s.394 - Unfair dismissal

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

• [1] Mr Peter Gazilas was employed as an apprentice carpenter by Key Carpentry and Building Pty Ltd (Key Carpentry) from 30 November 2021 until he was dismissed on 11 December 2024 with effect on 13 December 2024. Prior to the dismissal, Mr Gazilas had been absent from work since 21 October 2024. The director of Key Carpentry is Mr Yanni Docos, who is second cousin to Mr Gazilas.

• [2] On 29 December 2024, Mr Gazilas applied in time for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act) in relation to his employment with Key Carpentry. Mr Gazilas is protected from unfair dismissal because he completed a minimum employment period of at least 12 months; his employment was covered by a modern award; and his annual rate of earnings was below the high-income threshold.

• [3] The dismissal was not a case of genuine redundancy.

• [4] The question is whether I am satisfied that the dismissal was consistent with the Small Business Fair Dismissal Code. If the answer is 'No', a second question arises as to whether I am satisfied that the dismissal was harsh, unjust or unreasonable. For the reasons below, I am satisfied that the dismissal was consistent with the Small Business Fair Dismissal Code. Mr Gazilas has not been unfairly dismissed.

• [5] On 21 October 2024, Mr Gazilas experienced pain in his appendix/groin area. He spoke to his colleague about it, but did not tell his boss, Mr Docos.

• [6] At 6.01am on 22 October 2024, Mr Gazilas sent a message to Mr Docos to say that he had woken up with a sharp pain in his groin area; that it was affecting him the day before; that he didn't think he should come in that day; and wanted to go to the doctors to see what they said. He did not attend for work. Mr Gazilas did go to see his doctor, Dr Toomey, and was given a medical certificate certifying him as unfit for work from 22-23 October 2024. Mr Gazilas did not provide a copy of the medical certificate to Key Carpentry.

• [7] At 8.02pm on 22 October 2024, Mr Docos posted the roster for 23 October 2024. Mr Gazilas was scheduled to start at The Lakes at 7.00am.

• [8] At 9.31pm on 22 October 2024, Mr Gazilas messaged Mr Docos to say that he would not be in tomorrow as he had been to the doctor and had been told to "take the next few days off". He advised of a follow up appointment on 24 October 2024 for review and said if he felt better before then, he would be back into work and would let Mr Docos know.

• [9] Following this advice, Mr Gazilas was not rostered for, and did not attend, work on 24 October 2024. He attended a telehealth appointment with Dr Toomey and obtained a further medical certificate certifying him as unfit to work from 24-25 October 2024 but did not provide a copy of the medical certificate to Key Carpentry.

• [10] At 7.04pm on 24 October 2024, Mr Gazilas sent Mr Docos a message to say he would not be in the next day as he did not yet have clearance to come back to work. He said he was hoping to be better by Monday, and that he would touch base with Mr Docos on Sunday afternoon. Mr Docos replied: "No worries, mate.". When later that evening, Mr Docos sent around the roster for 25 October 2024, it did not include Mr Gazilas.

• [11] At 9.19am on 25 October 2024, Mr Docos tried to call Mr Gazilas without success.

• [12] At 12.46pm on Sunday 27 October 2024, Mr Docos sent a message to Mr Gazilas asking how he was going. He did not receive a reply and followed up at 2.55pm that day. At 4.12pm, Mr Gazilas replied, saying he was still in pain and was going to the doctors tomorrow if he could get an appointment, and that he may get a referral for scans or physio. Mr Docos replied "Ok" and did not roster Mr Gazilas for work on 28 and 29 October 2024.

• [13] Mr Gazilas did not attend the doctor on 28 October 2024. At 5.02am on 29 October 2024, Mr Docos asked Mr Gazilas to send through his extra hours for a job at The Lakes. Mr Gazilas replied but did not say anything about his availability for work that day. Later on 29 October 2024, Mr Gazilas attended Dr Toomey and obtained a further medical certificate certifying that he was unfit for work from 29 October 2024 to 1 November 2024. He did not provide the medical certificate to Key Carpentry. At 5.09pm, Mr Docos tried to call Mr Gazilas without success. He then sent the roster to Mr Gazilas at 9.08pm that evening, showing that he was not rostered on.

