Fair Work Commission|2025-09-02

Saeid Khayam v George Education Group Pty Ltd trading as WIN College [2025] FWC 2571 (2 September 2025)

s.394 - Application for unfair dismissal remedy

George Education Group Pty Ltd trading as WIN College

Application for an unfair dismissal remedy -whether dismissal harsh, unjust or unreasonable - no valid reason for dismissal - reinstatement not appropriate - compensation ordered

[1] Saeid Khayam is an educator. On 8 February 2023 he commenced employment with George Education Group Pty Limited trading as WIN College ("College").

[2] The College initially employed Mr Khayam as a Teaching English to Speakers of Other Languages ("TESOL") instructor. From 13 March 2023, he began to perform duties as an English Language Intensive Courses for Overseas Students ("ELICOS") teacher at the College. From early April 2023, Mr Khayam was also the Director of Studies for the College.

[3] Between February and July 2024, the College raised with Mr Khayam a number of concerns regarding his performance and conduct. This resulted in the College issuing him with four oral warnings and one written warning.

[4] On 13 August 2024, Mr Khayam had a meeting with Terry Evangelatos, the College's General Manager. Mr Evangelatos told him that as a result of the warnings and other matters, his employment with the College was going to be terminated.

[5] On 19 August 2024, Mr Khayam received an email from the College informing him that his employment as Director of Studies would be terminated as of 30 August 2024. In a further email to Mr Khayam on 23 August 2024, the College informed him that the termination included "casual teaching arrangements". The effect was that Mr Khayam's employment with the College in all capacities came to an end on 30 August 2024.

[6] On 20 September 2024 Mr Khayam filed an unfair dismissal application under section 394 of the Fair Work Act 2009.[1]

[7] I have found that Mr Khayam's dismissal was unfair. I have determined to make an order that the College make a payment of compensation to him of $21,307.70, plus superannuation. These are my reasons.

[8] Mr Khayam filed a large amount of material in support of his application. He did not, however, prepare a witness statement for himself. Instead, he relied on statements by former colleagues at the College and on cross-examination of Mr Evangelatos, the only witness called by the College. This is an observation only, not a criticism; Mr Khayam was self-represented. However, the result of Mr Khayam's approach is that there was no narrative of the relevant events from his perspective. Submissions that he made as to what did or did not happen were often not supported by evidence.

[9] The College cross-examined several of Mr Khayam's witnesses. In the majority of instances, the College suggested to the witness that their statement had been drafted by Mr Khayam and that the witnesses had simply signed it with little or no input. Each of the witnesses rejected this suggestion, and I accept their evidence. While Mr Khayam may have offered suggestions as to what a witness might include in their statement, each witness stated that the statements were their own. In any event, each witness adopted their statement during the hearing and confirmed that the contents were true and correct. The witnesses were available for cross-examination. Even were the statements written with Mr Khayam's pen (which I do not necessarily accept was the case), they became the witnesses' testimony once they were adopted.

[10] That said, the majority of the statements on which Mr Khayam relied were, or were largely, in the nature of testimonials.[2] To the extent that the statements were of that nature, the documents did not assist me to determine the questions arising in these proceedings. I have given them no weight.

[11] The College raised particular concerns with the evidence of Asif Ahmed, the former Student Service Manager at the College. There were two statements from Mr Ahmed in evidence, both largely the same but with one having a little more content than the other.[3] Mr Ahmed gave evidence under cross-examination that he only provided one statement to Mr Khayam. In most respects, this is of little consequence - Mr Ahmed's statement is largely a testimonial of the kind to which I have already referred.

[12] However, why there were two documents in evidence was not satisfactorily explained. The College submitted that an inference could be drawn that Mr Khayam "altered the statement".[4] That inference is certainly available. I have had regard to the College's submission, but it does not greatly affect my decision.

[13] The College relied on a statement by Mr Evangelatos. He was subjected to extensive cross-examination. His evidence was not always reliable: there were some inconsistencies in his testimony and his recollection was occasionally shown to be inaccurate. Also, he gave evidence that he was "the sole decision maker in arriving at the decision to dismiss" Mr Khayam.[5] At times, his evidence under cross-examination appeared to be coloured by a desire to defend that decision. However, it was my view overall that he was doing his best to assist the Commission.

[14] I have assessed the witnesses' evidence in part from my observations of their demeanour whilst giving evidence. I have placed particular reliance on the contemporaneous documents provided by the parties.

[15] In this context, it is convenient to deal with issues arising in respect of a particular category of documents in the College's evidence, that is, copies of diary notes that Mr Evangelatos said that he took during certain meetings with Mr Khayam. The significance of those diary notes to the College's case will become apparent. Mr Khayam submitted that I should reject them. He contended variously that he did not attend the meetings to which the diary notes refer, that the notes were not taken in his presence (as Mr Evangelatos stated), or that the notes had been fabricated.

[16] I do not accept those submissions. First, Mr Khayam did not provide a statement putting the fact or content of the relevant meetings into contest. Second, Mr Khayam did not properly challenge Mr Evangelatos as to the authenticity of the diary notes. Third, and similarly, the serious assertion that Mr Evangelatos had fabricated the diary notes was not put to him.

