s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - whether dismissal harsh, unjust and unreasonable - application dismissed - reasons given ex tempore

[1] Ms Renée Darby ("the Applicant") has applied to the Fair Work Commission ("the Commission") for a remedy, alleging that she was unfairly dismissed from her employment with Grace Removals (Australia) Pty Ltd ("Grace Removals" or "the Respondent"). The matters the subject of the application substantially related to Ms Darby's removal of a quad bike from the Respondent's premises, after the quad bike's owner had been told it would be destroyed. The Respondent opposed the application.

[2] The matter involving the quad bike was the subject of criminal proceedings. On 31 July 2025 I adjourned these proceedings until 25 September 2025 pending resolution of the criminal proceedings. On 25 September 2025 Ms Darby pleaded guilty to a charge against her, which had been substituted for an earlier charge. As she wanted to proceed I programmed further directions and listed this matter for hearing on 22 January 2026. At the Respondent's request and with the Applicant's consent, that hearing date was vacated and the hearing was rescheduled to 12 February 2026.

[3] Ms Darby's application for an unfair dismissal remedy was heard on 12 February 2026, on which date I gave an ex tempore decision. For the reasons given in that decision, I decided to dismiss the Applicant's application for an unfair dismissal remedy. The following is the edited text of that decision.

[4] This is an unfair dismissal application made under section 394 of the Fair Work Act 2009 (Cth). It is not in contest that the application was made in time. It is also not in contest that the Applicant was protected from unfair dismissal. There is no argument before me that the Respondent had the benefit of the Small Business Fair Dismissal Code or that the dismissal was for genuine redundancy.

[5] The parties had an opportunity to indicate if they wanted the matter to be heard by determinative conference in their written outlines. No party did that. Having considered the best way to proceed, I decided to proceed by way of hearing. The hearing has been conducted today. Given that the matters that were not in dispute, the matter for consideration today was whether the dismissal was harsh, unjust and unreasonable.

[6] I have heard from the parties today. Ms Darby called herself as a witness. The Respondent called Mr Scott Bartram as a witness. Each party had the opportunity to examine

[7] Having regard to the matters under section 387 of the Fair Work Act, I find that the Respondent had a valid reason to dismiss the Applicant. In that regard, I do not find that the removal of the bike has been established to be a valid reason. The reason I say that is because I accept that Ms Darby thought that she had permission to take the quad bike. I appreciate that the manager concerned - that, sorry, the supervisor concerned was not Ms Darby's line manager or someone in the chain of command above that person directly. Nonetheless, they were a person in a supervisory role with responsibility in the relevant area. I accept that they had given Ms Darby the keys to a particular container and the text messages that are in evidence make very clear that there was an arrangement between Ms Darby and this particular supervisor to collect the quad bike. So the finding of a valid reason is not in relation to the taking of the quad bike.

[8] But I accept that the characterisation to the client was that the quad bike would be destroyed. The subsequent decision, which I appreciate Ms Darby says she took in reliance on an AIMS - on the quarantine direction, but there was a subsequent decision to instead have the bike cleaned. There was just no honesty with the client about the fact that the client's item would not be destroyed and in fact would be retained and cleaned. There was no evidence of any steps being taken to let the client know about that. And the Applicant was just indifferent to giving the client that information. She was very interested in whether she had complied with the quarantine direction, but there was no argument pressed that the quarantine direction non-compliance, if there was any, was part of the reason for termination. And I don't consider any non-compliance or compliance to be relevant to the valid reason question. The relevant issue is the Applicant's conduct in relation to what was conveyed to the client versus what actually happened.

[9] There was also the matter of the way that the difference in the amounts of money was handled. The client was told that the destruction would cost $165 and was invoiced for that amount. The cleaning amount was substantially higher. The Applicant says that that involved a clerical error on her part. Nonetheless, the Applicant pleaded guilty in the Magistrates Court in September 2025 to a charge of fraud in connection with those events and was found guilty accordingly. The Applicant now resiles from her plea and it is uncontested that she is seeking to appeal the guilty finding. But at the moment that finding remains in place, and that's uncontested. So in the face of the Applicant's own admissions about her conduct in respect of what was communicated to the client and what was not communicated to the client about what was going to be the future of the quad bike, and two, the fact that the current state of affairs is the guilty finding in the Magistrates Court, I do not think that I could find other than that there was a valid reason for the termination.

