s.394 - Unfair dismissal

The Trustee for Olive Lane Wholesale Unit Trust

Application for an unfair dismissal remedy - dismissal unfair - compensation ordered.

• [1] Ms Olivia Moncur has made an application to the Commission for an unfair dismissal remedy under s 394(1) of the Fair Work Act 2009 (Cth) (Act). Ms Moncur alleges she was unfairly dismissed from her employment with the respondent, The Trustee for Olive Lane Wholesale Unit Trust. The respondent did not:

(a) file a Form F3 employer response to the application;

(b) file submissions or witness statements or other material in accordance with the Commission's directions;

(c) attend a member assisted conciliation conference convened in this matter; or

(d) comply with an order for the production of documents issued by the Commission dated 27 March 2025.

• [2] Prior to the hearing before the Commission, the parties were advised that s 600 of the Act allows the Commission to determine an application in the absence of a party that has been required to attend before it. The respondent failed to attend the hearing. I am satisfied that the respondent was on notice of the hearing and that the Commission's correspondence was received by Azzam Samma on behalf of the respondent.[1] I have proceeded to determine Ms Moncur's application for an unfair dismissal remedy based on the information before the Commission, which comprises the written material filed by Ms Moncur and her oral evidence.

• [3] For the reasons that follow, I am satisfied that Ms Moncur was dismissed by the respondent and such dismissal was unfair.

• [4] For the purposes of s 396 of the Act, I am satisfied that the application was made within 21 days of the dismissal taking effect; Ms Moncur was protected from unfair dismissal within the meaning of s 382 of the Act; the Small Business Fair Dismissal Code was not contended and does not apply to Ms Moncur's dismissal; and there is no contention that the dismissal arose by way of redundancy and so it was not a case of genuine redundancy.

• [5] In her detailed Form F2 application,[2] and witness statement,[3] Ms Moncur stated that she was an employee of the respondent between 30 October 2023 and 25 November 2024. She commenced in the role of Senior Sales Executive on a full-time basis and was promoted to the role of Business Development Manager on 3 June 2024, earning approximately $130,000 per annum exclusive of superannuation. Ms Moncur's position is that at all times she performed her employment duties to an exemplary standard.

• [6] Mr Moncur said that during the course of two meetings on 4 November 2024, Mr Samma advised her that he would soon "own" the business of the respondent, that he had taken on "all of the debt," and that "he was taking over control of Olive Lane" and the existing directors would not be involved. Ms Moncur said that she provided Mr Samma with a business overview and there was a discussion about how the business would operate going forward.

• [7] On 25 November 2024, Ms Moncur said she attended a meeting with Mr Samma and others. In summary, at this meeting, Ms Moncur explained that Mr Samma sought information about debts owed to the business and the respondent's client list, amongst other things. When Ms Moncur asked Mr Samma questions, including about the business structure and his short and long-term business plans, Ms Moncur said that Mr Samma became "agitated" and "began swearing at me" and "stated that wasn't my business" and "simply stated that his plan was 'sales.'" Ms Moncur said that she asked Mr Samma what his expectations were, and the following exchange took place:

"Mr Samma then wrote '1.25' on a page, to represent the current business turnover, he then drew up a line up the page and wrote '2M'. Mr Samma stated '$2 mil, that's all I fucking want from you.' I asked Mr Samma to clarify that what he wanted me to do was take the company turnover from 1.25 to 2 million without any further support or resource. Mr Samma stated 'yes.' I made a comment to the effect that Mr Samma's direction was idiocy. Mr Samma queried whether I called him an idiot. I stated that I did not, and that I was referring to the business strategy that he was proposing. Mr Samma then picked up a stack of papers and slammed them on the desk. Mr Samma approached me and stated 'you will be handing in your resignation on the 6th of December'. I did not respond to this. Mr Samma was irate and was yelling and swearing at me and I felt incredibly unsafe due to Mr Samma's aggressive behaviour and left the meeting."

• [8] Ms Moncur collected her personal items and prepared to leave the office. As she was leaving, Ms Moncur said that Mr Samma said to her in an aggressive tone, "leave your codes and keys as well," inferring that he did not want Ms Moncur to return to the office.