[17] The upshot is that I have accepted that Mr Evangelatos made the diary notes contemporaneously in meetings with Mr Khayam. That is not to say, however, that they are necessarily evidence that the assertions about Mr Khayam's conduct or performance in the diary notes were properly grounded. The substance and effect of the diary notes are matters to which I will return.

[18] Before considering the merits of Mr Khayam's application, I am required to decide four matters:[6]

(1) whether Mr Khayam's unfair dismissal application was made within the statutory time period;[7]
(2) whether Mr Khayam was a person protected from unfair dismissal;[8]

(3) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and

(4) whether the dismissal was a case of genuine redundancy.[9]

[19] There was no controversy about any of these matters. I find that: Mr Khayam filed his unfair dismissal within the statutory time period;[10] Mr Khayam was a person protected from unfair dismissal; the College was not a small business employer at the time of the dismissal[11] and so the Small Business Fair Dismissal Code is not applicable; and, the dismissal was not a case of genuine redundancy.

[20] Turning to the merits of the application, a person will have been unfairly dismissed if the Commission is satisfied of four things:[12]

(2) the dismissal was harsh, unjust or unreasonable;

(3) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(4) the dismissal was not a case of genuine redundancy.

[21] Given my earlier findings, the only matter left to be determined is whether Mr Khayam's dismissal was harsh, unjust or unreasonable.

[22] In determining that question, I am required to have regard to certain criteria, namely:[13]

(1) whether there was a valid reason for the dismissal related to Mr Khayam's capacity or conduct (including its effect on the safety and welfare of other employees);

(2) whether Mr Khayam was notified of that reason. The reference to "that reason" is to the "valid reason" to which the first criterion refers;[14]

(3) whether Mr Khayam was given an opportunity to respond to any reason related to his capacity or conduct;

(4) any unreasonable refusal by the College to allow Mr Khayam to have a support person present to assist at any discussions relating to dismissal;

(5) if the dismissal related to unsatisfactory performance by Mr Khayam - whether he had been warned about that unsatisfactory performance before the dismissal;

(6) the degree to which the size of the College's enterprise would be likely to impact on the procedures followed in effecting the dismissal;

(7) the degree to which the absence of dedicated human resource management specialists or expertise in the College's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(8) any other matters that the Commission considers relevant

[23] I am required to consider those criteria to the extent to which they are relevant to the case before me.[15] I will address them in turn.

Whether there was a valid reason for the dismissal

[24] In order to be a valid reason, the reason for the dismissal should be sound, defensible or well founded. It should not be capricious, fanciful, spiteful or prejudiced.[16] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it were the employer.[17]
[25] Mr Evangelatos gave the following evidence:[18]

"31. On 13 August 2024, I met with the Applicant to advise him that I was considering terminating his employment because the Applicant ('the Conduct Issues'):

a. had not been providing students with sufficient support, resulting in the Melina Complaint, Mirena Complaint, the Training Complaint and the Marques Complaint;

b. had been providing students incorrect information;

c. had consistently been late to work and had not improved in this area, particularly on Mondays at the cost of disrupting the student services team. ...

d. clearly had interpersonal issues with other staff including Jacob and Nathalia resulting in the Nathalia Complaint; and

e. repeatedly had failed to provide update student results to be entered in the management system.

35. I was the sole decision maker in arriving at the decision to dismiss the Applicant. I arrived at the decision to dismiss the Applicant because of the Conduct Issues."

[26] The College submitted that the conduct in which Mr Khayam engaged was in breach of its Staff Code of Conduct Policy. It placed significant reliance on the contention that between 16 February 2024 and 29 July 2024, Mr Khayam was issued with five "warnings". All but one of those warnings were given orally by Mr Evangelatos to Mr Khayam. The oral warnings are evidenced by the diary notes to which I have referred.

[27] Before considering the "Conduct Issues" described by Mr Evangelatos,it is necessary to make two preliminary observations.

[28] First, I do not accept Mr Evangelatos's evidence that at the meeting on 13 August 2024 he told Mr Khayam that he was "considering terminating his employment". It is clear from the evidence that by that time the decision to dismiss had been made.

[29] Mr Evangelatos's file note of the meeting states:

"Verbal warning to advise of his termination of employment. Explained reasons."

[30] When cross-examined on that diary note, Mr Evangelatos stated:[19]

"...I confirmed the reasons why your employment was going to be terminated. So maybe I wrote verbal warning there because - just to explain the reasons why of your termination of employment, explain the reasons."

[31] Second, I have some reservations as to the weight to attach to the fact of the oral "warnings" that Mr Evangelatos gave to Mr Khayam (I will return to the basis on which they were issued). During his cross-examination, I asked Mr Evangelatos what they were intended to convey. He said that they were not disciplinary actions in themselves, but were designed to put Mr Khayam on notice that if he did not improve there may be consequences. However, neither the diary notes nor Mr Evangelatos's written evidence explain how that message was conveyed. There is in particular no evidence of Mr Evangelatos telling Mr Khayam in the relevant meetings that his employment was at risk if his conduct and performance did not improve.