• [14] On 30 October 2024, Mr Docos sent Mr Gazilas a message:

• [15] Mr Gazilas did not respond to the message.

• [16] On 31 October 2024, Mr Gazilas sent three medical certificates relating to his absence from work from 22-25 October 2024 and 29 October-1 November 2024 to the email address: admin@keycarpentryandbuilding.com.au. Mr Gazilas usually communicated with Mr Docos by text message or email to the address yanni@keycb.com.au, including for the purpose of submitting timesheets. But the email address used to send the medical certificates had been inoperative for almost two years, after the Microsoft 365 service attached to the domain name "keycarpentryandbuilding.com.au" was cancelled on 6 December 2022. The reason for using this email address instead of the usual communication channels is not explained. Mr Gazilas says he did not receive a 'bounce back' on the email and while this seems unlikely, I cannot be sure. Perhaps it went to his junk mail account. Either way, because the email and attached medical certificates were sent to a defunct email address, they were not received by Key Carpentry.

• [17] On 3 November 2024, Mr Gazilas wrote to Mr Docos to say he had a specialist appointment the next day (4 November 2024) and would have to take the day off, but that he would be "all good for Tuesday" with three 'fingers crossed' emojis. The contents of the message were not true. The evidence of the specialist, Dr Hutton, is that Mr Gazilas first appeared before him on 6 November 2024.

• [18] When Mr Docos wrote to Mr Gazilas at 8.40pm on 4 November 2024 to ask what happened at the specialist, Mr Gazilas replied:

"I went to him and now I'm waiting for results which I should get back Wednesday afternoon. He said we will go from there and see when I can go back to work."

• [19] For the reasons above, the contents of this message were also not true. At the time, no medical certificate covered his ongoing absence from work. Mr Gazilas did not attend for work on 5 November 2024.

• [20] On 6 November 2024, Mr Gazilas attended Dr Hutton for a general examination. No investigations such as blood tests or scans were required. Mr Gazilas was booked in for day surgery on 25 November 2024 for a routine surgical procedure.

• [21] At 7.40pm on 6 November 2024, Mr Gazilas wrote to Mr Docos to say he had been to the specialist that afternoon and that the specialist wanted to perform some other tests. This information was both true (about attending the specialist that day) and not true (about the need for further tests). Mr Gazilas said he would let Mr Docos know by the end of the week. Mr Docos replied:

"Ok, can you send me the specialist certificate

Email it".

• [23] On 7 November 2024, Mr Gazilas went to see Dr Toomey and obtained a medical certificate certifying him as unfit for work from 2-15 November 2024. For reasons that remain unexplained, Mr Gazilas did not provide the medical certificate to Key Carpentry or tell Mr Docos that he was going to the doctor that day, or that he had obtained a medical certificate covering his absence from work until 15 November 2024. He just did not attend for work.

• [24] On 16 November 2024, Mr Gazilas wrote to Mr Docos to say that he was having surgery on 25 November 2024 and that he would need to be off work for 3-4 days for his recovery. He said that he could come to work the week before his surgery, and asked Mr Docos to let him know what he wanted him to do. Mr Docos did not reply.

• [25] On 25 November 2024, Mr Gazilas underwent the surgical procedure performed by Dr Hutton. The procedure is described by Dr Hutton as "a routine day procedure which ordinarily takes 30 minutes". He was given a medical certificate for 25-29 November 2024. Dr Hutton's evidence is that while he did not contemplate whether Mr Gazilas could have returned to work on light duties, the procedure he had undergone did not impede his ability to walk or work, and Mr Gazilas could have worked on light duties or attended education afterward.

• [26] On 1 December 2024, Mr Gazilas sent a message to Mr Docos with an "update...following my follow-up appointment after surgery". Mr Gazilas said he had been told he had an infection; that he needed to take additional time off work until it cleared up; that he apologized for any inconvenience this may have caused; and appreciated understanding while he focused on recovery.

