s.394 - Unfair dismissal

Application for an unfair dismissal remedy -- Applicant's conduct allegedly causing the business reputational damage - concerns raised - direction given to Applicant to stop conduct - Applicant refused - alleged assault by Applicant on employees of Respondent - Application dismissed.

• [1] On 11 March 2025, Mr Peter Gavin Baumgarten (Mr Baumgarten / the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy, alleging he was unfairly dismissed from her employment with P.M.J. Operation's P.T.Y. L.T.D. Oonoonba (the Respondent).

• [2] Ms Melissa Butters, of the Queensland Hotels Association appeared on behalf of the Respondent, and the Applicant, appeared on his own behalf.

• [3] The Applicant did not provide a witness statement as such but did provide a written version of events from his perspective dated 23 May 2025, which was admitted as his evidence.[1] Ms Julie-Anne Anderson Venue Manager of Oonoonba Hotel provided a witness statement dated 30 May 2025 for the Respondent.[2] Ms Ellie Clarksoneliot, Gaming and Bar Attendant also provided a witness statement dated 2 June 2025[3] for the Respondent.

• [4] The matter was heard via a determinative conference by consent of the parties, by phone on 9 June 2025. The Proceedings were scheduled to commence at 10am however it became apparent Mr Baumgarten, for reasons which were not entirely clear, had not received all the material filed by the Respondent. The material was provided to Mr Baumgarten and he was content to proceed after an adjournment to 2pm.

• [5] The Applicant has been employed by the Respondent since August 2024, in a casual maintenance and gardening role working approximately 4 hours a week.

• [6] While the Respondent receives some patronage from tourists, it relies primarily on locals for its ongoing viability and success. The Applicant had been a patron of the Respondent's business prior to employment. The Applicant frequently completed his shift and remained on the premises to have a drink.

• [7] On or around 16 February 2025, a Facebook post was made in the local community Facebook group - the Idalia, Fairfield, Oonoonba & Railway Estate Community Group. This post included a photograph of a ute with two dogs tied up on the back tray, exposed to the sun. This vehicle was identified as belonging to the Applicant. The post raised concerns regarding the welfare of the dogs, criticising the conduct of the owner of the dogs for leaving them tied up in the hot Townsville weather without shade or water while spending hours inside the hotel. The post read:

For at LEAST the past five days, two dogs have been tied up in the back of a ute at a pub while their owner drinks inside. They're left for up to 6 hours in extreme heat, often with little to no water. Today reached 36C, and they're panting heavily.

One dog nearly died after jumping off the ute and being left hanging by its neck until locals intervened. The intoxicated owner then verbally had a go at the locals that helped the dog hanging by the neck.

I've been giving the dogs water and reported this multiple times to the RSPCA and Police Link but no action has been taken. The pub is aware and has told the owner to leave the dogs at home but they refuse.

Does anyone have advice on what else I can do before these dogs suffer further?

• [8] Comments under the post identified the venue as the Oonoonba Hotel (operated by the Respondent) and the owner of the dogs as an employee of the business. Several commenters accused the business of negligence in connection with the post. As the business relies heavily on local patronage, the Respondent submitted that any negative perception in the community has a detrimental impact on the Respondent's reputation, viability and overall profitability. The Respondent was particularly concerned that the public association with an individual perceived to be engaging in animal mistreatment could lead to the inference that the business condoned or tolerated such conduct.

• [9] Mr Baumgarten did not accept the comments made on the Facebook page reflected poorly on the hotel. He said social media was irrelevant to him. Mr Baumgarten disputed that his dogs could have been hanging from his Ute by a chain as the chain was too short for that to happen.

• [10] The Respondent submitted that on 17 February 2025, Ms Anderson, Venue Manager approached the Applicant to discuss the Facebook post and his conduct which was bringing the business into disrepute. Her internal inquiry confirmed that the vehicle in the post belonged to the Applicant and that they were indeed his dogs.

• [11] The Respondent submitted that Ms Anderson approached the Applicant with the Facebook post up on her phone so she could show the Applicant the Facebook post. Ms Anderson said she spoke with the Applicant about his conduct which was bringing the business into disrepute. Upon being approached, Ms Anderson claimed the Applicant became aggressive towards her.