[32] I also note that in his file note of the meeting of 13 August 2024, Mr Evangelatos used the term "verbal warning" as being equivalent to "explain the reasons". This suggests some fluidity in what Mr Evangelatos took "warning" to mean.

[33] In the course of Mr Evangelatos's testimony, it became apparent that he is not well-versed in human resources management. That is an observation, not a criticism. He also gave evidence that he had limited human resources support within the College. On the evidence, I am not convinced that Mr Evangelatos's use of the term "warning" in his file notes is to be taken as having been used deliberately to convey that Mr Khayam had been told that his employment was at risk if he did not improve.[20] It is perhaps significant in this regard that in its written submissions, the College described the warnings as constituting "counselling".[21] I have considered the weight to attach to the oral warnings having regard to these matters.

[34] I will turn now to the "Conduct Issues" on which the College relied to dismiss Mr Khayam. I will do so by reference to the various incidents and issues to which Mr Evangelatos referred in his statement, largely in the chronological order in which they arose.

[35] In his statement, Mr Evangelatos gave the following evidence:

"4. On 14 February 2024, I attended a meeting with the Applicant and student, Oriana Sanchez. At the time, Oriana was enrolled to complete her Certificate and Diploma in Teaching English to Speakers of Other Languages (TESOL). Oriana's Diploma start date was 15 January 2024, approximately a month prior. At this meeting I learned that the Applicant had not provided Oriana with the necessary documentation that she required to commence her course. I therefore directed the Applicant to urgently provide Oriana all the appropriate documentation for her training but by at least 16 February 2024.

5. On 16 February 2024, the Applicant advised me that he had not provided the student all the documentation as had been agreed on 14 February 2024. I directed the Applicant again to contact the student to fix the issue and to report back to me by 23 February 2024. I explained to the Applicant the importance of the student's course start and end date, which are crucial for international students on student visas, and that the student had complained about being 'upset' and 'lost'. It was unacceptable that the Applicant had not followed my direction and so I issued him a verbal warning during this conversation ('the First Warning'). ...

6. On 23 February 2024, I met with the Applicant seeking an update on Oriana. The Applicant advised me that he had still not contacted Oriana, let alone provided her with the documentation I had asked him to. I again directed the Applicant to complete his duties including preparing a study plan for Oriana, outlining the work she needed to hand in with due dates and to immediately provide it to Oriana. I issued the Applicant a further verbal warning ('the Second Warning'). ..."

[36] There is nothing in the first warning regarding a failure by Mr Khayam to follow a direction. The diary note of the meeting of 16 February 2024 describes the "verbal warning" in these terms:[22]

"To know what is required as he gave the student the wrong information which lead [sic] to student getting upset and lost."

[37] The "wrong information" was said to be that Mr Khayam told Ms Gracia that she could not commence her Diploma in TESOL as she had not completed her Certificate IV. This was apparently incorrect, as Ms Gracia could meet Certificate IV requirements in the course of completing the Diploma, if it was properly arranged.

[38] The diary note of the meeting of 23 February 2024 describes the second warning as: "To Saeid to complete his duties."[23]

[39] Ms Gracia gave evidence in the proceedings. She stated that "[a]t no point did Mr Khayam provide me with incorrect information".[24] Under cross-examination she stated: "I have never complained to anyone about him".[25] She denied telling the College that she felt "lost and scared".[26] After Ms Garcia had been cross-examined and re-examined, I had the following exchange with her:[27]

"THE COMMISSIONER: Ms Gracia, forgive me for weighing in, but I just want to make sure I understand the chronology. As I understand, you discovered that there was a problem with - that the college may not be offering the diploma course, and that was late '23; is that right?‑‑‑Yes. December.

And you sent an email to student services asking what's going on, and you didn't get a response?‑‑‑No. Because it was break time already for them.

Yes. Okay. And so that led to a meeting being arranged on 14 February?‑‑‑Exactly.

The one that we have talked at some length about today already?‑‑‑Yes.

And Mr Hooper put some questions to saying that it was agreed at that meeting that Mr Khayam would provide you with certain documents. And I thought I heard you say that your recollection is that it wasn't so much documents as information about what steps you needed to take in order to get recognition of prior learning; is that right?‑‑‑Yes. That's correct.

And so what happened immediately after the meeting? So the meeting is on 14 February?‑‑‑Mm-hm.

What was your - after that meeting concluded, when was your next conversation or interaction with Mr Khayam?‑‑‑So it was right before we finished.

Okay?‑‑‑But I don't remember when was the following time when we last talked. I think it was two weeks after - - -

No. I think you're getting ahead of me. Sorry. You're getting ahead of me. I thought - this is why I'm just clarifying this, because there was the meeting with Saeid and Terry?‑‑‑Mm-hm.

But then you have talked about having another conversation with Saeid in which he talked you through what you needed to put together, your lesson plans, the supporting information, and the like. What I'm trying to work out is when, after that conversation, did you speak to Saeid about those things?‑‑‑It was immediately after. So we left the office, and then we were in the hall and I asked him.

Was there anything at that point, insofar as what had been discussed at the meeting, was there anything that you were waiting on that had been discussed that Mr Khayam was going to provide to you?‑‑‑No.

