s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether the dismissal was consistent with the Small Business Fair Dismissal Code - dismissal consistent - application dismissed

• [1] On 24 October 2024, Mr Nigel D'Cruz (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with SIA Construct Pty Ltd (the Respondent).

• [2] Mr D'Cruz submits that he met Simon Whybrow (Director) in July 2018, when initially performing work as a labourer and post tensioner under his own ABN for a business called CSS. In 2018 CSS liquidated. When Mr Whybrow commenced a new business - Ultimate Post Tensioning, full-time employment was offered to the Applicant. This company was liquidated in 2023. The Applicant gave evidence that his employment then transferred to SIA Construct Pty Ltd along with most of the other full-time employees including some casuals[1].

• [3] On 18 October 2024, the Applicant's employment was dismissed for the reason of serious misconduct. The Applicant disputes his conduct amounted to serious misconduct and submits that he was given an unlawful and unreasonable direction to work in unsafe conditions. He says his dismissal was unfair.

• [4] At the hearing on 23 January 2025, the Applicant was legally represented and gave sworn evidence. Two witnesses for the Applicant gave evidence:

• Mr Cullen Richardson, coworker
• Mr Julian Korau, coworker

• [5] Mr Simon Whybrow was self-represented and gave evidence. Mr Whybrow called Mr Terry Ngaiore, Construction Supervisor as a witness for the Respondent.

• [6] While the Applicant's employment with SIA Construct Pty Ltd commenced in 2023, he contends that his employment was continuous since 10 July 2018. He submits that during the Applicant's employment with Mr Whybrow, the working relationship was a good one, often with the Director relying on him to run the crew on jobs.[2]

• [7] Mr D'Cruz was prone to exaggeration, he describes his employment or working relationship with Mr Whybrow as seven years,[3] at times 8 years in oral evidence, but he first came to know Mr Whybrow as a contractor in his own business in July 2018.[4] He commenced employment with Ultimate Post Tensioning in or around 2019. Employment with the Respondent - SIA Construct Pty Ltd commenced 11 September 2023.[5] During oral evidence he described his role as Leading Hand, Project Manager, Construction Manager, Second in Charge, Installer and Labourer. However, during cross examination by Mr Whybrow, he admitted that he did not hold the roles other than Installer/Labourer. I am satisfied that Mr D'Cruz was employed by the Respondent on 11 September 2023 consistent with the role described in the letter of offer.

• [8] Mr D'Cruz further submits that while it was generally a good working relationship, the Director disregarded health and safety as he prioritised the completion of jobs in unsafe conditions. He says the disregard for health and safety often created tension between the employees, including the Applicant and the Director. Mr D'Cruz further states that another area of dispute between the parties was the reluctance of the Director to grant the taking of annual leave except during the annual closedown and says there was pressure to work when sick. Further he submits that when he had to take sick leave, the Director drew the entitlement from his annual leave accrual. A further alleged issue of concern was the inaccurate record keeping of entitlements and his loss of annual leave that he accrued over his period of employment. Much of this evidence was his opinion without supporting evidence or where employment records (including payslips[6]) showed otherwise.

• [9] However, oral evidence from the Applicant's witnesses supported his contention that in their opinion it was unsafe to perform work on 18 October 2024. Mr Ngaire (the Respondent's witness) admitted to disagreeing with certain decisions made at times by Mr Whybrow. But his evidence was that on 18 October 2024, his crew (working at a different site) were sent home not by Mr Whybrow but by the union because of flooding. When cross examined by the Applicant's Representative, he agreed that Mr D'Cruz spoke to him but did not disclose that the South Yarra crew was directed to an alternative site when permission was obtained for the three to leave the South Yarra site because of the rain. In relation to allegations of impropriety concerning the payment of leave entitlements, Mr D'Cruz's evidence was unreliable. Payroll records and payslips showed the payment of annual leave and sick leave including the balance of annual leave on termination of employment, albeit not immediately. Mr D'Cruz's motivations with the allegations was to discredit Mr Whybrow's character.

