s.394 - Application for unfair dismissal remedy

[1] Ms Ravid Rom has applied pursuant to s 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. Ms Rom was employed by Team Event Pty Ltd from 17 March 2025 to 12 October 2025. She was employed as the Office Manager, on a full-time basis. She was dismissed for misconduct on 15 October 2025. She claims her dismissal was harsh, unjust or unreasonable and seeks compensation.

[2] Team Event Pty Ltd contests the application. Team Event submits that it had a valid reason to terminate Miss Rom's employment after giving her warnings about her conduct and giving her a chance to respond to those allegations.

[3] Ms Rom represented herself in the proceedings. Team Event was represented by Sharon Filler, Financial Controller. Ms Rom relied upon her own witness statement and the statement of her therapist Maor Zehavi. Team Event relied on witness statements of Rebel Kate Barty, General Manager, Michael Avi Filler, Managing Director, Jamieson Travis, Head of Production and Operations, and Ms Filler. Ms Rom was cross examined. Ms Rom cross-examined Ms Filler and Mr Travis.

[4] On 4 March 2025 Ms Rom signed an employment contract with Team Event Pty Ltd to work as Office Manager. The contract attached a detailed position statement. The position statement described the role as ensuring the office operated smoothly and providing support to all teams and departments across the agency. It included being responsible for leading day to day office operations and providing executive and administrative support as required. Key responsibilities of the role included opening the office in the morning, meeting and greeting clients and visitors, assisting with planning internal social activities, assisting in planning for staff review processes, office community activities, and helping create a positive and fun work environment. It required Ms Rom to act with and demonstrate integrity and honesty both personally and professionally. The contract provided that she was to report to Ms Filler, Mr Filler and Ms Barty. The contract included a 6-month probationary period.

[5] Ms Rom is not an Australian citizen. At the time she commenced employment she was on a working holiday visa which permitted her to work full time. The visa expired on 22 November 2025. Prior to signing her contract, Ms Rom wrote to Ms Filler asking about the company's view on visa sponsorship. This matter was important because Ms Rom said her visa restrictions did not allow her to work with one employer for more than six months. Ms Filler responded that the company is classified as being part of the hospitality industry and the parties had until November to consider visa sponsorship, and should the employment proceed as hoped, the company was happy to discuss the potential of working visa sponsorship. Ms Rom said that arising from these communications she held an expectation that Team Event would sponsor her so that she could continue to work under new visa arrangements after the holiday visa expired. Ms Filler said that she recalled Ms Rom expressing interest in visa sponsorship early in her employment, and the topic was discussed as a possibility in March 2025, but no guarantees were made. She said Ms Rom was told that sponsorship could be discussed later if her employment proceeded as hoped. The email exchange from March confirms the account given by Ms Filler.

[6] Ms Rom commenced work on 17 March 2025. During her employment there were informal performance meetings with Mr Travis about her work. Mr Travis said he tried to conduct those meetings regularly. Mr Travis also worked closely with Ms Rom. He said they had a good working relationship. By reference to what he described as a three-month check-in, Mr Travis said Ms Rom initially had problems settling in but adjusted well after a couple of months. He said he advised Ms Rom to focus on building personal relationships and fostering "fun and friendship" within the team.

[7] On 6 August 2025, Mr Travis and Ms Filler conducted a formal performance review with Ms Rom. Mr Travis described Ms Rom at that time as lacking in a number of areas including engaging with colleagues, and in performing her responsibilities, such as opening the office on time, checking the answering machine, and preparing the office for meetings. Ms Filler stated that at the meeting Ms Rom was reminded of her responsibilities, including being present in the office between 9:00 AM and 5:00 PM, opening the office, checking the answering machine, ensuring fresh milk was available, and informing colleagues when she was leaving the office. Ms Filler said that at the meeting specific goals were set, including making an effort to build personal relationships with colleagues.

[8] Ms Rom described the meeting as a positive and constructive discussion. She stated that her performance review was favourable, with an overall score of 3.7 out of 5, which she said indicated that she was meeting or exceeding expectations. ​ Ms Rom said the feedback from Mr Travis and Ms Filler, was consistently positive. During the review, Ms Rom raised concerns about feeling excluded and isolated at work, which were acknowledged, and there was discussion about steps to better integrate her with her colleagues. Ms Rom's evidence was that she believed the review reflected positively on her work and concerns about her performance were not raised. The documents from the review show an overall positive assessment but include the performance issues referred to by Team Event's witnesses. Team Event contends that despite the feedback in the review, Ms Rom did not make improvements and continued to be difficult with colleagues and to arrive late for work and leave early.