So then you worked on putting your lesson plans and supporting documentation together?‑‑‑Exactly.

And that took place over a period of time. You don't recall exactly how long?‑‑‑No. I'm sorry.

And then you provided that to Mr Khayam?‑‑‑Yes. I did.

And so when - okay. So when you said before - Mr Hooper asked you a question and said that after the meeting on 14 February, going back to that - I heard you say - Mr Hooper put a question to you which was like a week or two later you did something. What was that a reference to?‑‑‑I went to the college, because I wanted to check if the lesson plans - because I have already created, like, some lesson plans. Before the meeting, I didn't know I needed lesson plans. And I was showing Saeid if those were okay. And also I was asked to have a letter of employment ready, and I showed him if that was okay, but he told me that I needed more, because I needed to mention, like, my duties as a teacher. And another thing that I had to, like, get everything done. Yes. So that that was like the couple of things. Yes."

[40] On the evidence, I do not see that there was a basis for Mr Khayam being issued with either the first or second warning. While Ms Gracia said that the circumstances led to her "freaking out",[28] the evidence falls short of demonstrating that Mr Khayam was the cause. Ms Gracia did not consider that Mr Khayam gave her incorrect information. To the extent that he did so, it seems hardly to have warranted a warning at all. As to the second warning, as vague and imprecise as it was, Mr Khayam appears to have "completed his duties".

[41] In his statement, Mr Evangelatos gave the following evidence:

"9. On 9 May 2024, I was forwarded an email from a student named Mirena Rais. The email complained that the Applicant ('the Mirena Complaint'):

a. had not, for the entire year, provided the student with due dates or submission warnings for 9 assessments;

b. had asked the student for $500 at a café off campus per each late assessment (despite there being only a $100 penalty for late submissions); and

c. had still not graded the student's submissions."

[42] In considering the significance to be attached to the "Mirena Complaint", I have considered three matters. First, the College suggested that Mr Khayam was to be criticised for meeting Ms Rais in an off-campus coffee shop. The high point of the College's case in this regard was the following evidence given by Mr Evangelatos under cross-examination:[29]

"Okay. Why would you say that it was improper student discussions?‑‑‑Well, when I (indistinct) meaning we don't take students out of the College to have - to have conversations. They stay in the College. So because obviously, in the student's eyes, that was improper, as stated in her email."

[43] Ms Rais did not state in her email that she thought it improper that Mr Khayam met her off-campus. Her concern was being asked to pay a "high unofficial fee".[30] I do not consider the location of the meeting to be of any consequence.

[44] Second, Mr Khayam contended that he would not have requested a late submission fee from Ms Rais. He drew my attention to an email he had sent to Ms Rais the day after the meeting, which purportedly confirmed the advice he had given to her at the meeting: that the College could provide only a statement of attainment for the units Ms Rais had successfully completed.[31] Mr Khayam submitted that the document showed that he had made it clear that further assessments would not be accepted, so the question of late submission and any resultant fees would not have come up.

[45] On the face of the email, there is some force to that submission, but it only gets Mr Khayam so far. Ms Rais complained that he requested a late submission fee. In the absence of direct evidence from him as to what took place during his meeting with Ms Rais, I am unable to resolve the apparent inconsistency between her description of the meeting and the email Mr Khayam sent to her the next day.

[46] But in any event, and third, the proposed late submission fee of $500 per assessment was in line with the College's Reassessment Policy. The controversy arose from the fact that under the terms of her contract with the College, Ms Rais was only liable for a fee of $200. The College's criticism of Mr Khayam is that he did not know that. However, it did make out the basis for that criticism.

[47] The College relied on a statement by Mr Evangelatos that "educators always remind the students at the beginning of each term about the reassessment fee so the students will be able to resubmit on time".[32] However, that statement came immediately after Mr Evangelatos stated that he was not at the College at the time of Ms Rais's orientation. In that context, a statement as to what educators "always" do is of little assistance. I also note that Mr Evangelatos quoted the incorrect figure in his statement.

[48] In his statement, Mr Evangelatos gave the following evidence:

"11. On 15 May 2024, I was forwarded a summary of a complaint from a student named Marques Martins. The student had complained to the marketing team about the learning process, the progression process, the exit test and the lack of academic organisation she received, which she said had affected her learning ('the Marques Complaint'). ...

12. The Applicant's duties were to regularly monitor and evaluate the processing by maintaining a record system and organisation in the ELICOS section of the College. The Marques Complaint therefore complained of matters that the Applicant had responsibility over."

[49] Mr Khayam did not directly challenge Mr Evangelatos on this evidence.

[50] In his statement, Mr Evangelatos stated:

"13. A student named Luzanyury had sustained an injury and had provided us with advice from their physiotherapist which included implementing a longer study plan which allowed for higher incidents of repetition to support memory recovery. On 10 May 2024, I had met with the Applicant and directed him to develop this plan. ...

14. On 21 May 2024, I met with the Applicant to discuss the progress of this plan. The Applicant informed me that he had not completed the plan because there 'was no need - she can just come to classes'. I explained to the Applicant that this is not what had been asked of him and not in line with the advice from the physiotherapist. I issued the Applicant a further verbal warning for failing to complete the plan ('the Third Warning'). ..."