• [10] Mr D'Cruz while initially submitting that they had a good relationship, later submitted he was dissatisfied with Mr Whybrow for not permitting him to take annual leave or an RDO at a time of his own choosing. He was further dissatisfied when he was sent to a job in Flemington without his two mates. While being cross examined by Mr Whybrow he became quite agitated and aggressive in tone, claiming he was responsible for the culture of the business and not Mr Whybrow. While he acknowledged that he was not the Leading Hand, he disagreed that it was not his job to make decisions as to whether the job was safe or to ring other workers at different sites. In oral evidence, Mr D'Cruz did not directly accept Mr Whybrow's statement that it was required to obtain permission before leaving a site.

• [11] Mr D'Cruz denies receiving warnings during his employment. Rather he says that Mr Whybrow made threats to work in unsafe conditions.[7] Mr Whybrow referred the Applicant to past incidences resulting in verbal warnings on 4 March 2024, 27 March 2024, 15 August 2024 and 4 October 2024. While giving evidence, Mr D'Cruz was argumentative and avoided answering the questions directly. He denied receiving the warnings and disputed the facts, but did accept that he was spoken to about his refusal to watch a concrete pour and his threat of violence against other workers in his text.[8] He admitted to directing a staff member from another site to join him without permission; the texts show that Mr D'Cruz did not respond to Mr Whybrow's efforts to contact him, the crew left the site early and the customer at the other site was left without labour.[9]

• [12] In relation to the incident of 4 October 2024, Mr D'Cruz submits that he did not leave the site early but left at 12.30 or 1.00pm. He denies being warned. The text message evidence at 9.25am and 11.25am shows Mr Whybrow directing Mr D'Cruz and another worker, Mr Korau, to a site on Inkerman Street before finishing work for the day. Both messages are not responded to by either the Applicant or his coworker. Also in evidence is a message from Mr Korau at 11.29am confirming he was at home because he and the Applicant "smashed it" and got the job done. The response is clear that they left work early without permission. Mr Korau confirmed that both he and the Applicant left the work site at around 10.30am or 11.00am. Evidence from Mr D'Cruz that they left the site in the afternoon is not plausible. From the text message evidence it is apparent that leaving work early without authority was a matter causing disputes between the Applicant and Mr Whybrow. I accept that Mr D'Cruz was aware of his obligation to obtain permission before he left a site, he knew there were times that his work will require transfer to another site and he knew that his employment was at risk because of his behaviour.

• [13] Mr D'Cruz tendered into evidence a work procedure guide from Ultimate PT Pty Ltd dated June 2019 for a project in Croydon (referred to as the Safe Work Method Statement). He submits the document is used for post tensioning work and says it does not include concrete cutting work. On this basis Mr D'Cruz submits that concrete cutting is not in his job description. Despite concrete cutting not being in his job description he accepts that concrete cutting is necessary and is performed.[10] He further relies on the Safe Work Method Statement which allegedly prohibits the use of electrical equipment in rain. It is on this basis that Mr D'Cruz submits that the alleged dismissal for serious misconduct is unjustified because the refusal to work in unsafe ("life threatening") conditions was lawful.[11]

• [14] I observe that the Safe Work Method Statement is for a company called Ultimate PT Pty Ltd, and dated June 2019 and to be reviewed in March 2021. Simon Whybrow is recorded as the Production Manager and Project Leader of the Mt Dandenong Croydon project.[12] Mr Whybrow challenged the relevance of this document to any of the work performed by the Applicant for the Respondent. The relevance of this document was not established by Mr D'Cruz to his employment with SIA Construct Pty Ltd.

• [15] A report by VSL International,[13] was tendered into evidence of which its relevance was not established. The preface/ introduction notes that the information and principles are helpful for an engineer to solve post tension structure problems in the design phase. Neither Mr D'Cruz nor the business was engaged in engineering design work.