[9] Ms​ Rom said she discussed visa sponsorship with Ms Filler immediately after the review. Mr Travis said that he also spoke to Michael Filler about Ms Rom's visa sponsorship in the days after the review. Mr Travis said that he opposed ongoing sponsorship based on Ms Rom's performance issues, including arriving late, leaving early, and failing to engage with the team. ​ Ms Filler stated that the management team decided against sponsoring Ms Rom's visa due to concerns about her performance and the financial and bureaucratic requirements of sponsorship.

[10] On 13 August, Mr Travis informed Ms Rom that Team Event had decided it would not sponsor her visa. He said he told her it was due to her performance. Ms Rom's account of this conversation was that Mr Travis said that the decision to not go ahead with the sponsorship was the bureaucratic inconvenience and it was still open for discussion. Ms Rom wrote to Ms Filler on 13 August expressing surprise that the company did not want to keep her on after the holiday visa expired. She asked to meet to discuss when her last day in the office would be. There was a meeting on 18 August involving Ms Rom, Ms Filler and Mr Filler. Ms Rom asked that the sponsorship decision be reconsidered. She provided a document entitled "Why Sponsoring Me Makes Sense for TE Short Term Skilled Occupation List (482)" The document listed reasons the organisation would benefit from keeping Ms Rom. It stated that the cost would be minimal because, while fees associated with the sponsorship were legally required to come from the employer, Ms Rom was willing to reimburse the company from her own bank account. It also stated that from her perspective she had personal connection to the community being part of the same Jewish and Israeli community as some of the Team Event leadership. During the meeting, Ms Rom was told that that her performance had not warranted proceeding with the visa sponsorship. The meeting included discussion about the proposal to allow Ms Rom to pay the fees associated with the sponsorship and the company's concern that to do so was illegal and would compromise the business. Ms Rom was also told that if she improved her performance there was a possibility she could remain with the business.

[11] Ms Filler said that Ms Rom's performance did not improve after the meeting as she continued to arrive late and leave early. A number of emails were provided recording late arrivals and early departures during the course of the employment. None of those emails relate to the period between 18 August and the next significant event on 16 September. I do not consider on the evidence that Ms Rom continued to be tardy during that time.

[12] During a meeting on 16 September 2025, Mr Travis spoke to Ms Rom and reconfirmed the decision to not sponsor her visa. He also informed Ms Rom that she had not successfully completed her probation period. He also told her that the company was willing to extend the probationary period until her visa expired on 22 November 2025. ​Ms Rom did not agree to the proposed extension. On 17 September 2025 there was an exchange of emails between Ms Rom and her managers in which Ms Rom expressed surprise that she had not successfully completed her probation and rejected the proposal to extend the probation period. In those emails there was debate about the entitlement of the company to extend the probationary period. The exchange ended with Ms Filler informing Ms Rom that, as she had not successfully completed the probationary period, she could resign or await further communications from Mr Filler.

[13] On Friday 19 September 2025 Mr Filler emailed Ms Rom to clarify that she had failed to address the performance concerns raised previously and to inform her why her probation was unsuccessful. He referred to issues such as lack of initiative, tardiness, failure to complete basic tasks, lack of support for colleagues, and insufficient contribution during an offsite event. ​ The email emphasised the importance of the Office Manager role, encouraged Ms Rom to review the company's values, and requested written confirmation of her work rights in Australia along with a copy of her bridging visa.

[14] Ms Rom responded by thanking Mr Filler for the feedback and requested she be given time over the weekend to reflect on it before providing a detailed response. ​ She confirmed her full working rights in Australia until 22 November 2025 and assured him that her visa would transition to a bridging visa without interruption. ​ Ms Rom expressed her willingness to meet with Mr and Ms Filler to discuss the feedback further and committed to scheduling a meeting for that to happen.

