportunity to respond but chose not to. It was reasonable for NCHHS to act quickly to protect its position, and it is well established that the process of dismissal for serious misconduct may be more truncated than would otherwise be expected when dismissal of an employee is in contemplation. None of the other matters raised by Ms Cassin in support of the contention that the dismissal was unfair are persuasive.

• [44] On balance, I am not satisfied the dismissal was not harsh, unjust or unreasonable. Ms Cassin has not been unfairly dismissed.

Mr T Plummer of Irwell Law Pty Ltd for the respondent.

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