• [16] He further relies on clause 24.5 of the Building and Construction On-site Award 2020[14] (the Award) and states that when there is rainfall between 7am to 11am and continuing, it is an immediate down tools.[15] Clause 24.5 of the Award refers to inclement weather and does not provide as the Applicant asserts. Relevantly, clause 24.5 of the Award provides:

24.5 When inclement weather conditions exist an affected employee is not required to start or continue to work where it is unreasonable or unsafe to do so. In cases where emergency work is required or it is necessary to complete a concrete pour already commenced to a practical stage, work may occur or continue provided that such work does not give rise to a reasonable concern on the part of an employee undertaking the work of an imminent risk to their health or safety.

• [17] The above clause makes no reference to down tools where there is rain between 7am and 11am. The Award provides conditions where there is inclement weather. The decision to dismiss Mr D'Cruz was because he refused to follow a direction to go to a site in Brighton; there is nothing in the Award that Mr D'Cruz pointed to that does not permit the employer to direct employees to perform alternative work in the event of inclement weather.

• [18] On 18 October 2024, Mr D'Cruz was scheduled to work at a site in South Yarra with two coworkers. The task was to complete post tensioning installation of cables. He submits that it was unsafe to complete the work because it was wet, and use of power tools was unsafe.[16] At around 11.00am one of his coworkers contacted Mr Whybrow and the crew was directed to a site in Brighton which he says was not on the list of sites for the day. This required cutting ducts and concrete. It is this task that Mr D'Cruz objected to because he did not have his correct PPE with him that day for cutting concrete and he says it was unsafe due to wet weather. He says that Mr Whybrow responded that they would be "lucky to have a job by Monday."[17]

• [19] Dissatisfied with Mr Whybrow's texts Mr D'Cruz called other employees working at different sites and discovered they were either sent home or told not to come to work because of the wet weather. He then submits that he and his crew were on their way to Brighton when on a phone call to Mr Whybrow the three employees were "continuously raising their concerns for their safety" He says that Mr Whybrow then finished the call with "you are done." Mr D'Cruz submits that he understood that all three were dismissed during this call without notice.[18]

• [20] Mr D'Cruz gave oral evidence that the telephone conversation on 18 October 2024 occurred while the three employees (D'Cruz, Korau and Richardson) were in the car and Mr Whybrow was on loudspeaker. He gave evidence that the employees refused to go to the next site because of safety concerns. He says all three were dismissed on the call. He confirmed that he was dismissed without notice then subsequently returned his employer's tools. It is submitted the dismissal was immediate without notice and this too was unfair.

• [21] All three witnesses made statements that a risk assessment was done. The Applicant says that Mr Korau conducted the risk assessment. In fact, there is no evidence of a completed risk assessment, the Applicant and his coworkers simply opined that it was unsafe because none of the three went to the site and there was no challenge to Mr Whybrow's evidence that they had not been at the site for some four weeks. Building sites change within days and weeks, but clearly no risk assessment was made by the Applicant nor was there a risk assessment on which he could rely to say the site was dangerous. Mr D'Cruz contended that the site was unsafe because he did not believe there were windows so water would enter the building and sit at the perimeter of the floor. Importantly, Mr D'Cruz reiterated that he did not have his mask with him, and he suffers from asthma.

• [22] During witness evidence Mr D'Cruz departed from his statement suggesting he did not refuse to go to the Brighton site, but nevertheless he wasn't going because it was unsafe and he didn't have his mask.

• [23] Mr Cullen Richardson submitted a short statement confirming that he witnessed the dismissal over the phone of the Applicant on 18 October 2024.[19] Mr Cullen gave oral evidence that Mr Korau was the Leading Hand on the day, but after reading the texts to relocate and ringing around to other sites all three decided they did not want to go to the Brighton site. His evidence was that start time was 7.00am but at 10.00am their work was interrupted with heavy rain. Mr Cullen admitted the three were discussing the text to relocate and did not want to go before they left the site. On reading each text from Mr Whybrow, he was concerned by the last text which read "you will all be lucky to have a job on Monday" so he called and got Mr Whybrow on the phone. It was this call with all three in the vehicle while still at the South Yarra site where the Applicant was dismissed. Mr Richardson admitted that he too did not have his mask which was provided by his employer. He confirmed that all three agreed they would not relocate and Mr Whybrow was not listening to them. He described the call as not being a long one, but there was a "lot of back and forth," there was a sense of frustration because Mr Whybrow was resolute on the direction but he says "we tried to tell him and he ended the call with "then you're done." He says all three understood this to mean dismissed.