• [9] Later that day, Ms Moncur said she received a telephone call from a colleague who informed her that Mr Samma had advised the workforce that no one was to let Ms Moncur back into the office and specifically that Ms Moncur was "never to enter these doors again."

• [10] Ms Moncur said that for the week following the 25 November 2024 meeting, she continued to perform her role but worked from home in light of Mr Samma's statement that she was not to return to the office. Ms Moncur said that she focussed on sales, pursuant to Mr Samma's direction. She said that Mr Samma did not respond to her work-related emails.

• [11] On 2 December 2024, Ms Moncur said that Mr Samma telephoned her and during that call the following exchange occurred:

"Mr Samma stated that I no longer worked for him and directed me to stop speaking with Olive Lane staff. I stated that I did still work for Olive Lane. Mr Samma stated we parted ways last Monday (25 November 2024). I asked Mr Samma on what grounds had we parted ways. Mr Samma stated it was on the ground that he didn't want me working for the company anymore. I asked Mr Samma to put that in writing. Mr Samma stated I didn't have a contract with him and that he didn't have a contract with me. I stated I had a contract with Olive Lane catering. Mr Samma reiterated that I did not have a contract with him and that we had parted ways. I stated as an employer and employee there was a protocol that needed to be followed. Mr Samma stated that I had said 'I quit' during the meeting on 25 November. I denied that I had said 'I quit' and stated that Mr Samma had demanded my resignation which was illegal. Mr Samma stated that was not illegal. Mr Samma repeated that I did not work for him anymore. Mr Samma stated that after Wednesday I would not be paid again. Mr Samma directed me to return my company laptop and key. I again asked Mr Samma to put his directions into writing."

• [12] Following this telephone call, Ms Moncur said that Mr Samma sent her a text message, which stated as follows:

"Hi olivia as per our discussions as per last Monday , you don't work for the company anymore And after this Wednesday pay cycles you will not be receiving any more pay from us If you have a issue with this you can town to Theo I would appreciate a level of professionalism with customers and instruct them to call Tina and James on their respective phone numbers for any future enquires and issues My understanding , you have a laptop and key to warehouse , I can organise a pick up for them when they are available for pick up at your earliest convenience Regards Azzam."

• [13] Ms Moncur said that she did not respond to Mr Samma's text message but rather sent Mr Samma an email, which stated as follows:

Regarding our recent phone conversation today at 1.28pm and in response to your text message thereafter in which you indicated I was terminated as of last Monday. (Copy and highlighted below for transparency) ...

[copy of text included as per [12] above]

... For transparency the statements you made in this phone call were as follows:

• "I was terminated last Monday"
• "You terminated me last Monday on the grounds that you (Azzam) don't want me working for the company anymore"
• "I don't have a contract with you"
• "I don't work for you"
• "You accused me of saying that I quit when we met last Monday"
• "You acknowledged that I did in fact work for you and that's why you're entitled to fire me"
• "You agreed with my statement that you demanded my resignation and professed that this was not illegal"
• "You said that after Wednesday I will not be paid again"
• "You requested that work property be returned in due course, being a laptop and key to the warehouse"

I wish to clarify and correct the false statements you made, those being:

• I was not terminated last Monday as this requires mutual agreement by both parties in which I never consented to be terminated.
• You cannot terminate my employment purely on the basis that "you don't want me working for you anymore". This is not a legally binding reason for termination, nor does your personal preference for my employment constitute a breach of my contract.
• I wish to highlight that to date I have never received any form of warning or misconduct with regard to carrying out my professional duties.
• I do have a contract with you. It is my understanding that you are now the legal business owner of Olive Lane Catering to whom I have an employment contract with. When you purchased the business, you also accepted the employment contracts of all those staff employed by Olive Lane Catering.
• Furthermore, Olive Lane Catering has demonstrated that I am considered an employee as both you and the previous owners have paid me a salary and provided PAYG slips confirming my employment with Olive Lane Catering since 30th September 2023.
• I completely refute the accusation that I voluntarily "quit" last Monday as you alleged.
• In fact, in this meeting you demanded my resignation be handed in this coming Friday 6th December 2024 whilst behaving in a threatening and bullying manner. Your conduct was witnessed and heard by other staff members.
• At the time nor currently to date have I ever indicated I would be resigning as you demanded.
• The only work property I am in possession of is an ASUS work laptop. At one point I was in possession of a key to the warehouse, however I am no longer in possession of this key. I gave this key to Aaron, a previous chef of the company, who required the key to access the warehouse for weekend function work.
• As an employee of the company, I am willing and able to carry out my professional duties as contracted and I look forward to continuing to receive all of my pay and entitlements moving forward despite your threat to stop paying me after this Wednesday.