[15] On Monday 22 September 2025, instead of responding to Mr Filler's email, Ms. Rom emailed Team Event's management and HR to formally raise concerns about workplace discrimination, exclusion, bullying, and hostility based on her Israeli nationality. She made a number of complaints, including discriminatory comments about her nationality, military service, and political affiliations; being excluded by being left out of conversations; being mocked for her accent, and being ignored during interactions; insensitive behaviour during team lunches and events; and there being a lack of support during onboarding and training. ​ She said these experiences made her feel unsafe, isolated, and restrained her ability to contribute fully to the team. ​Ms. Rom proposed that the matters be addressed through practical steps such as workshops on inclusivity, cultural awareness education, and open dialogue sessions. She concluded by expressing her commitment to the team and her hope for a constructive resolution to the issues raised.

[16] Team Event acknowledged receipt of the email the same day stating that the matters would be investigated. Ms Filler also sent an email to all staff reminding them of the company's inclusive culture and asking them to refrain from political discussion at work. The leadership team commenced an investigation and assessment of the complaints in the email. There were exchanges of emails with Ms Rom about the complaints and further complaints were received in emails from Ms Rom sent on 26 and 29 September 2025. They were also investigated. On 29 September 2025 Team Event indicated that the complaints had been investigated and made an initial assessment that there had been no incidents of discrimination, bullying, exclusion or hostility. Particulars of those findings were also provided. Ms Rom responded on 1 October 2025 complaining that there had been insufficient time for the investigation to occur and provided further commentary on her complaints. She asked that the investigation process and findings be explained to her, steps be put in place to address the hostility towards her, and that action about her performance issues be postponed. There was then an exchange of emails clarifying the purpose of the meeting and confirming that the performance improvement process would be put on hold.

[17] A meeting was held on 1 October 2025. It had originally been scheduled as a performance management meeting but as the investigation about Ms Rom's complaints was ongoing it was changed to a meeting about the complaints. Ms Rom later complained that the purpose of the meeting had been changed without her knowledge. The meeting involved Ms Rom, Ms Barty and Ms Filler. The meeting was recorded with Ms Rom's consent. Ms Rom also later complained about the recording, asserting that she was pressured to consent. The meeting gave Ms Rom the chance to provide details of her complaints to assist in the investigation. Ms Rom provided further details and made additional complaints. At the conclusion of the meeting Ms Rom was told her further complaints would be investigated and that an update of the progress of the investigation would be provided by 10 October 2025. She was also told that the performance management discussions would not occur while the investigation was ongoing. Following the meeting, Ms Rom sent an email confirming the outcomes.

[18] On 8 October 2025 Ms Barty wrote to Ms Rom informing her that the company was considering terminating her employment on the grounds of misconduct. The misconduct was particularised with 12 matters raised. The allegations included unapproved absence from work, arriving late and leaving early, engaging in non-work-related tasks during work hours, refusal to engage with colleagues, inappropriate conduct, carelessness in duties, disrespectful behaviour, dishonesty, disparaging colleagues, expecting the company to participate in an improper visa scheme, and refusal to follow reasonable directions. Ms Rom was invited to respond to the allegations within 48 hours and was offered the option to take paid leave during this time to prepare her response. The email emphasised that no final decision had been made and that her response would be considered before any action was taken.

[19] On 9 October 2025, Ms Filler emailed Ms Rom with the outcome of the investigation. Attached was a table containing a detailed response to each of the 31 allegations made by Ms Rom in late September and at the meeting on 1 October. The table dealt with specific incidents raised by Ms Rom, such as alleged exclusion, discrimination, bullying, and hostility based on her nationality. It provided detail of each complaint, including the date the incident occurred and the date it was raised. It set out the clarifications provided by Ms Rom during the investigation. It then set out the findings from the management team, which generally concluded that the complaints were unsubstantiated, lacked evidence, or were misinterpretations of events on Ms Rom's part.

[20] Some of the key findings and actions taken by Team Event included that political statements made by colleagues were not directed at Ms Rom; allegations regarding the tone and behaviour of colleagues were unsubstantiated; mocking of Ms Rom's English language skills during a game at a team lunch were not substantiated; Ms Rom was not unfairly excluded from a management WhatsApp group; other incidents of exclusion, inappropriate comments, and hostility were investigated, but no evidence of misconduct was found, some of those incidents attributed to misunderstandings or misinterpretations on Ms Rom's part. The findings also emphasised that support was given as staff were instructed to avoid political discussions and reminded to act courteously.