• [24] Mr Julian Korau submitted a witness statement[20] and he says that on 18 October 2024 he was the leading hand. He says that he was at the job in South Yarra with the Applicant and Mr Richardson. He called Mr Whybrow that the job was not complete because of the weather. He and his coworkers did not want to go to Brighton as directed. He further says that he called other job sites and was informed that Mr Whybrow sent them home.

• [25] Mr Korau gave oral evidence and initially said that the three were driving to Brighton when they had the final telephone conversation with Mr Whybrow on loudspeaker. But when questioned by the Commission he admitted to not having left South Yarra at all. Instead of following the direction to relocate they were all sitting in his parked car after they downed tools on the South Yara job. While giving witness evidence he confirmed they did not want to go to the next site. He says he personally didn't have a mask because he was not given a mask. He gave evidence that he did not know if the other two coworkers had their masks but assumed they did not because they all carpooled in his car. Mr Korau says that he told Mr Whybrow it was not safe because of the rain and dust. He admitted that "Nigel and Cullen were mostly talking." He says they both said it was unsafe and everyone else left for the day so why did they have to go.

• [26] Mr Simon Whybrow, Owner/ Director appeared for the Respondent and submits that Nigel D'Cruz was employed in the position of Construction Labourer from 11 September 2023 until his dismissal on 18 October 2024. He further says in response to allegations of continuous employment that the Respondent is not an associated entity of Ultimate Post Tensioning. Mr Whybrow says that he employs 6 full-time employees and 6 casual employees. There were 12 employees at the time of the Applicant's dismissal. In addition, as a small business he has no HR or payroll department and to the best of his knowledge he says that he complied with the Small Business Fair Dismissal Code when dismissing Mr D'Cruz.[21]

• [27] The Applicant did not challenge the size of business, and I am satisfied that the business was a small business as defined by s.23 of the Act.[22] Mr Whybrow contends that his dismissal of Mr D'Cruz was without notice and he believed that the conduct was so serious to justify a summary dismissal.

• [28] Prior to the dismissal on 18 October 2024, Mr Whybrow raised four prior verbal warnings. In his statement of evidence and during the hearing he provided evidence of text correspondence and cross-examined Mr D'Cruz on this evidence.

• [29] The four verbal warnings Mr Whybrow raised were:

• • On 4 March 2024, Mr D'Cruz became aggressive to an OHS representative on a project site when asked for his compliance with OHS induction. Mr Whybrow contends that he managed to smooth over the issue with the client and Mr D'Cruz was permitted re-entry. However, he again became aggressive and was banned from the site. It is submitted that a warning was given and he could never be sent to the site again.[23] The Applicant disputes a warning was given and I observed his vigorous argumentative approach during proceedings in relation to this issue.

• • On 27 March 2024, when instructed to attend a site to watch over the concrete pour to ensure no damage to their installations, he refused. The text messaging confirms he is "not watching no pour."[24] Mr Whybrow's annoyance is clear that it was a straight refusal to work because he decided he wanted to take an RDO. The text confirms that he will not be paid but the Applicant says he is stressed, then offers to work even though he might have a fight with the blokes on site. Reluctantly, Mr Whybrow grants the RDO but reminds him to think about whether he intends to continue working with the Respondent. Also, reluctantly during the hearing the Applicant conceded that he was verbally warned.