• [12] In his Form F2, the Applicant stated that the reason for dismissal was that he had 2 dogs in his own ute parked on the premises, which was not permitted due to complaints on Facebook. He said he had been doing this for years, but the Manager knew the dogs were well looked after, in shade, with plenty of water.

• [13] In his submission document, the Applicant stated that he had just finished work and was talking to a couple of locals who were having a drink, when Ms Anderson approached him for the first time that day.

• [14] The Applicant described that Ms Anderson said he had to keep his dogs at home, it was all over Facebook, and that the dogs made the place disreputable. Ms Anderson then told him to remove the dogs off the property. The Applicant said he would move them to the front of the property in shade, on the public road. Ms Anderson then told him she would refuse him service, to which he replied that he worked there, and Ms Anderson then terminated his employment. In her evidence, Ms Anderson disagreed that the Applicant had suggested he move the Ute to the front of the hotel. The Applicant did not accept bringing his dogs to work posed a reputational risk to the hotel.

• [15] The Applicant agreed during his oral evidence that Ms Anderson told him that going forward he was not to bring the dogs to work. The Applicant also agreed that he told Ms Anderson that the dogs were his property and he would not be leaving them at home.

• [16] Ms Anderson also gave oral evidence that there had been previous occasions when she had approached the Applicant about a matter and he had become very aggressive.

• [17] Ms Anderson said in her oral evidence the reason for the Applicant's dismissal was his refusal to follow her direction to not bring the dogs to work. The Respondent submitted that Ms Anderson issued a lawful and reasonable direction to the Applicant that he must leave his dogs at home when reporting for work. The Applicant said words to the effect that the dogs were his property; they're in his car and that he would not be leaving them at home; stating that Ms Anderson couldn't tell him otherwise. Ms Anderson recalls that the Applicant spoke in an aggressive and confrontational manner as he relayed his position. Ms Anderson said in her oral evidence that for the two hours that the Applicant was at the hotel working there was no reason why his dogs could not be left at home for those two hours.

• [18] Ms Anderson went on to state that if that is how the Applicant felt, he would not be receiving any further hours at the hotel unless he complied. The Respondent said as a casual employee, the Applicant received no firm advance commitment to continuing work. The Respondent was mindful that they had no obligation to offer the Applicant another casual shift, until such time as the Applicant could commit to his compliance with the lawful and reasonable direction issued by Ms Anderson for him to leave his dogs at home.

• [19] Ms Anderson's oral evidence was that this incident occurred in an undercover area in the outside beer garden. Ms Anderson said recognising that the conversation had become unproductive and increasingly hostile, she turned to walk away from the Applicant. As she did so, Ms Anderson claimed the Applicant spat ice at her back. Ms Clarksoneliot's evidence corroborated Ms Anderson's claim that the Applicant spat ice at Ms Anderson.

• [20] In her oral evidence Ms Anderson said she told the Applicant he would no longer be able to work at the hotel if he did not leave his dogs at home, and he refused and at that point she said he would no longer have employment with the Respondent and she turned to walk away and that was when the Applicant spat ice at her.

• [21] I asked the Applicant about the allegation that he spat ice at Ms Anderson. He said Ms Anderson had terminated him. He denied that he spat ice and said he cracked ice between his teeth, and it did hit the back of Ms Anderson.

• [22] On that basis, it seems clear the dismissal occurred in the outside beer garden area prior to the subsequent incident inside the hotel.

• [23] The Respondent contended that as a licensed premises, the Liquor Act 1992 (Qld) ('the Liquor Act') enables the Respondent to have a person removed from the venue if they are unduly intoxicated, behaving in a disorderly way, causing a disturbance to other persons or demonstrating violent behaviour. A person must immediately leave the premises when required to do so under s.165(1) of the Liquor Act. It is an offence for a person to fail to leave a licensed venue when directed to do so by a licensee, approved manager or an employee.

• [24] In accordance with this legal authority, Ms Anderson said she directed the Applicant to leave the venue and the Applicant failed to comply. Ms Anderson said instead, he followed her through the hotel as she moved towards the bistro area continuing to defy her instruction and refusing to exit the premises. The Respondent said this conduct created a highly threatening and intimidating environment for the Respondent's staff. It was claimed the Applicant's pursuit of Ms Anderson, as she attempted to retreat, caused considerable concern for her safety.