It is evident that our professional relationship is strained, and we disagree over the validity that I have in fact been dismissed. Furthermore, you have restricted my ability to perform my role by limiting my communication with staff; preventing me from coming into the office; and withholding operational information. I believe we have two options to move forward in a constructive manner for both parties.

• I would consider an agreement in writing signed by both parties providing financial compensation of three months' salary and entitlements paid and received in full if you wished to part ways through mutual agreement; or
• Please provide evidence and the legal grounds upon which you wish to dismiss me as your current reason is not legally binding. May I remind you I have never received any form of verbal or written warning nor professional training about my work conduct.

For clarity, this email is not my resignation nor do I accept the unfair grounds upon which you have attempted to dismiss me.

I look forward to you responding, and ALL further correspondence being in writing through email. Should you restrict my access further by cutting off my work email you can contact me at [redacted]."

• [14] On 3 December 2024 Ms Moncur's access to Google Workspace was removed and on 4 December 2024, Ms Moncur's access to the respondent's IT systems was blocked. The only correspondence that passed between Mr Samma and Ms Moncur thereafter concerned Mr Samma's request for Ms Moncur to return the company laptop, with Mr Samma stating on 4 December 2024 that "everyone" had been advised that Ms Moncur was "no longer with the company" and "all help was appreciated."

• [15] I accept Ms Moncur's evidence, which I found to be detailed, credible and convincing. I am satisfied and I find that Ms Moncur was dismissed on 25 November 2024 within the meaning of s 386(1)(a) of the Act at the respondent's initiative. The principal contributing factor leading to the employment termination[4] was Mr Samma's instruction to Ms Moncur, as she was departing the office after Mr Samma had demanded her resignation, to leave her "codes and keys as well," demonstrating that Ms Moncur was not to return to the office to perform her duties. This finding is consistent with Mr Samma's position when he telephoned Ms Moncur on 2 December 2024 and stated that Ms Moncur "no longer worked for him" and that they had "parted ways last Monday" being 25 November 2024, on the ground that Mr Samma did not want Ms Moncur working for the company anymore.

• [16] It follows that I am satisfied on the evidence before the Commission that Ms Moncur did not state, "I quit" at the 25 November 2024 meeting, or otherwise tender her resignation. For completeness, I record my satisfaction that Ms Moncur's personal circumstances weigh against a conclusion that she resigned from her employment prior to the Christmas period.[5] Further, the documentary evidence before the Commission provides a relatively contemporaneous written record of Ms Moncur's emphatic denial that she resigned on 25 November 2024, or at all.

• [17] In deciding whether the dismissal was unfair I am required to take into account the matters in s 387 of the Act. I find that there was no valid reason for the dismissal (s 387(a)).[6] Ms Moncur was not notified of a valid reason for dismissal (s 387(b)).[7] She was not given an opportunity to respond to the reasons for dismissal (s 387(c)).[8] There was no unreasonable refusal of a support person (s 387(d)). I find that Ms Moncur was not warned about poor performance (s 387(e)). The considerations in ss 387(f) and (g) carry little weight in this matter. I have taken into account the personal circumstances to which Ms Moncur referred,[9] which I regard as relevant factors (s 387(h)). I conclude that the dismissal was harsh due to the economic and personal consequences to Ms Moncur, unjust due to the absence of any procedural fairness, and unreasonable because there was no valid reason to support a dismissal.[10] The dismissal was therefore unfair.

• [18] As to remedy, I find that reinstatement is inappropriate. It is not sought by Ms Moncur as she considers the working relationship with Mr Samma to be irretrievably broken, and I accept her evidence. I consider that compensation is appropriate (s 390(3)).