• [27] There is doubt about the truthfulness of this update. Firstly, Dr Hutton's evidence is that it was highly unusual or rare for an infection to occur after the type of surgery performed on Mr Gazilas, and that in his experience, if an infection did arise as a consequence of the surgery, the referring doctor would inform him and he would review the issue because there were various implications from such a result. Dr Hutton does not recall any comment being made to him after the surgery about an infection that had arisen.

• [28] Secondly, the only evidence of any "follow up appointment" in the period between 25 November and 1 December 2024 is a medical certificate dated 29 November 2024. It purports to certify Mr Gazilas as unfit for work from 29 November 2024 to 24 December 2024 and to be given under the stamp of Dr Toomey. Dr Toomey denies issuing the certificate. He points to indications that the document is not genuine, including that the name of the clinic is incorrect and that the signature appearing above his signature block is not his own. Mr Gazilas says he had this medical certificate in his possession at the time he was dismissed, but he cannot explain how it came into his possession. I am not satisfied that the certificate dated 29 November 2024 is authentic. I find that at the time he sent the message to Mr Docos on 1 December 2024, Mr Gazilas had not yet attended any follow up appointment after his surgery. His message to Mr Docos on 1 December 2024 was not truthful.

• [29] On 4 December 2024, Mr Docos wrote to Mr Gazilas asking for some tools to be returned as he needed them that Friday. He said "Also, please keep me updated with your injury.".

• [30] At 11.15am on 5 December 2024, Mr Docos tried to call Mr Gazilas without success. An arrangement was made between them by text messages between 12.59pm and 2.25pm about the return of the tools via another person without any further mention of Mr Gazilas' absence for medical reasons.

• [31] On 11 December 2024, Mr Gazilas' employment was terminated with immediate effect "as of 13 December 2024". The reason given for termination was "failure to provide the required medical evidence to support your absence from work" despite repeated requests and reminders on 30 October 2024 and 6 November 2024.

• [32] On 13 December 2024, Ms Vicki Gazilas contacted the rooms of Dr Hutton and asked for a medical certificate in connection with Mr Gazilas' day surgery on 25 November 2024. Dr Hutton provided a certificate confirming his earlier certified absence from work from 25 to 29 November 2024.

• [33] At 10.19pm on 13 December 2024, Mr Gazilas sent an email to Mr Docos at the email address: yanni@keycb.com.au. He expressed his "confusion and concern" about the decision to terminate his employment while he was "recovering from surgery and facing complications that required additional recovery time". Mr Gazilas asserted that he had "reached out" to Mr Docos multiple times on 22, 24 and 27 October 2024 and on 3, 4, 6, 10, 16 November 2024, and on 1 December 2024 with updates about his condition. He said that despite his efforts to keep Mr Docos informed, he had not received much response from Mr Docos. He also said "I provided medical certificates to support my absence and had intended to deliver any remaining documentation in person when I was able to return to work.". Attached to the email were the medical certificates referred to above, including the medical certificate of 29 November 2024 that I have found to be unreliable. This was the first time that Key Carpentry had been made aware of any medical certificates covering Mr Gazilas' ongoing absence from work.

• [34] On 25 December 2024 (Christmas Day), Mr Gazilas sent an email to admin@keycarpentryandbuilding.com.au alleging underpayment of wages and seeking a review of his entitlements by 8 January 2025. The message bounced back with the error "the domain keycarpentryandbuilding.com.au couldn't be found". Mr Gazilas says this was the first time he realised there may be an issue with the email address. As noted above, this seems unlikely in the sense that if the email address had been inoperative for almost 2 years, there is no apparent reason why it would cause an error message in December 2024 but not in October 2024. But perhaps the first error message went to junk mail. After the error message was received, the email from Mr Gazilas to Mr Docos was resent to yanni@keycb.com.au.

• [35] On 6 March 2025, Dr Toomey provided Mr Gazilas with a further medical certificate statin that he was unfit for work from 22 October 2024 to 24 December 2024 inclusive. The certificate does not assist Mr Gazilas in the present case, because it did not exist at the time Key Carpentry made the decision to dismiss him.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

• [36] Key Carpentry is a small business employer for the purposes of the Act. At the time of dismissal, it had less than 15 employees.

• [37] The Small Business Fair Dismissal Code (the Code) applies to small business employers. Mr Gazilas was dismissed without notice or warning, so that the Code applies as it relates to "summary dismissal":

"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.