• [25] The Respondent alleged that upon leaving the beer garden and entering the bistro area through a door, Ms Anderson was met by another female employee, Ms Ellie Clarksoneliot, who was waiting at the door. To protect Ms Anderson, Ms Clarksoneliot attempted to close the door behind her to place a physical barrier between Ms Anderson and the Applicant.

• [26] It was the Applicant's evidence that he did not follow Ms Anderson into the bistro, and he had to walk that way to exit the hotel. Ms Anderson said it was not necessary for the Applicant to go back into the bistro to leave the hotel, and there is an exit directly from the beer garden to outside.

• [27] The Applicant's evidence was that as he was leaving, Ms Clarksoneliot tried to jam 3 of his fingers in an 80kg safety door, which he pushed out of the way to stop his fingers from being severed. The Applicant said he has never been drunk and disorderly at the premises.

• [28] Ms Clarksoneliot's evidence was that after Ms Anderson walked through the door, she grabbed the bistro door and started to close it so the Applicant could not walk through and get to Ms Anderson. She recalled the Applicant grabbed the door and pulled it towards him as she was trying to pull it towards her to keep it closed. She said the next thing she knew, the Applicant had ripped the door open with one hand and wrapped his other hand around her throat. Ms Clarksoneliot agreed that she had two hands on the door. In her oral evidence, Ms Clarksoneliot said she was scared that the Applicant was going to attack Ms Anderson or herself. Ms Clarksoneliot said the Applicant was aggressive toward staff with or without drinking.

• [29] Ms Anderson said in her oral evidence the Applicant did not push Ms Clarksoneliot away but grabbed her by the throat. Ms Anderson also said the Applicant's fingers were not jammed in the door, and he pulled the door open because he wanted to get to the person on the other side. She said that when he pulled the door open, he grabbed Ms Clarksoneliot's throat with one hand, while he held the door with the other.

• [30] The Applicant said he had his phone in his left hand and his right hand was free. He said it was the hand with the phone, held with two fingers, that was the hand he used with the other three fingers to pull back the door. The Applicant said he pulled the door open and pushed the other employee away to protect his fingers. He denied grabbing her around the throat, but said he pushed her around the top of the chest or throat area to get her off the door.

• [31] Ms Anderson's evidence was that she then yelled at him words to the effect of "get the fuck out of the venue and don't you ever ever come back". The Applicant correctly understood that his employment had been terminated and that he will never be welcomed back to the venue. The Applicant stopped arguing and he left the venue.

• [32] The Applicant submitted that the dismissal was unfair as he was performing his work well and had planted over $500 of his own plants in the garden.

• [33] The Respondent set out that the reasons for dismissal were:

1. Failing to follow a direct order on a number of occasions on the day and the Applicant became very aggressive once approached by this ongoing situation
2. The Applicant's actions resulted in social media comments which put the hotel in disrepute

• [34] The Respondent submitted that the Applicant engaged in conduct that caused serious and imminent risk to the reputation of the Respondent's business, specifically in relation to the animal welfare concerns raised publicly on social media. This conduct was identified and criticised by community members, who named the Applicant as an employee of the Respondent. The Respondent's internal investigation confirms the accuracy of these allegations. This conduct had the potential to significantly damage the Respondent's standing in the local community and brought the business into disrepute.

• [35] The Respondent contended that the Applicant's physical assault of two female employees - one of whom was his manager - constitutes serious conduct. His actions not only amounted to assault but also created serious and imminent risk to the health and safety of a person. The kind of conduct that is relevant need not only be wilful, malicious or intentional conduct but conduct that can imperil or put other employees in the workplace in jeopardy. The Applicant's conduct in this matter was conduct of this kind.

• [36] The Respondent submitted that no extenuating circumstances exist in this case that would negate the validity of the dismissal for serious misconduct:

a) The Applicant was not provoked nor was there any 'threat' to the Applicant that would justify any claim of self-defence.

b) The Applicant had only been employed for a period of seven (7) months and was not a longstanding employee with a history of exemplary service.

c) The Applicant was the sole aggressor. He launched an unprovoked attack on two female employees, including his manager who was undertaking lawful and reasonable management action in response to verified concerns.