[10] I appreciate that the Applicant says that the charge was not even laid until September 2025, and so it cannot have been taken into account in relation to the termination. That is not what I am saying. I am saying that the conduct had clearly occurred and that the Applicant had later conceded that it was criminal conduct, even though she now seeks to resile from that.

[11] In terms of the issue of whether the Applicant was notified as to the reason for dismissal, it is very clear on the face of the show cause letter of the 13th of January 2025 and the subsequent termination letter of 20 January 2025 that she was notified of the reason.

[12] In terms of whether she was given an opportunity to respond, she was very clearly given an opportunity to respond. It was a short turn around period for the response, but this was not a case where an employee saw a short turnaround period and asked for an extension. She simply failed to respond. She did not seek an extension. She did not respond at all. Having not responded, a termination letter was subsequently issued on the 20th of January. So, I find that the Applicant had an opportunity to respond. As I said to the Applicant before, the Respondent was obliged to provide her with the opportunity, but they weren't obliged to make sure that she took that opportunity.

[13] In terms of whether she was denied a support person, the Applicant was not denied a support person. She was invited, to the contrary, to have a support person at a meeting that was to be conducted on the 13th of January. The meeting did not go ahead because the Applicant indicated that she would not be available for the meeting about an hour before it was about to proceed. So there was no discussion without any support person, but in any event, there was certainly an opportunity to have one.

[14] Paragraph (e) of section 387 is not, in my view, engaged, in these proceedings. Paragraph (f) is not engaged and paragraph (g) is not engaged.

[15] In terms of paragraph (h) the Applicant complains that the company had not informed her directly that she was under investigation prior to taking maternity leave or while she was on maternity leave. I do not consider this renders the dismissal harsh, unjust or unreasonable. I think in a situation where an employer has suspicions about an employee engaging in potentially criminal conduct they have got every right to investigate it without putting the employee on notice at the time. The question, from a procedural fairness perspective, is whether she was then given an opportunity to know what was being put against her and to respond to it. And that was certainly the case, and the show cause letter certainly provided sufficient particularisation to allow her to know what was being said against her.

[16] In terms of the second item, which is bypassing direct line management and disregarding correct escalation process, well, it is difficult for the Applicant to complain about the company bypassing direct line management when she did so herself when she obtained permission - on her case - from a manager or supervisor in a different line to take the quad bike, rather than her own manager. But more to the point, what happened was the person two rungs above her direct supervisor took carriage of this and simply put, there's no reason why the company was not entitled to have that happen, given the seriousness of its concerns.

[17] The next item that Ms Darby raised was differential treatment due to maternity leave history. I do not consider this to have been made out on the evidence. There was a difference with one previous period of maternity leave, where the company had contacted her about something unrelated to this matter. I do not think the difference between that occasion and this occasion was that she was on maternity leave, on some other form of maternity leave, or on a different incidence of maternity leave. The difference is that the thing that she complains about them not contacting her about was the fact that they suspected her of criminal conduct and were investigating.

[18] In terms of the procedural fairness issue, Ms Darby complains that the show cause notice was issued after the meeting was cancelled. It was she who cancelled the meeting and I think it was fair and reasonable for the Respondent to put into writing the allegations against her so that she would have a proper opportunity to respond by knowing what was put against her.

[19] She also complains that they failed to provide supporting evidence relating to the allegations in the notice. I do not consider that this renders the dismissal harsh, unjust or unreasonable. What was important was that they provided her with the allegations with sufficient particularity so that she had a proper opportunity to respond, which they did.

[20] In terms of denial - her next complaint is that the company denied her request to have another active participant in the meeting to be held on the 13th of January. She wanted to bring another person to be an active participant and then a third person to be a support person. The company was not obliged to agree to that. They were happy for her to have a support person, and that's very clear on the documentary evidence that was before me.