• • On 15 August 2024, the Applicant was sent to a site in Preston with another employee. However, without authority he redirected an employee scheduled to work at a different site to join him. He did not answer Mr Whybrow's calls or texts after the client complained that there was no-one at his site to perform the job.[25] During the hearing Mr D'Cruz admitted to the behaviour but took no responsibility for affecting the client or the reputation of the business, describing his actions as taking initiative.

• • On 4 October 2024, while working at the South Yarra site with Mr Korau, neither responded to contact to be relocated on completion of the job. Instead, they both left at around 10.00am and went home. During the hearing the Applicant maintained that they were on the site until 12.30 or 1.00pm, yet the text message evidence does show that they both left the site at around 10.00am.[26]

• • Mr Whybrow further presented text message evidence of reminders that the Applicant was required to call before leaving a site early.[27]

• [30] Mr Whybrow called Mr Terry Ngaiore who is the Construction Supervisor to give evidence. In the statement of evidence Mr Ngaiore confirms the Applicant's position and that he is not authorised to deliver tools, act as leading hand or to organise labour contrary to the Applicant's witness statement. He further says it is common knowledge that the Applicant would leave the work site early and go home without authority. During cross examination he admitted he has had disagreements with Mr Whybrow. He also gave evidence that he advised the Applicant in the telephone call on 18 October 2024 that the staff at the Flemington site where he was based were sent home, not because of the weather, but on direction of the union due to flooding. During the hearing Mr Ngaiore also stated that the Applicant withheld information from him, that they were directed to relocate, when he sought support for their early finish at the South Yarra site.

• [31] Mr Whybrow further tendered into evidence:

• An extract of leave balances with recorded annual leave and sick leave taken since commencement of employment plus the transferred annual leave amount from Ultimate PT Pty Ltd.

• An Employment Separation Certificate confirming employment was dismissed due to misconduct.

• • Photographs of the Brighton site which demonstrates that the work indoors was dry and not subject to the wet weather.[28]

• [32] On 18 October 2024, Mr D'Cruz was directed to relocate to another site at around 11.00am due to an urgent task. Hours of work are 7am until 3.30pm. Mr Whybrow gave evidence that the Applicant advised that he did not have his mask and the job he was directed to in Brighton required cement cutting. Mr Whybrow says that he asked the Applicant why he did not have on him the $300 mask supplied to him. He then says that he suggested to Mr D'Cruz that he either buy a disposable mask on his way to the job from Bunnings for which he will be reimbursed or use a mask available at the site from the builder. He says that it was at that moment when Mr D'Cruz said it was raining and unsafe.

• [33] Mr Whybrow gave evidence that during the telephone call he informed the three employees that the work was under cover and only one was required to wear a mask to cut the concrete while the other two were to scape and clean up. Mr Whybrow says that Mr D'Cruz made it clear he wanted to go home and refused to work his allotted shift, despite being informed that "instead of waiting out the rain, you can relocate to Brighton for a 30 minute job then go home."[29] He says Mr D'Cruz said it was unfair because the other guys on other sites were going home. Mr Whybrow says he explained that they were leaving the job site for other reasons and when the Applicant again refused to go to the other site "because it was unfair" he informed Mr D'Cruz that he is finishing up.

• [34] Mr Whybrow gave evidence that 3.30pm is finish time and despite his previous warnings about leaving work early, the Applicant was adamant he was not intending to follow the lawful and reasonable direction to relocate. On that basis he considered the refusal to follow a lawful and reasonable direction as serious misconduct.

• [35] Section 385 of the Act is expressed in the following terms:

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

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

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

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

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

(1) The Minister may, by legislative instrument, declare a Small Business Fiar Dismissal Code.

(2) A person's dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person's employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal."