[51] Mr Evangelatos's diary note of the meeting on 21 May 2024 contains the following:[33]

"Saeid got a verbal warning as he did not complete the study."

[52] Mr Khayam did not substantially challenge Mr Evangelatos on that evidence.

[53] The fourth warning arose from a meeting of the College's management team on 12 June 2024. It related to an alleged exchange during that meeting between Mr Khayam and Jacob Munday, then the College's Academic Manager. In his statement, Mr Evangelatos gave the following description of events:

a. the Applicant expressed his disagreement with Jacob regarding a professional development session.

b. The Applicant then became loud, agitated, arising from his chair, pointing across the table at Jacob. This completely derailed the meeting.

c. It was apparent to me that the Applicant's conduct was making others in the room uncomfortable. I cautioned both the Applicant and Jacob so that the meeting could continue."

[54] The following day, Mr Evangelatos wrote a letter to Mr Khayam. This is what it described as the "Fourth Warning". The letter stated in part:[34]

"Your outburst during yesterday's management meeting was embarrassing, unprofessional and uncalled for. A person that holds a management position, ELICOS DOS, as yourself, should have more control and consideration for other team members especially our CEO, Cindy Xu.

You are reminded that these kind of actions are not acceptable in any level and are dealt with severe consequences.

Please be aware that this is a formal step in the WIN College's progressive discipline process.

Failure to make appropriate corrections will lead to further discipline, up to and including dismissal."

[55] A recording of the meeting of 12 June 2024 was in evidence. It does not reflect the description that Mr Evangelatos provided, or warrant Mr Khayam's conduct being described as an "outburst" which was "embarrassing, unprofessional and uncalled for". The recording did not reveal that Mr Khayam became loud. In fact, only Mr Munday raised his voice. Further, after the exchange between Mr Khayam and Mr Munday, the meeting progressed for approximately another 10 minutes and all agenda items were dealt with. This does not suggest that the meeting had been "derailed". Finally, towards the end of the meeting there was a jocular exchange between Mr Khayam and the College's CEO, Cindy Xu. That was not reflective of others in the meeting being "uncomfortable". In answers to questions from me, Mr Evangelatos largely conceded these matters.

[56] In re-examination, Mr Evangelatos expanded on his version of events to suggest that during the meeting, Mr Khayam had left his chair and had been walking backwards and forwards (as he had done several times during his cross-examination of Mr Evangelatos). I was not persuaded by that evidence. He had earlier in cross-examination given a demonstration of what he said Mr Khayam had done, which was no more than rising slightly from (but not leaving) his chair, and pointing.

[57] I note for completeness that in his closing oral submissions, Mr Khayam stated that he did not receive the letter of 13 June 2025. Once again, though, he did not lead evidence to that effect. Further, Mr Khayam did not suggest to Mr Evangelatos that he did not provide the letter to him.

The "Training Complaint" and the "Nathalia Complaint"

[58] In his statement, Mr Evangelatos gave the following evidence:

"22. On 8 July 2024, I met with Nathalia Lucas (Marketing). During the meeting, Nathalia explained that she had received notification from a student's agent via WhatsApp, complaining about the Applicant's General English training ('the Training Complaint'). The student's agent stated in their message that Applicant resorted to playing movies as class and concluded that the teacher was very inexperienced. As a result, the student had requested to cancel his enrolment with the Respondent. ...

23. Nathalia herself then proceeded to complain about the Applicant, which included that the Applicant:

a. had treated her with a lack of respect, had bullied her and had harassed her;

b. had caused her to lose her sense of self-esteem;

c. had caused her to feel threatened in the workplace, and intimidated; and

d. had caused her to take a few days of personal leave as respite.

24. Nathalia then explained that she wanted to resign as a result of the Applicant's treatment of her. In response, I told Nathalia I would organise a meeting with the Applicant to discuss these issues and asked Nathalia to reconsider her resignation.

25. On 9 July 2024, I attended a meeting with Andrew Zhu and the Applicant. The purpose of this meeting was to understand what had occurred in the Applicant's classes for the student to make the Training Complaint and question the Applicant on the alleged treatment towards Nathalia Lucas.

26. The Applicant, instead of taking accountability or providing reasonable explanation, claimed that Nathalia Lucas had encouraged students to make complaints against the Applicant. In response, I explained to the Applicant that we have a duty to follow up on all concerns raised, so we can evaluate our training and assessment methods for continuous improvement.

27. Nathalia provided the Respondent her notice of resignation on 9 July 2024."

[59] Mr Khayam did not substantially challenge Mr Evangelatos on that evidence.

[60] In his statement, Mr Evangelatos gave the following evidence:

"28. On 16 July 2024, I was forwarded another complaint by email involving the Applicant from a student named Melina Piccini. This complaint had been sent student services team and stated that the student had not been informed of missing paperwork resulting her not being provided her Certificate, which she had needed on 3 July 2024 for her VISA ('the Melina Complaint'). ...

29. On 30 July 2024, I met with the Applicant to discuss:

b. The alleged conduct of the Applicant against Nathalia.