[21] In terms of the denial of the full employee file, or causing unnecessary delay along with the threat of legal action, again, the question is whether the allegations were sufficiently particularised to give her the opportunity to respond, which they were in terms of the threat of legal action. There was an ongoing police investigation which resulted in a charge of theft, which was later withdrawn and replaced with a charge of fraud. I don't think it was unreasonable for the company to put the Applicant on notice of the potential for legal action.

[22] In terms of biased behaviour, the Applicant says another consideration is that there was biased behaviour from a number of staff members. In elaborating on this, she referred to the fact that the manager who dismissed her had also been the person who had placed the tracker on the quad bike that was subsequently removed. There was no doubt that [the quad bike] was removed. The question between the parties was whether there was permission or not. The Respondent maintained there was not permission. The Applicant maintained that there was. As I said, I am satisfied on the evidence before me that she thought she had permission. And I also note that the Respondent didn't call the manager who appeared to have given the permission, even though he still worked for them. But back to the question of bias. I do not think that it raises a reasonable apprehension of bias or any basis to find actual bias on the part of the decision maker that he was the person that had had suspicions and had placed the tracker. I think that it's quite clear on the material that he gathered information and then put it to the Applicant for allowing her an opportunity to respond, which she didn't take. I don't think his involvement in the investigation means that there should be an apprehension of bias, just because he was then the decision maker. He was a senior manager. He was, in my view, entitled to be involved.

[23] In terms of compliance with sections 387 to 389 of the Fair Work Act, which the Applicant raised, I have just referred to section 387. I do not consider sections 388 or 389 to be relevant for reasons I've already articulated.

[24] In terms of some new arguments raised today by the Applicant in relation to this matter, I don't accept that there's been inconsistent treatment of the Applicant compared with any other employees. That has not been established. She simply has not established that any other employee engaged in similar conduct. For me to draw any conclusion that there's been inconsistent treatment of them, the closest that she came was pointing to the supervisor who she said provided her with permission in relation to the withdrawal of the quad bike, but there's no evidence that he engaged in misleading or misrepresenting to the client what the future of the quad bike was. It's different conduct. And I don't find that the inconsistent treatment argument is made out.

[25] In terms of Ms Darby's argument that she didn't understand that the show cause might have led to her dismissal, or that she didn't know that she could request an extension, the show cause letter was clear on its face that dismissal was under consideration. In terms of not realising she could request an extension, I find this submission hard to accept and I don't accept it on the basis that if she didn't think she could request an extension it has been completely unexplained why she thought she could simply ignore the letter. But surely she thought she needed to provide some response. And again, it was really up to her to indicate that she contested the allegations, including if she needed more time to consider them. She also could have at that point asked for the evidence if she was determined to see it, though, as I say, the failure to provide it does not, in my view, render the dismissal harsh, unjust or unreasonable.

[26] In terms of her issues about whether there was evidence about discussions with the human resources representative, that really doesn't assist her case in relation to whether the dismissal was harsh, unjust or unreasonable. Again, I find that there was a valid reason for termination, and I find that there was procedural fairness. I don't think that questions about what internal discussions were held or with whom takes the matter particularly far.

[27] I've dealt with the issue of the compliance or otherwise with the AIMS Directive. To the extent that the Respondent and Applicant have raised other issues today, I have listened to the issues that they have raised. Both parties were self-represented and so though I have tried to ensure fairness to both sides, at the same time it is reasonable to try to confine them, at least to some extent, to the basis on which these proceedings were brought.

[28] Ms Darby has not, in my view, been unfairly dismissed within the meaning of that term for the purposes of the legislation. I have weighed all of the factors in section 387 that I have just referred to and canvassed, and I do not find that the dismissal was harsh, unjust or unreasonable.

[29] In those circumstances, I do not find that the Applicant was unfairly dismissed.

And as I do not find that the Applicant was unfairly dismissed, the Applicant's application for an unfair dismissal remedy is dismissed.

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