[21] The document concludes that the complaints were unsubstantiated, but the company committed to fostering a respectful and inclusive workplace. ​ One complaint required further investigation when a staff member returned from leave. ​

[22] On 10 October 2025, Ms Rom responded to the performance email of 8 October 2025 from Ms Barty, addressing each of the allegations of misconduct. She denied the claims and provided detailed explanations for each matter raised, including her reasons for arriving late, using her phone for work-related purposes, and her interactions with colleagues. She rejected allegations of dishonesty, refusal to follow directions, and improper visa-related conduct. Ms Rom emphasised her professionalism, commitment to her role, and positive performance reviews, while raising concerns about procedural fairness and the hostile work environment she had experienced. ​ Ms Rom requested specific evidence to support the allegations, confirmation of receipt of her response, and clarification on the next steps. Ms Barty responded that the matters could be discussed at a meeting on 13 October.

[23] Ms Rom was ill on 13 and 14 October and the meeting about Ms Rom's conduct occurred on 15 October 2025. The meeting involved Ms Rom, Ms Barty, and Ms Filler. During the meeting Ms Rom was informed of her immediate termination due to misconduct. The reasons for her dismissal included unapproved absences, arriving late/leaving early, engaging in non-work-related tasks during work hours, refusal to engage with colleagues, inappropriate conduct, and allegations of attempting to circumvent visa requirements.

[24] Following the meeting, Ms Barty emailed Ms Rom a termination letter detailing the allegations of misconduct, confirming her dismissal, and outlining her final pay entitlements, which included payment for hours worked up to her final day, accrued but unused annual leave, and four weeks' payment in lieu of notice. She was not paid for 15 October 2025. The letter also reminded her of confidentiality, non-disparagement, and post-employment obligations under her contract.

[25] The letter stated the reason for dismissal was misconduct and referred to the following matters:

a) Unapproved Absence: Ms. Rom failed to apply for leave for her absence on 3 October 2025, despite being instructed to do so, which was deemed a failure to follow a lawful and reasonable direction. ​

b) Repeatedly Arriving Late/Leaving Early: She consistently arrived late and left early, failing to adhere to her contractual requirement to be in the office between 9:00 AM and 5:00 PM, despite being addressed about this issue multiple times since 30 April 2025. ​

1. Non-Work-Related Tasks During Working Hours: Complaints were received from staff and management that she spent hours on electronic devices, including social media, during work hours. ​

d) Refusal to Engage with Certain People: She refused to liaise with a colleague working remotely, stating she did not want to work with "hostile people." ​

e) Inappropriate Conduct: She failed to greet others when greeted and walked away from colleagues attempting to engage her in conversation, creating a hostile work environment. ​

f) Visa Scheme Allegations: She allegedly proposed circumventing Australian legal requirements for employer-sponsored visas by reimbursing the company through her Israeli bank account and suggested abusing the appeals process to remain on a bridging visa indefinitely. ​

[26] There followed an exchange of emails concerning the medical proof provided by Ms Rom in support of her personal leave on 13 and 14 October 2025. Team Event raised that the letter relied upon was not signed and was not on a letterhead indicating that it was from a medical practitioner. The letter had been provided by her therapist who was in Isreal. Ms Filler's mother, who speaks Hebrew, rang the therapist to check his qualifications. She did so without Ms Rom's consent. The therapist provided a statement in the proceedings expressing concern that the contact was unprofessional. Ms Rom requested that her sick leave for 13-14 October 2025 be processed appropriately and asked that her therapist not be contacted again. This request was acceded to.

[27] Section 390 of the Act provides that the Commission may order a person's reinstatement, or the payment of compensation to a person, if satisfied that the person was protected from unfair dismissal at the time of being dismissed and the person has been unfairly dismissed.

[28] Section 382 provides that a person is protected from unfair dismissal if the person is an employee who has completed a period of employment of at least the minimum employment period and the person is covered by a modern award, an enterprise agreement applies to the person, or the person earns less than the high-income threshold. It was not contested, and I am satisfied, that Ms Rom is protected from unfair dismissal for the purposes of s. 382.