• [19] In assessing compensation, the Commission is required by s 392(2) of the Act, to take into account all of the circumstances of the case. I consider these circumstances below and in undertaking this task apply the long-established methodology for assessing compensation in unfair dismissal cases as outlined by the Full Bench in Sprigg v Paul's Licensed Festival Supermarket (Sprigg).[11] The approach in Sprigg is as follows:

Step 1: Estimate the remuneration the applicant would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.

• [20] The consideration commences with an assessment of the remuneration that Ms Moncur would have received, or would have been likely to receive, had she not been dismissed (s 392(2)(c)). This requires an estimation of Ms Moncur's anticipated period of employment;[12] that is, how long she would have remained in employment but for the dismissal, and the remuneration she would have received, or been likely to receive, during that period.[13] There is an element of speculation in this counterfactual task as it involves an assessment of what would have been likely to happen in the future had Ms Moncur not been dismissed.

• [21] Ms Moncur's evidence was that her personal circumstances are such that she would not have left the employment relationship absent securing new employment, which she did after a period of approximately 15 weeks. However, Ms Moncur acknowledged that the environment was "toxic." In this respect, it is relevant to note that Mr Samma had directed Ms Moncur on 25 November 2025 to hand in her resignation "on the 6th of December." As noted by the Full Court of the Federal Court in He v Lewin, in determining the remuneration the employee would have, or would have been likely to receive, the Commission is required to give its attention to an actual state of facts:[14]

In determining the remuneration that the employee would have received, or would have been likely to receive, the Commission is required to give its attention to an actual state of facts... In each case, it is necessary for the Commission to address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.

• [22] In this case, absent the dismissal occurring, the parties may have made attempts to resolve the conflict between them and continue the employment relationship, at least in the short term. However, in circumstances where Mr Samma had sought to procure Ms Moncur's future resignation, it may equally be said that the respondent may have taken steps to end Ms Moncur's employment in an alternative way the weeks following 25 November 2024.

• [23] Taking into account these matters, and on balance, I am not persuaded that Ms Moncur would have remained in employment for a 15-week period beyond 25 November 2024. Nor do I consider that Ms Moncur would have volunteered her resignation on 6 December 2024 or prior to Christmas 2024 for the reasons she relies upon in her written material.[15] However, I do not consider that Ms Moncur's employment would likely have continued for longer than four weeks from the effective date of her dismissal, having regard to Mr Samma's demand for her future resignation and Ms Moncur's statement that she knew she wanted to leave the toxic environment. It follows that I consider Ms Moncur would have remained in employment for a period of four weeks, had she not been dismissed. Ms Moncur was remunerated a gross annual salary of $130,000 which is $2,500 gross per week.[16] For the purposes of step 1 in Sprigg, in the four weeks following the dismissal, Ms Moncur would have received remuneration of $10,000 gross, plus superannuation.

• [24] The Commission is required by s 392(2)(e) and (f) to take into account any amounts earned by Ms Moncur from employment or other work since the dismissal. Ms Moncur's evidence is that she did not earn any remuneration in this four-week period. I accept this evidence. Accordingly, for the purposes of step 2 in Sprigg, I make no deductions to the provisional compensation sum above.

• [25] The length of Ms Moncur's employment with the respondent was approximately 13 months. She was dismissed without notice or payment in lieu of notice, which under the Act is two weeks. It is appropriate to consider and take this matter into account under s 392(2)(b), and/or it is a relevant matter under s 392(2)(g) in the manner discussed by the Full Bench in Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries.[17] I consider that Ms Moncur should be compensated for this loss, which she suffered because of her unfair dismissal. It follows that the relevant amount for two weeks' pay ($5,000) is added to the above provisional compensation sum, yielding a total of $15,000 gross, plus superannuation.

• [26] I have considered whether any discount should be made for contingencies, consistent with step 3 in Sprigg.[18] A discount for contingencies is a means of taking into account the various probabilities that might otherwise affect earning capacity.[19] However, in circumstances where the four-week anticipated period of employment has entirely passed, I do not consider that in the circumstances of this case,[20] a deduction should be made for contingencies. This is because there is no relevant uncertainty that needs to be accounted for in that four-week period.