• [37] The Code contains the following definition of Summary Dismissal:

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

• [38] The provisions concerning other dismissals requires the employer to give the employee the reason why the employee is at risk of being dismissed and the reason must be valid based on the employee's capacity or conduct. The employee must be verbally warned or preferably in writing that they risk being dismissed if there is no improvement. The employee must be given an opportunity to respond and a chance to rectify the problem

• [39] The unfair dismissal protections under the Act provide provisions for employees employed by a small business. A small business is defined as employing less than 15 employees.[30] It is not contested, and I accept that the Respondent is a small business employing fewer than 15 employees. Mr Whybrow gave evidence that he employed 12 employees at the time of Mr D'Cruz's dismissal.[31] Despite being a small employer Mr Whybrow did not provide a copy of a completed Small Business Fair Dismissal Code checklist. However, to comply with the Code it is unnecessary to complete this checklist as it is simply a tool to assist small employers to assess and record the reasons for dismissing an employee.[32] In the event the dismissal is not in compliance with the Small Business Fair Dismissal Code, the factors to be considered whether the dismissal was harsh, unjust or unreasonable are under s.387 of the Act.

• [40] Section 396 of the Act requires consideration of preliminary matters before merit. These matters concern whether the application was made by a dismissed person within 21 days of the dismissal,[33] whether the person is protected from unfair dismissal, whether the dismissal was consistent with the small business dismissal code, and/ or whether the dismissal was a case of genuine redundancy. The application was made within the statutory time frame. It is not contended that the dismissal was a genuine redundancy. Instead, it is contested whether the summary dismissal for misconduct was unfair and consistent with the Small Business Fair Dismissal Code. Additionally, s.382 of the Act provides that a person is protected from unfair dismissal, if at the time of being dismissed the person met the minimum employment period and an industrial instrument applied or their annual rate of earnings is less than the high-income threshold. It is not contested that Mr D'Cruz was dismissed and that he met the minimum employment period of 12 months. Further an industrial instrument applied and he was not paid in excess of the high-income threshold.

• [41] If the Applicant's dismissal is consistent with the Small Business Fair Dismissal Code (the Code), then under s.385 of the Act, the Applicant was not dismissed unfairly.

• [42] The leading authority in relation to summary dismissal under the Code is Pinawin.[34] The original decision was appealed and the Full Bench determined that where the Code applies there are different considerations. The Code requires that the employer had reasonable grounds to reach the view that the Applicant's conduct is serious enough to justify immediate dismissal. The Bench determined that s.396 of the Act requires the determination whether the dismissal is consistent with the Code before considering merits.[35]

• [43] The Bench in Pinawin considered the application of the Code and described the test for unfairness as applied by tribunals in the UK. It then referred to the principles adopted in the UK and also considered relevant cases determined in Australia.[36] Having considered these relevant matters it concluded that there are two steps to determine whether the Code is satisfied. Relevantly the Bench determined:[37]

[29] .............First, there needs to be a consideration whether, at the time of dismissal, the employer held the belief that the employee's conduct was sufficiently serious to justify immediate dismissal. Secondly, it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in their belief that it held."

[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.

• [44] Consistent with the principles of Pinawin, the question is whether at the time of the dismissal did Mr Whybrow hold the belief that the Applicant's conduct was sufficiently serious to justify summary dismissal. And secondly, had Mr Whybrow carried out a reasonable investigation into the matter. Firstly, the evidence was that Mr Whybrow believed the conduct was sufficiently serious. Mr D'Cruz was employed to work his hours, a direction to relocate is not unusual including at times of inclement weather, staff were required to obtain authority before they leave a site early, Mr Whybrow's role holds the authority to determine the priority of work at different work sites and failure to service customer requirements was evident to impact the reputation and viability of the business. The evidence further demonstrates that Mr Whybrow reasonably held the belief that the Applicant understood his obligations and had a fair understanding that his prior conduct of leaving a site early without authority or refusing to work was both serious. and his dismissal was highly probable if he continued with this conduct. Particularly given the text message to the crew warning "you will all be lucky to have a job on Monday" after the Applicant failed to respond to the texted direction. Further, during the final telephone call, the instruction to relocate was obvious. Mr D'Cruz refused to relocate because he wanted to go home and in the "back and forth" it was apparent that Mr D'Cruz was not intending to follow the direction. Based on the evidence, Mr Whybrow did conduct a reasonable investigation to reach a reasonable conclusion taking into consideration all of the circumstances of the events prior to and on 18 October 2024. Based on prior events, it is reasonable that Mr Whybrow concluded that the Applicant refused and would not follow the direction to go to the Brighton site.