[29] Section 385 provides that a person has been unfairly dismissed if the Commission is satisfied of four matters; the person has been dismissed, the dismissal was harsh, unjust or unreasonable, the dismissal was not consistent with the Small Business Fair Dismissal Code, and the dismissal was not a case of genuine redundancy. It is clear that Ms Rom was dismissed. I was told that Team Event employs 20 employees, so it is not a small business, and the Small Business Fair Dismissal Code does not apply. The dismissal was also not said to be a case of genuine redundancy.

[30] Ms Rom contends that her dismissal was unfair for the following reasons:

a) It was retaliatory, occurring shortly after she raised formal complaints about workplace discrimination, bullying, exclusion, and hostility based on her Israeli nationality. She believes her complaints were not properly investigated and dismissed without genuine consideration.

b) Her performance was consistently positive, as evidenced by her annual review on 6 August 2025, where she received a score of 3.7 out of 5. She claims that no concerns or warnings about her performance were raised prior to her dismissal, and that performance concerns were only raised after her complaints, which she believes were used as a pretext for her dismissal.

1. It was procedurally unfair, as she was not given valid reasons, warnings, or a genuine opportunity to respond to allegations. She also claims her dismissal was predetermined, citing her computer access being revoked before the dismissal meeting. Additionally, she alleges inadequate notice for meetings, biased investigations into her complaints, and improper consent for meeting transcriptions.

d) She was subjected to discriminatory remarks and exclusion based on her nationality, religion, military service, and accent, which created a hostile work environment and impacted her ability to perform her role effectively.

e) Her privacy was breached when Ms Filler's mother contacted her therapist in Israel without her consent during her sick leave. She also claims her visa-related documents were repeatedly requested despite her providing all legally required documentation.

f) She claims her role was misrepresented at the outset, as promised support from an administrative assistant and interns was not provided. She also alleges Team Event misled her about the possibility of visa sponsorship, which she relied upon when accepting the role.

[31] She seeks compensation in lieu of reinstatement as her dismissal caused her significant emotional distress, financial hardship, and reputational harm. She claims she was forced to apply for a student visa, incurring additional costs and limiting her ability to work full-time. She also claims Team Event failed to pay her approximately $500 in outstanding final entitlements, including payment for time worked on her last day, a public holiday, and an adjustment for annual leave. She seeks compensation for lost income, visa and legal costs, emotional distress, financial hardship, and unpaid entitlements, as well as a professional reference acknowledging her positive performance and contribution. I note that compensation for visa and legal costs, emotional distress, financial hardship, and unpaid entitlements, and an order for a professional reference acknowledging her positive performance and cannot be awarded in these proceedings.

[32] The first issue for determination is whether the dismissal was harsh, unjust, or unreasonable.

[33] Section 387 of the Act sets out the matters that are to be taken into account in determining whether the Commission is satisfied that the dismissal was harsh, unjust, or unreasonable.

[34] The first matter is whether there was a valid reason based on Ms Rom's capacity or conduct (s387(a)). It is clear that the reason for the dismissal was misconduct. I reject Ms Rom's submission that was retaliatory. The concerns about Ms Rom's conduct were raised with her a number of times during her employment. They were discussed in her performance review in August. Then in discussions about her probationary period and her visa also in August. Mr Filler particularised them in his email of Friday 19 September 2025. Ms Rom asked for the weekend to reply to that email. It wasn't until Monday 22 September 2025 that she raised her complaints about various workplace matters. The conduct issues were held over until those matters were investigated. Given the timing of these matters and the fact that the misconduct relied upon for dismissal was that which had been raised before the workplace complaints, I see no basis for the submission that the reason for the dismissal was not valid as it was retaliatory.

[35] Ms Rom's reliance on the score of 3.7 out of 5 as establishing that her conduct did not justify the dismissal is also rejected. The evidence established, and the performance review document confirms, that the conduct issues that led to the dismissal were raised at the time of the review as matters that required improvement.

[36] I find, based on the material before me, that there was a valid reason for the dismissal based on Ms Rom's conduct (s 387(a)). Concerns about her conduct were raised during the performance review in early August. They were raised again in mid-August, when Ms Rom was told she had not passed probation. They were also raised in discussions in late August when she was informed that the company would not sponsor her visa extension. On 19 September 2025 she was provided with particulars of the performance concerns. The evidence of the managers, Mr Travis, Ms Barty and Ms Filler, much of which went unchallenged, supported the allegations of misconduct. I note that not all of the matters relied upon in the termination letter were raised earlier, but most were. Taking the evidence as a whole I find that there was a valid reason for dismissal for misconduct.