30. The Applicant's response to the Melina Complaint was 'I thought Melina Piccini was studying Certificate IV of TESOL'. I issued the Applicant another verbal warning for failing to follow proper procedures ('the Fifth Warning')."

[61] Mr Evangelatos's diary note of the meeting shows that the fifth warning had two parts. The first was said to be for the following (reproduced verbatim):[35]

- Did not follow procedures
- Did not explain to the student regarding her COE[36]
- Did not know that the student was studying Diploma
- Did not update results"

[62] Significantly, Mr Khayam produced a document titled "International Student Orientation Acknowledgement", that appears to have been signed by Mr Khayam and Ms Piccini on 13 July 2023.[37] That document refers to Mr Piccini undergoing a "TESOL Cert IV orientation". That is consistent with the response that Mr Khayam gave in the meeting on 30 July 2024. This calls into question the substance of the fifth warning, to the extent it was premised on the "Melina Complaint".

[63] The second part of the warning was in these terms:[38]

"Verbal warning regarding his behaviour towards staff members

- 2 employees resigned due to his attitude and behaviour
- Needs to improper [sic]"

[64] It seems uncontroversial that this warning related in part to the "Nathalia Complaint". However, other than a reference in Mr Evangelatos's oral testimony to a "Candy", there is no evidence as to the identity of the second employee to whom the warning relates, and the circumstances in which they came to leave the College.

[65] Mr Evangelatos provided a spreadsheet recording the times at which Mr Khayam attended for work between July 2023 and August 2024. He also provided screenshots of text messages he had received from Mr Khayam in which Mr Khayam advised him he would be arriving late to work. He stated that as a result of a number of late attendances in March and April 2024 he "began to grow concerned with the Applicant's punctually as the Applicant's lateness were mainly on Mondays, being the most crucial day as the Respondent required the Applicant, Director of Studies, to be present to conduct the orientation and induction procedures."[39] Mr Khayam was late to work again on 13 May 2024.

[66] Mr Evangelatos stated that on 4 June 2024, he attended a meeting with Mr Khayam and Andrew Zhu, the College's Campus Manager. He said that during this meeting he told Mr Khayam, amongst other things, that he must "complete inductions with student, including by being punctual".[40] There is no reference to that direction in Mr Evangelatos's diary note of the meeting.

[67] Arman Tadi was the College's Head of Academics at the time of Mr Khayam's recruitment. He gave evidence of the negotiations leading to Mr Khayam becoming Director of Studies. He stated that one of the matters which had been negotiated was that Mr Khayam "was entitled to begin and end his working day at his discretion provided that he worked his contracted weekly hours in order to maintain his work-life balance".[41] That evidence was not challenged in cross-examination.

[68] Mr Evangelatos identified five categories that made up the "Conduct Issues" on which he relied to dismiss Mr Khayam.

[69] The first was that Mr Khayam "had not been providing students with sufficient support, resulting in the Melina Complaint, Mirena Complaint, the Training Complaint and the Marques Complaint".[42] For the reasons set out above, I do not think that the "Melina Complaint" or the "Mirena Complaint" had substance.

[70] I am mindful that Mr Khayam did not directly or meaningfully challenge Mr Evangelatos on his evidence regarding the "Training Complaint" and the "Marques Complaint". However, allowing for the fact that he was self-represented, I make the following observations.

[71] The evidence led by the College does not allow for an assessment of the "Training Complaint" beyond the fact that it was made. The only details are that a student complained that Mr Khayam played movies in class and that they concluded that Mr Khayam was "very inexperienced". I am unable to determine whether the playing of movies in class is of itself a cause for concern. Further, I cannot see what possible weight the College could have given to the student's opinion regarding Mr Khayam's experience.

[72] Similarly, other than the fact that the "Marques Complaint" was made, it is difficult to know what to make of it. I could infer that the College concluded that the complaint was properly made, in the sense that it had substance, but the College did not lead that evidence. In any event, the high point of the College's evidence was that the complaint related to matters over which Mr Khayam had responsibility. The College did not point to any particular failing by Mr Khayam.

[73] The second category was that Mr Khayam "had been providing students incorrect information".[43] Mr Evangelatos did not particularise the incidents on which he relied to form that view. It would seem to be based in part on the "Mirena Complaint" and the "Melina Complaint" (about which I need say no more), but also on the circumstances involving Ms Gracia which resulted in the first and second warnings. For the reasons set out above in respect of those warnings, I do not consider that they had substance.

[74] The third category related to Mr Khayam's punctuality and his repeated late attendances at work. Although there was no evidence of Mr Khayam's hours of work, he did not dispute that he frequently arrived after his starting time. However, I accept his submissions that this must be viewed in the context of Mr Tadi's unchallenged evidence regarding the terms on which it was agreed that Mr Khayam would take up the Director of Studies position.

[75] The fourth category asserted that Mr Khayam "clearly had interpersonal issues with other staff including Jacob and Nathalia resulting in the Nathalia Complaint".[44] Mr Khayam did not significantly challenge Mr Evangelatos's evidence regarding the "Nathalia Complaint", although once again the College's evidence as to the substance of that complaint was put at a very high level.