...

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity. A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements."

• [38] Mr Gazilas says that throughout his absence from 21 October 2024 until he was dismissed on 11 December 2024, he kept Mr Docos up to date on his absence and condition both by text message and emails. He says he sent Key Carpentry his doctors' certificates by email to admin@keycarpentryandbuilding.com.au. The submissions are not a fair characterisation of what occurred.

• [39] Mr Gazilas did not provide Key Carpentry with evidence that would satisfy a reasonable person that his leave was for the reason that he was unfit for work because of a personal illness or injury. The information he provided was lacking and not always truthful. Further, Mr Gazilas did not always provide notice of the period or expected period of leave, so as to assist Key Carpentry in planning for work in his absence. He did not provide medical certificates to Key Carpentry when he was asked to do so, except for the one attempt on 31 October 2024 which misfired because it relied on an inoperative email address. Mr Gazilas could have sent his medical certificates to Mr Docos as and when they were received, either to Mr Docos' work email address or via a message to his phone. He could have done the same on 30 or 31 October 2024, instead of using the wrong email address. He made no attempt at all to send medical certification to Key Carpentry in the period after 31 October 2024 until he was dismissed.

• [40] At the time of dismissal, I am satisfied that Key Carpentry believed, on reasonable grounds, that Mr Gazilas' conduct was sufficiently serious to justify immediate dismissal. Key Carpentry was busy in the lead up to Christmas. It only had a small number of employees. Mr Gazilas' ongoing absence of more than 7 weeks had placed additional stress on the business, for reasons that were not adequately explained and that were not supported by any evidence at all. There was no indication of when Mr Gazilas was likely to return.

• [41] Mr Docos believed that his requests for, and attempts to obtain, supporting medical evidence by Key Carpentry had gone unanswered. This was a reasonable belief in circumstances where he had not received any medical evidence from Mr Gazilas. He did not know, and could not have known, about the three medical certificates sent on 31 October 2024 because he was not told of their existence until after the dismissal. He did not know of the existence of the medical certificate of 7 November 2024 because it was never provided to him. He thought Mr Gazilas was refusing his requests for medical evidence to support his absence.

• [42] That Mr Gazilas may have intended to provide the certificates to Mr Docos on his return to work does not assist Mr Gazilas. Mr Docos did not know this when he made the decision to dismiss (because Mr Gazilas did not tell him or ask if that was acceptable). Mr Gazilas' communications in this regard did not meet the minimum requirements for personal leave under s.107 of Act (National Employment Standards).

• [43] For these reasons, I am satisfied that the dismissal was consistent with the Code. It was not an unfair dismissal.

• [44] Failure to attend TAFE: Mr Gazilas accepts that he failed to attend TAFE on multiple occasions without telling Key Carpentry of his absence. On many such occasions, he also claimed payment on his timesheet for the day as if he had been at TAFE. This conduct only became known to Key Carpentry after the dismissal. Had it been necessary to consider whether the dismissal was harsh, unjust or unreasonable, I would have found this to be a valid reason for dismissal, although not known to Key Carpentry at the time. However, as the dismissal was consistent with the Code, it is not necessary to consider the matter further.

• [45] Parking fines: Key Carpentry produced evidence of multiple parking fines and one speeding fine, which it said was relevant to the credibility of Mr Gazilas in connection with a comment made long ago about avoiding parking fines on mental health grounds. I have given this evidence little weight as it has no bearing on the conclusions I have reached.

• [46] Constant lateness: Key Carpentry submits that Mr Gazilas was frequently late to work and only provided short notice, which caused an interruption to work schedules. The evidence provided seems to support the submission but is not relevant to the question of unfair dismissal in this case. It was not something Mr Docos thought about when making the decision to dismiss.

• [47] Inability to find other work: There is a dispute between the parties about whether Mr Gazilas has found other work since the dismissal. Given my conclusions above, it is not necessary to consider the matter further.

• [49] Page 311 of the Court Book is confidential and is not to be disclosed by or to any person. Any record of the page made for the purposes of compliance with legislation is to be redacted on the Commission's systems.

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