[37] Section 387(b) and (c) deal with whether the employee was notified of the valid reason and given an opportunity to respond to the reason. Ms Rom contends she was not given valid reasons, warnings, or a genuine opportunity to respond to allegations. Throughout her employment Ms Rom was notified of the concerns about her conduct. She was given an opportunity to respond and improve. She became aware that Team Events was considering dismissing her for that performance in the email from Ms Barty on 8 October 2025. She was invited to respond to the allegations and was offered paid leave during to prepare her response. The email emphasised that no final decision had been made and that her response would be considered before any action was taken. She responded on 10 October 2025. For the purposes of ss 387(b) and (c) I find that Ms Rom was notified of the valid reason and given an opportunity to respond to the reason.

[38] Section 387(d) is directed to whether the employer unreasonably refused to allow the employee to have a support person present to assist at discussions relating to the dismissal. There was no suggestion that Ms Rom requested or was denied a support person in the discussions about her dismissal. In the email from Ms Barty arranging the meeting to discuss the allegations, Ms Rom was invited to bring a support person.

[39] As the reason for dismissal was misconduct, s. 387(e) is not a relevant consideration.

[40] Section 387(f) and (g) are about to what degree the size of the employer's enterprise was likely to impact on the procedures followed in effecting the dismissal and to what degree any absence of dedicated human resource management specialists or expertise likely impacted the procedures followed in effecting the dismissal. Team Event is a small employer, employing only 20 employees. There was no dedicated human resource manager, the function was shared amongst the management team. The procedures followed here were fair and I find that the size of the business and lack of dedicated human resource management had no adverse impact on the fairness of the dismissal.

[41] Section 387(h) requires that any other relevant matter be taken into account. Ms Rom claims her dismissal was predetermined, citing her computer access being revoked before the dismissal meeting. She alleges inadequate notice for meetings, biased investigations into her complaints, and improper consent for meeting transcriptions. She says that during her employment she was subjected to discriminatory remarks and exclusion based on her nationality, religion, military service, and accent, which created a hostile work environment and impacted her ability to perform her role effectively. She also refers to her privacy being breached when Ms Filler's mother contacted her therapist in Israel without her consent about her sick leave on 13 and 14 October 2025. She claims her visa-related documents were repeatedly requested despite her providing all legally required documentation and that her role was misrepresented at the outset, as promised support from an administrative assistant and interns was not provided. She also alleges Team Event misled her about the possibility of visa sponsorship, which she relied upon when accepting the role.

[42] I do not consider that any of these issues have a significant impact on my consideration as to whether the dismissal was unfair. While it appears that the decision to dismiss was made prior to the meeting of 15 October 2025 and was based on the inadequacy of the lengthy written reply sent on 10 October 2025, I do not consider this to be of any significance. Ms Rom was given the opportunity to address the company about her dismissal at the meeting. As to the allegations of workplace discrimination, I am not in a position to determine those issues. The 31 complaints were dealt with by the company and a lengthy response provided. Ms Rom has re-agitated some of those complaints, but the purpose of these proceedings were to deal with her conduct, not the allegations she made against others. While workplace environment may be a factor in explaining or justifying workplace conduct, the way the matters were raised in this case went more to diverting attention from Ms Rom's conduct to others than to explain her misconduct. The asserted privacy breach does not relate to the dismissal and I consider it irrelevant. Similarly, the assertions about visa-related documents and the unfulfilled expectation that Ms Rom had at the outset of employment that she would be sponsored to satisfy ongoing visa arrangements are not relevant to the dismissal. I am satisfied that no representations were made at anytime.

[43] For these reasons I find that Ms Rom's dismissal was not harsh, unjust, nor unreasonable. There was a valid reason for Ms Rom's dismissal based on her conduct. She was notified and given an opportunity to respond to that reason. She was not denied a support person in discussions about dismissal. The size of the employer did not adversely impact the procedures followed. None of the additional matters raised by Ms Rom convince me that the dismissal was unfair.

[44] Ms Rom's application for an unfair dismissal remedy is dismissed.

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