• [27] Further, with respect to step four in Sprigg, I have considered the impact of taxation. Compensation will be determined as a gross amount, and it will be left to the respondent to deduct any amount of taxation required by law. There are no other matters that are relevant in determining an amount of compensation apart from those to which I now turn.

• [28] There was no evidence or submissions made by the respondent that would warrant an adjustment to the provisional compensation sum, having regard to the viability of the respondent's business (s 392(2)(a)). I am satisfied that Ms Moncur made reasonable efforts to mitigate her loss by applying for 42 roles following her dismissal and commencing new employment prior to the hearing in the Commission (s 392(2)(d)). I am satisfied that no discount to the provisional compensation sum ought to be applied. There being no findings of misconduct by Ms Moncur, I am not required by s 392(3) of the Act to reduce the amount of compensation I would otherwise order by an appropriate amount. Accordingly, I make no reduction of this kind. There was no submission that any amount of compensation should be subject to payment by instalments (s 393). No order will be made to that effect.

• [29] The provisional compensation sum appropriately does not include a component for shock, humiliation or distress (s 392(4)). The amount of compensation which is derived from the above considerations is $15,000 gross, plus superannuation, which is less than the compensation cap in s 392(5) of the Act in relation to Ms Moncur.

• [30] Having applied the formula in Sprigg, I am nevertheless required to ensure that the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case.[21] I am satisfied that the above analysis takes into account the matters set out in s 392(2) of the Act, and the compensation that I have determined is, appropriately, neither excessive nor inadequate having regard to all the circumstances of the application.

• [31] I consider it appropriate to make an order that the respondent pay Ms Moncur the sum of $15,000 gross, less taxation as required by law, plus 11.5% superannuation[22] which is $1,725. I will order these amounts to be paid within 28 days of this decision.

• [32] It should be noted that this decision only provides a remedy for Ms Moncur's unfair dismissal application. It does not address any outstanding contractual entitlements that Ms Moncur contends are owed to her by the respondent. To the extent that it is contended that there are accrued statutory entitlements to annual leave and wages that have not been paid to Ms Moncur upon the termination of her employment,[23] this is a serious matter and although not in the Commission's jurisdiction, any such outstanding amounts, if they arise, should be rectified by the respondent without delay.

• [33] An order is issued separately in PR788808.

[1] On 21 January 2025 and 13 March 2025, Mr Samma acknowledged the Commission's correspondence. To the extent Mr Samma was not the appropriate contact person for the respondent, Mr Samma's 21 January 2025 correspondence stated that the Commission's correspondence had been forwarded to the "director"

[2] Exhibit 1, Digital Court Book (DCB) 3-32

[4] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625, 62 IR 200 at 205-206; Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [50]; cf NSW Trains v Mr Todd James [2022] FWCFB 55; 316 IR 1 at [45] which concluded that s 386(1)(a) means termination of the employment relationship and/or the contract of employment. In this respect see Shane John Varichak v COG Regional Team Pty Ltd [2022] FWCFB 37 at [33]

[6] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371; Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681

[7] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [55]

[8] Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1 at 7; Central Queensland Services Pty Ltd v Tara Odgers [2020] FWCFB 304 at [42]; Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]; Bartlett v Ingleburn Bus Services Pty Ltd t/as Interline Bus Services [2020] FWCFB 6429 at [19] and [21]; Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137 at [75]

[10] Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at [128]

[11] Print R0235; [1998] AIRC 989; (1998) 88 IR 21. This approach was articulated in the context of the Fair Work Act 2009 (Cth) in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge [2013] FWCFB 431; 229 IR 6 and Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206 at [16] (Double N Equipment Hire)

[12] See Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) (Ellawala) at [34]

[13] He v Lewin [2004] FCAFC 161; 137 FCR 266 at [58]

[17] [2016] FWCFB 7206 at [34]

[18] Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001) at [39]

[19] Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53, 184 CLR 485; Ellawalla at [43]

[20] Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge [2013] FWCFB 431, 229 IR 6 at [53]

[21] Double N Equipment Hire at [17]; Smith v Moore Paragon Australia Ltd PR942856, [2004] AIRC 57, (2004) 130 IR 446 at [32]

[22] The superannuation guarantee percentage at the time of the dismissal

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