• [45] The Applicant's representative submits that the summary dismissal provisions in the Code simply relate to theft, fraud, violence and serious breaches of health and safety procedures. This narrow view is not correct. The Code definition of serious misconduct includes theft, fraud, violence and serious breaches of health and safety procedures. With the use of the word includes, serious misconduct is not limited to those examples listed in the definition contained in the Code.

• [46] Relevantly, a Full Bench in Ryman v Thrash[38] considered the application of the Code, the definition of serious misconduct and what dismissals are dealt with by the "summary Dismissal" section of the Code. The Bench noted the different expressions in the Code but importantly held that summary dismissal means "dismissal without notice arising from the breach of an essential term of the employment contract, a serious breach of a non-essential term of the contract, or conduct manifesting an intention not to be bound by the contract in the future on the part of the employee." The Bench then considered misconduct that may give rise to summary dismissal to include misconduct, disobedience, incompetence or negligence.[39]

• [47] Further, while considering the definition of serious misconduct, the Bench observed that an assessment of the degree of seriousness may constitute a valid reason for summary dismissal and there is no fixed standard, but statutory instruments can influence the definition. The view was expressed that the dismissal for serious misconduct is to be read in terms of the meaning in Regulation.1.07 of the Fair Work Regulations 2009. Therefore, the whole definition in Regulation 1.07 is covered by the Code.[40]

• [48] Relevantly Regulation 1.07 provides:

(1) For the purposes of the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For the purposes of subregulation (1), conduct that is serious misconduct includes the following conduct of an employee:

(a) wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(ii) the reputation, viability or profitability of the employer's business;

(c) engaging in theft, fraud, assault or sexual harassment in the course of the employee's employment;

(e) refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.

(3) Paragraphs (2)(c) to (e) do not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

• [49] Mr Whybrow dismissed Mr D'Cruz for failing to follow a lawful and reasonable direction. The duty to follow lawful and reasonable direction is implied in all contracts of employment. It was not in dispute that rain caused the cessation of work at the South Yarra site. The issue was whether Mr Whybrow's direction to relocate was a reasonable and lawful direction.

• [50] I have formed the view that the direction was both reasonable and lawful. The Applicant presented to work his full shift on 18 October 2024. However, rain prohibited work from around 10.00am. An urgent job was required to be completed in Brighton to take around half an hour. The Applicant's scope of employment required him to travel to different locations depending on the project site to fulfil his work hours. The Applicant had an obligation to follow the direction.

• [51] I do not accept that it was an unsafe direction because firstly the Applicant simply did not want to go, then he raised the issue of him not having his mask on him before relying on the excuse of rain. Failure to carry PPE provided by the employer particularly as the job requirements can change is illogical and unreasonable; the Applicant ought to have had his mask with him each workday. Nevertheless, Mr Whybrow suggested alternative mask options, which for no sound reason were rejected by the Applicant. He suggested that the offer to purchase a mask at Bunnings was substandard. Mr Whybrow did not restrict the mask option, simply indicated that he would reimburse the cost. Evidence presented a range of options at Bunnings which are used by the trades in such work. Of course, there was also the option of using a mask available on the site. No risk assessment was conducted by the Applicant or the crew; they simply opined it was unsafe. Mr Whybrow sensibly took instructions from the health and safety representative at the project site to establish the undercover work was safe to do. Mr Whybrow's conduct was reasonable and lawful. The Applicant did not establish any danger to life or health as he alleged.

• [52] I am satisfied that Mr Whybrow formed on reasonable grounds that Mr D'Cruz refused to follow a lawful and reasonable direction which is serious enough to constitute serious misconduct and took reasonable steps to investigate. Serious misconduct warrants a summary dismissal, and the Respondent dismissed the Applicant's employment accordingly.