[76] The only suggestion of conflict between Mr Khayam and Mr Munday was in the management meeting on 12 June 2024, but in that incident it was Mr Munday who sounded like the aggressor. Nothing in the recording suggests that Mr Khayam ought to take responsibility for Mr Munday's behaviour during the meeting. To the extent that it evidenced "interpersonal issues", they were not clearly Mr Khayam's fault.

[77] Mr Evangelatos produced a statutory declaration by Yanxuan Zhou, who described himself as the former Director of Studies at the College. It is dated 1 December 2024. Mr Evangelatos could not explain how it came to be made. The declaration makes a number of allegations against Mr Khayam. However, it says nothing about those matters ever having been raised with College management. Mr Evangelatos gave no evidence that he was aware of Mr Zhou's allegations prior to dismissing Mr Khayam. In the circumstances, I have given the declaration no weight.

[78] Otherwise, apart from a fleeting reference to a "Candy", there was no evidence of Mr Khayam having "interpersonal issues" with "other staff", or that he was blameworthy for them.

[79] The final category was that Mr Khayam had repeatedly "failed to provide update student results to be entered in the management system" [sic].[45] It is difficult to know what Mr Evangelatos is referring to. The strongest evidence is the reference in the fifth warning to "Did not update results". The evidence falls short of demonstrating that this was a repeated failure.

[80] I note for completeness that it is not clear from paragraph 31 of Mr Evangelatos's statement (reproduced at [25] above) that the third warning was one of the "Conduct Issues" on which he relied to dismiss Mr Khayam.

[81] Of the "Conduct Issues", only the "Marques Complaint", the matters giving rise to the third warning, the "Training Complaint", the fifth warning to the extent it was based on the "Nathalia Complaint", and possibly some issues with punctuality, might be regarded as having substance. Even then, the significance of those matters and the extent to which they warranted dismissal needs to be considered in light of the observations that I have made. I am not persuaded that these matters provided a valid reason for Mr Khayam's dismissal.

[82] But a more fundamental question arises. Even were I to consider that the College was entitled to have regard to all of the "Conduct Issues", disregarding the concerns that I have raised about them, the College had elected to deal with them - if it dealt with them at all - by counselling Mr Khayam or issuing him with warnings. This was the case up to and including the fifth warning on 30 July 2024. At that point, the College was apparently of the view that the cumulative effect of all of the "Conduct Issues" (assuming them to include the third warning) did not warrant the termination of Mr Khayam's employment. Why should I take a different view?

[83] Mr Evangelatos did not refer to any incident after 30 July 2024 that caused him to dismiss Mr Khayam. If there was a "trigger event", it is not clear on the evidence.

[84] In the circumstances, I am not satisfied that there was a valid reason for Mr Khayam's dismissal.

Notification of reason and opportunity to respond

[85] As I am not satisfied that there was a valid reason for the dismissal, these criteria have no application to the present circumstances.[46]

Any unreasonable refusal by the College to allow Mr Khayam to have a support person

[86] There is no evidence that the College refused Mr Khayam to have a support person, as he never asked for one. The College submitted:[47]

"As an employer, if the employee requests one and the employer refuses one then that's a point against the employer, in terms of rejecting the request, there has to be a request for the support person."

[87] Mr Khayam argued that he was not informed that the various meetings that resulted in warnings and ultimately his dismissal were to be disciplinary in nature. He also stated that the College never invited him to bring a support person to any meeting. By and large, the evidence bears this out. But I do not regard this as significant in the context of this case. It is more likely an indication of Mr Evangelatos's unfamiliarity with performance and conduct management processes than a deliberate attempt to deny Mr Khayam appropriate support.

The size of the College's enterprise, and access to dedicated human resource management specialists or expertise

[88] The College is a small enterprise without dedicated internal human resources expertise. Consistent with my earlier observations, this likely contributed to the procedures the College followed in effecting the dismissal.

[89] Mr Khayam contended that in effecting his dismissal, the College had failed to comply with its own procedures. He produced two policies which he contended applied at the time of his dismissal, setting out the procedures that the College was required to follow when considering disciplining or dismissing an employee. However, he had not led evidence before the hearing to establish the provenance of the documents. Mr Evangelatos stated that he had never seen them.

[90] Mr Evangelatos gave evidence that there were no such policies in place, although he later suggested that there was such a document although it was not in evidence. Certainly, the reference in his letter to Mr Khayam of 13 June 2024 to "WIN College's progressive discipline process" points to the existence of an established procedure. Further, the College's Staff Code of Conduct Policy makes reference to "WIN's disciplinary policies and procedures".[48]

[91] However, on the evidence I cannot say whether the College complied with any relevant policies or procedures in effecting Mr Khayam's dismissal.

[92] In terms of the case advanced by the College, I have considered in particular the following matters:

(1) By 13 August 2024, the College had determined to terminate Mr Khayam's employment.

(2) There is no evidence that prior to 13 August 2024:

(a) Mr Khayam was made aware of the "Mirena Complaint" or the "Marques Complaint";

(b) Mr Khayam was counselled or warned about his punctuality, other than for the reference during the meeting on 4 June 2024 that he must be punctual in the context of student inductions. It follows that it is difficult to see how he could be criticised by Mr Evangelatos for "not improving" in that area;

(c) Mr Khayam was counselled or warned about having "interpersonal issues" with Mr Munday. Similarly, other than being (I understand) the second person referred to in the fifth complaint), there is no evidence of any substantive discussion with Mr Khayam regarding any "interpersonal issues" with "Candy"; and

(d) Mr Khayam was counselled or warned about repeatedly failing to update student results.