• [37] The Respondent outlined that it has an obligation to ensure a safe system of work for its employees. It cannot reasonably be expected to require its female employees to continue working alongside an individual who acted aggressively towards them. Prima facie, the conduct in question was extremely serious and provided a lawful basis for summary dismissal. In such circumstances, continued employment during a notice period would have been unreasonable.

• [38] I am satisfied that the direction of Ms Anderson for the Applicant not to bring his dogs to work was a lawful and reasonable direction in the circumstances. His refusal to comply with the direction was misconduct which provided a valid reason for dismissal.

• [39] The Respondent submitted that the Applicant was put on notice that his conduct was bringing the Respondent into disrepute and creating a serious risk to the business' reputation. He was expressly advised that no further casual shifts would be offered unless he agreed to comply with the Respondent's lawful and reasonable direction to leave his dogs at home when attending work. This communication occurred prior to any decision being made to terminate employment.

• [40] The Respondent accepted that the Applicant was not provided with explicit notification of the valid reason for dismissal relating to the assault of the two female employees prior to the termination taking effect. However, the Respondent submitted that Ms Anderson, acting as the Respondent's representative, was required to make an immediate assessment of the situation as it unfolded before her. Given the severity and immediacy of the Applicant's actions, this component of the termination decision was made contemporaneously with the direction for the Applicant to leave the venue.

• [41] I do not accept this submission of the Respondent, as the evidence reveals that the Applicant had already been dismissed in the beer garden prior to the incident that occurred in the doorway to the bistro area. The notification of dismissal occurred after the Applicant refused to comply with the direction not to bring his dogs to work.

• [42] The Respondent's position was that the Applicant was made aware of the specific concerns held by the Respondent regarding his conduct, particularly the reputational risk posed by the Facebook post. This is not a matter in dispute; the Applicant was shown the post in question and Ms Anderson raised the damage to the business' reputation as the central issue.

• [43] The Respondent submitted that the Applicant was given a full and fair opportunity to respond to that concern during the discussion. The Respondent acknowledges that the Applicant was not afforded an opportunity to respond to the allegation of assault against two female employees prior to the termination decision being made. However, this is because the decision to terminate was made concurrently with the Applicant's conduct, specifically, the moment he grabbed another female employee by the throat.

• [44] The Respondent was of the view that this minor procedural shortcoming should be considered in the broader context and overall matrix of the matter. The nature and seriousness of the Applicant's misconduct were such that no further explanation could have reasonably altered the outcome or mitigated the response required by the Respondent. The failure to put the assaults to the Applicant prior to the decision to terminate must not, on the balance, outweigh the particular seriousness of his misconduct.

• [45] The Respondent urged consideration of the following statement from Senior Deputy President Lacy in De Silva v ExxonMobil Chemical Australia Pty Ltd, PR910623 (AIRC, Lacy SDP, 9 January 2000:

"[75] I agree with this view. In doing so, I note and acknowledge the following statement which is contained in the Explanatory Memorandum to the Workplace Relations and Other Legislation Amendment Bill 1996 (Cth):

7.44. Affording employees procedural fairness in relation to a termination will be relevant in establishing whether or not a termination is harsh, unjust or unreasonable. However, as procedural fairness is to be only one factor to be considered along with other relevant factors, the intention is that undue weight will not be given to procedural defects in a termination."

• [46] For the same reasons as set out above, the submission that the incident around the doorway to the bistro occurred prior to dismissal is not correct, as the dismissal had already occurred at the time of the subsequent incident.

Refusal by the employer to allow a support person

• [47] This consideration is neutral as no request for a support person was made by the Applicant.

Size of enterprise and availability of human resource specialists

• [48] The Respondent contended that at the time of the Applicant's dismissal, the Respondent employed 15 employees, including the Applicant. Whilst this places the Respondent just outside the threshold for classification as a 'small business' under the Act, and thus outside the scope of the Small Business Fair Dismissal Code, the Respondent submitted that the size and operational capacity of the business remain relevant considerations in assessing the procedural steps taken in effecting the dismissal.

• [49] The Respondent said it does not have access to the same resources on hand as a larger business does. The Respondent does not employ dedicated human resource management specialists.

• [50] The Respondent was of the view that despite these limitations, the Respondent maintains that the dismissal process was procedurally fair in all material respects. Any minor procedural imperfections were not significant, would not have altered the outcome and did not result in any identified prejudice or hardship to the Applicant.