• [53] Having considered all of the materials before me I am satisfied that the Respondent is a small business covered by the Code. The dismissal was a summary dismissal, i.e. a dismissal without notice. The Applicant refused to follow a lawful and reasonable direction which is a serious matter covered by both the Code and Regulation 1.07. Mr Whybrow held the belief that the Applicant refused a lawful and reasonable direction, and that the conduct was serious enough to justify summary dismissal. He reasonably informed himself through direct communication over the phone to form the view that his belief was on reasonable grounds. For these reasons the dismissal was consistent with the Small Business Fair Dismissal Code and s.385 of the Act defines an unfair dismissal as a dismissal that is not consistent with the Small Business Fair Dismissal Code. Pursuant to s.396 I am to consider the preliminary matter whether the dismissal was consistent with the Code. If the Applicant's dismissal is consistent with the Small Business Fair Dismissal Code (the Code), then under s.385 of the Act, the Applicant was not dismissed unfairly. Consequently, I need not consider the criteria provided in s.387 of the Act.

• [54] Accordingly, the application by for unfair dismissal remedy by Mr D'Cruz against SIA Construct Pty Ltd is dismissed.

[1] Witness statement of Nigel D'Cruz (Exhibit A1) at [6] - [8], Digital Hearing Book (DHB) 43-44.

[3] Ibid at [6], DHB 43, but more than 8 years in the form F3 citing employment commencing on 10 July 2017 (before he met Mr Simon Whybrow).

[5] Attachment 3.1 to Exhibit A1, DHB 54 - letter of offer to position of Construction Labourer.

[6] Payslips were tendered into evidence by Mr D'Cruz.

[10] Exhibit A1 at [29] and [21], DHB 49 and 47.

[11] Ibid at [27] and [29], DHB 49.

[12] Attachment 3.4 to Exhibit A1, DHB 259-268.

[13] Titled Detailing for Post Tensioned.

[19] Witness statement of Cullen Richardson (Exhibit A2), DHB 319.

[20] Witness statement of Julian Korau (Exhibit A3), DHB 330.

[21] Respondent's Outline of Argument, DHB 363.

[22] Employing fewer than 15 employees.

[23] Statement of Evidence of Simon Whybrow (Exhibit R2), Attachment SW1, DHB 370. Site Manager report on the issue.

[24] Attachment SW2 to Exhibit R2, DHB 371. Text messages of 26 March 2024 instructing job for the following day.

[25] Attachment SW14 to Exhibit R2, DHB 385. Text messages of 15 August 2024.

[26] Attachment SW8 and SW19 to Exhibit R2, DHB 377 and 390-391. Text messages of 4 October 2024.

[27] Attachment SW17 dated 6 September 2024 and SW18 12 March 2024 to Exhibit R2, DHB 388 and 389.

[28] Attachment SW11 to Exhibit R2, DHB 380-381.

[29] Oral evidence and Respondent's Outline of Argument, DHB 363-364.

[30] Fair Work Act 2009 s.23.

[31] Oral evidence and Respondent's Outline of Argument, DHB 363-364.

[32] Introduction to Small Business Fair Dismissal Code Checklist.

[33] Fair Work Act 2009 s.394(2).

[34] Pinawin T/A RoseVi Hair Face Body v Domingo [2012] FWAFB 1359 ('Pinawin'), Watson VP, Richards SDP, Cloghan C, 21 March 2012 [(2012) 219 IR 128].

[36] British Home Stores Ltd v Burchell [1978] ITLR 379; Narong Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust TA Banana Tree Café [2010] FWA7891; and Harley v Rosecrest Asset Pty Ltd T/A Can Do International [2011] FWA 3922.

[38] Ryman v Thrash Pty Ltd T/A Wisharts Automotive Services [2015] FWCFB 5264 ('Ryman v Thrash').

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