[93] Mr Khayam also produced documents that he claimed showed that he had been treated inconsistently and less favourably than other employees. For example, following the management meeting on 12 June 2024, Mr Munday was placed on an "Underperformance Meeting Plan" for his part in the discord at that meeting. There was no such document in evidence regarding Mr Khayam. Mr Evangelatos stated that he had begun preparing one during a meeting with Mr Khayam, but was unable to complete it as Mr Khayam left the meeting. Once again, I was left with only Mr Evangelatos's evidence.

[94] On the evidence, Mr Khayam's case did not rise to the point that I could safely conclude that there was necessarily any inconsistency in treatment, or that if there was, it was intentional.

[95] Finally, Mr Khayam drew my attention to a reference that Mr Evangelatos had provided him dated 31 August 2024.[49] That reference can only be described as glowing. Mr Khayam pointed to the obvious inconsistency between that reference and the reasons that Mr Evangelatos gave for effecting his dismissal.

[96] I do not place much weight on the reference. It was provided after Mr Khayam's employment at the College had come to an end. It is clear that Mr Evangelatos was doing Mr Khayam a favour in providing the reference, to the point of possibly "gilding the lily". This is evidenced in the following exchange I had with Mr Evangelatos:[50]

"THE COMMISSIONER: Why did you give him the reference, then, in those circumstances?‑‑‑Okay. Because, a father to a father, and a friend to a friend - I knew he was going through difficult - in his personal life. He discussed with me his personal - and I actually felt for him, as a father. I could understand, and he was going for a job interview. So I gave him - and I told him they're going to ring me up anyway...so I felt for him, so I wrote the reference. ..."

[97] I am satisfied that Mr Khayam's dismissal was harsh, unjust and unreasonable as there was no valid reason for his dismissal.

[98] Having found that Mr Khayam was a person protected from unfair dismissal and that he was unfairly dismissed, I have the discretion to order his reinstatement, or to order that the College pay him compensation.[51] Importantly, a finding of unfairness in the dismissal does not oblige me to order one or the other. The question of whether to order any remedy is a matter within my discretion.[52]

[99] Reinstatement is not appropriate in this case. Mr Khayam was unrestrained in the allegations that he levelled against Mr Evangelatos. He accused him of concealing or fabricating evidence, committing perjury and acting unscrupulously, unethically and illegally. From my observations of the interactions between the two men during the course of the hearing, I think it highly unlikely that an effective working relationship between them could ever be restored. This is fundamental, given that Mr Khayam would report to Mr Evangelatos were he to be reinstated. Further, it was clear from Mr Khayam's submissions that he regarded the College more broadly as being tainted by or responsible for Mr Evangelatos's alleged behaviour.

[100] I am satisfied, however, that an order for payment of compensation is appropriate in all the circumstances of this case.[53]

[101] In assessing compensation, I am required to take into account all the circumstances of the case.[54] In doing so, I will adopt the well-established methodology for assessing compensation in unfair dismissal cases set out in Sprigg v Paul's Licensed Festival Supermarket ("Sprigg")[55], as follows:

Step 1: Estimate the remuneration Mr Khayam would have received, or have been likely to have received, if the College had not terminated his employment (remuneration lost).

Step 2: Deduct monies earned by Mr Khayam since termination.

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that Mr Khayam receives the actual amount he would have received if he had continued in his employment.

[102] Step 1 requires an assessment of the remuneration that Mr Khayam would have received, or would have been likely to receive, had he not been dismissed.[56] This requires an estimation of his anticipated period of employment;[57] that is, how long he would have remained in employment but for the dismissal, and the remuneration he would have received, or been likely to receive, during that period.[58] There is an element of speculation in this counterfactual task, as it involves an assessment of what would have been likely to happen in the future had Mr Khayam not been dismissed. In making that assessment, I am required to consider the actual state of facts. In each case, it is necessary for the Commission to address itself to the question whether, if the dismissal had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means.[59]

[103] While I have found that some of the "Conduct Issues" on which the College relied to dismiss Mr Khayam lacked substance, it had legitimate concerns with some of Mr Khayam's conduct and performance. I agree with the College's submission that the employment relationship was "in a lot of trouble".[60] I estimate that Mr Khayam's anticipated period of employment was three months after the date of dismissal.

[104] Neither party led evidence as to Mr Khayam's earnings.[61] In its Form F3 Response to unfair dismissal application, the College provided the following information regarding Mr Khayam's "wage or salary at the time of the dismissal":[62]

Saeid Khayam v George Education Group Pty Ltd trading as WIN College [2025] FWC 2571

At a glance

Court

Decision date

Source

Judgment (278 paragraphs)

Saeid Khayam v George Education Group Pty Ltd trading as WIN College [2025] FWC 2571 (2 September 2025)

Parties

Legislation Cited (1)

Cases Cited (5)