• [51] The Respondent submitted that the Applicant's conduct posed a serious and imminent risk to the health and safety of two female employees and created a real risk to the reputation of the Respondent's business. In these circumstances, the Respondent submits that summary dismissal was a proportionate and justified response.

• [52] Having regard to the criteria set out in s.387 of the Act, the Respondent contended that the dismissal of the Applicant was not harsh, unjust or unreasonable. When all relevant circumstances are properly weighed, the factors supporting the fairness of the dismissal outweigh the matter in favour of a finding to the contrary.

• [53] The Respondent referred to the finding of Deputy President Masson in Corry v Australian Council of Trade Unions t/a ACTU [2022] FWC 288:

"[191] In considering the only factor weighing in favour of a finding that the dismissal was unfair, that of the absence of a procedurally fair process, I place significantly less weight on this criteria than the presence of a valid reason. That is because even had the ACTU put the detail of the allegations to the Applicant in a more fulsome manner, I regard it as highly unlikely that a different outcome would have been reached. That is, because the Applicant has, throughout these proceedings, shown no insight into or contrition for his conduct. While strongly pressing his claim to have an unfettered right to espouse his personal views and beliefs outside of his normal working hours, he made no concession as to any obligations he owed to his former employer in respect of those Facebook posts. In these circumstances, I regard it as unlikely that any level of detail put to him during the disciplinary process would have altered his position or that of the ACTU.

[192] It follows from the above that having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust, or unreasonable because there was a valid reason for the dismissal which outweighs those other factors I have identified."

• [54] I am satisfied on the balance of probabilities that the Applicant spat ice at Ms Anderson contrary to his claim that he merely chewed on ice in his mouth and it was projected at Ms Anderson unintentionally. It was claimed by both witnesses for the Respondent that the Applicant spat ice at Ms Anderson. The Applicant conceded that he had ice in his mouth, and it hit Ms Anderson in the back as she turned away from him. The Applicant's version is logically less plausible than the Respondent's version in the context of an angry confrontation, and that it is unlikely the ice could have projected as far as it did on the Applicant's version.

• [55] The Applicant accepted that after Ms Anderson had told him he was dismissed and barred from the hotel he did follow her. He initially claimed this was because it was the only way out of the hotel. I am inclined to accept the evidence of Ms Anderson that he did not need to go through the bistro to leave the premises. On the evidence of the two witnesses for the Respondent it seems far more likely he was pursuing Ms Anderson. Ms Clarksoneliot's evidence was she was scared of what the Applicant may do and that was why she was trying to close the door to prevent him being able to get to Ms Anderson.

• [56] I also prefer on the balance of probabilities that the Applicant did grab the throat of Ms Clarksoneliot as he attempted to enter the bistro area, and did not merely push Ms Clarksoneliot away to prevent his fingers being crushed. He may have been concerned about his fingers being crushed in the door, but the evidence also points to him being angry and aggressive at the relevant time, and he was not merely trying to protect his fingers, he wanted to continue the confrontation with Ms Anderson, and aggressively so.

• [57] This incident, although it occurred in the moments immediately after the termination of employment, and not before is still a relevant consideration. It is not relevant to the consideration as to whether the Respondent had a valid reason at the time of termination, for obvious reasons, but the Applicant's actions clearly point to his conduct after the termination being very serious, and a matter that is relevant to determining whether the dismissal was harsh, unjust or unreasonable. His conduct of grabbing an employee by the throat caused serious risk to the safety of that employee. Further, his conduct toward two female employees, one of whom was his manager, was in breach of any reasonable standard of behaviour that destroyed any prospect of the employment relationship being able to be recovered at any point in the future.

• [58] I have weighed each of the matters I am required to consider in determining whether the dismissal was harsh, unjust and unreasonable. I have determined that the Respondent had a valid reason for dismissal based on the Applicant's refusal to comply with a lawful and reasonable direction. To the extent that it may be considered that the procedure followed in summarily dismissing the Applicant could have been handled in a better way, that is outweighed by the Applicant's clear refusal to follow the direction, and subsequent completely unacceptable behaviour. The application for unfair dismissal remedy is dismissed. An order to this effect will

be issued separately and concurrently with this decision.

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