s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - employee dismissed for serious misconduct - dismissal consistent with Small Business Fair Dismissal Code - application dismissed

[1] Susan Bate began working at the Burringbar District Sports Club in 2019. She started as a casual employee, before being appointed on a permanent basis as Bar Manager and subsequently Club Manager. Until the events giving rise to these proceedings, the Club had not called Ms Bate's performance or conduct into question.

[2] In the second half of 2024, the Club began to have concerns regarding Ms Bate's conduct and aspects of her performance. The Club ultimately found that she had engaged in serious misconduct. Ms Bate was dismissed with immediate effect on 23 June 2025.

• [3] On 8 July 2025, Ms Bate filed an unfair dismissal application under section 394 of the Fair Work Act 2009.[1] She denied the Club's allegations and called into question the fairness, integrity, transparency and impartiality of the process that resulted in her dismissal.

[4] The Club denied that the dismissal was unfair. Further, it raised a jurisdictional objection, namely, that it is a small business employer and that in effecting Ms Bate's dismissal it complied with the Small Business Fair Dismissal Code (Code).

[5] I have determined to uphold the Club's objection and to dismiss Ms Bate's application. My reasons follow.

• [6] In a letter to Ms Bate dated 3 May 2025 and titled "Allegations Letter", Karen Lewis, then the Chair of the Club's Board, wrote:[2]

"Following an internal review by the Board of Directors (the Board) of the Burringbar District Sports Club (the Club) during your recent absence due to a non-work-related injury, the Board has become aware of several serious issues concerning your conduct during your employment as the Club's Secretary Manager.

Before the Board makes any decision as to whether these allegations are substantiated or what action (if any) to take, you are invited to provide responses to the allegations outlined below in a meeting on Friday, 9 May 2025 at 10.30am at the Club either in person or online. Please advise prior to the meeting which option you would prefer to help with preparation.

The allegations concerning your conduct are as follows:

1. Unauthorised overtime payments: You paid yourself penalty rates for overtime hours from 10 December 2023 through to the week ending 21 July 2024, without seeking approval or disclosing these payments to the Board. This conduct is alleged to be in breach of your contract of employment and the Registered and Licensed Clubs Award 2020, under which you are employed on a 20% exemption rate as a manager and therefore not entitled to receive overtime payments. Due to your unauthorised overpayments, you received a total gross amount of $32,285 above your contractual salary entitlement.

2. Unapproved hours worked amounting to breach of the Club's liquor licence: the Board have reviewed your timesheets between 10 December 2023 and 21 July 2024 and you have claimed to have worked a total of 140 hours after midnight. These hours include periods that are in breach of the Club's Liquor Licence which prohibits trading after certain hours. At no time did you seek prior approval from the Board or inform the Board that you were working and facilitating trade during these hours.

3. Unauthorised work performed on your RDOs: It is alleged that you recorded a total of 124 hours on your timesheets for work performed on your rostered days off, including tasks described as 'shopping,' 'washing,' and, on occasion, 'banking.' At no point did you disclose these activities to the Board or seek written approval to undertake them during non-rostered hours.

4. Lack of timesheet oversight: No timesheets for any employees have been signed or approved by you, and as a result, there is no verification that these hours were actually worked... Without the approval of yourself, this exposed the Club to potential fraud.

5. Failure to formalise employment for staff: You did not create and provide a contract of employment for Bar staff, the Greenkeeper, or Clerk, nor update the Clerk's job description when their duties changed. We have found no record of any appraisals being conducted with any staff during your tenure. There were no documents in the staff files relating to individual superannuation funds or leave totals taken or accrued. This has exposed the Club to staff complaints, fines and constituted an extraordinary time-consuming and detailed interrogation of what few documents exist to ensure that the Club is not exposed to fraud and over or underpayment.

6. Failure to sufficiently recruit, and train bar staff to work independently: Despite repeated directives from the Board, you did not recruit sufficient bar staff or train them in required operational procedures. There was a lack of some vital written procedures to ensure staff were competent and safe within the workplace.

7. Failure to implement policy training: You did not arrange a consultative meeting between the staff and the Board regarding the new Policy Manual as instructed twice. Instead, you publicly undermined the Board's efforts and criticised the policies at the Special General Meeting.

8. Unauthorised volunteer management arrangement: The Board have become aware that a Centrelink 'Work for the Dole' participant has apparently been volunteering at the Club for some time, assisting with the community garden. We had not been informed of this arrangement by you, and that the Club had been covering expenses relating to the community garden initiative. A claim now exists that the Greenkeeper supervised and managed this volunteer, adding to their hours worked and a raise in entitlements. Volunteers supported by the Club via the Centrelink program were not given any job descriptions, policies or procedures.

9. Unapproved infrastructure changes: You failed to ensure compliance with Board directives requiring consent and planning for any improvements to the Village Green area. Unauthorised infrastructure works were carried out by a staff member and tenant, resulting in member complaints including but not limited to being asked for money to contribute to infrastructure, the lack of visual appeal, patron safety issues, lack of access to the Bowls shed, smoke over the bowls green during competitions, and food being left to rot.

10. Inappropriate communication channels with the Board: Despite being directed both in a policy and in writing by the Chair you have emailed all Directors (including to their private email addresses) instead of communicating only through the Chair. This has resulted in the Club's business being subject to a breach of confidentiality.

The Club is concerned that if the above allegations are substantiated, this would constitute serious misconduct in breach of your employment contract and the Club's policies and procedures. We may therefore take disciplinary action against you, up to and including termination of employment for serious misconduct." (Reproduced verbatim)

• [7] In a letter to Ms Bate dated 23 May 2025, Ms Lewis stated that the proposed meeting had been rescheduled. She also added the following allegation:[3]

"11. Failure to comply with lawful and reasonable direction: On 19 May 2025, you sent an email to all members of the Board regarding your leave balances. You have been previously directed to only communicate to me as the Board conduit. This allegation is an adjunct to item 10 in the Allegations Letter." (Bold in original)

[8] For convenience, I will use "allegations" to refer to the allegations put to Ms Bate in the letters of 2 and 23 May 2025, and adopt the corresponding numbers.

[9] The meeting that Ms Lewis proposed did not eventuate. Instead, Ms Bate provided a response to the allegations in a letter to the Board dated 29 May 2025.

• [10] In a letter to Ms Bate dated 9 June 2025 and titled "Notice to Show Cause", Ms Lewis stated that the Club had substantiated allegations 1, 3, 5, 7, 8, 10 and 11. Allegation 6 was substantiated in part, to the extent that the Club found that Ms Bate had failed to adequately train existing bar staff in the Club's procedures (including opening and closing procedures) to enable them to work autonomously. The remaining allegations were either not substantiated or withdrawn. The letter went on to state:[4]

The Club considers that your conduct, considered either separately or together, amounts to misconduct. Accordingly, the Club is considering terminating your employment.

You are invited to provide any information of which Club should be aware, before making a decision."

[11] Ms Bate responded to the Notice to Show Cause in a letter to Ms Lewis dated 15 June 2026. The letter was titled "Due Process". The letter did not particularly address the substance of the allegations, but challenged the process through which they had been by put to her and by which some had been substantiated. The letter called for more information regarding the allegations and for an external investigation.

• [12] In a letter to Ms Bate dated 23 June 2025 and titled "Termination Letter", Ms Lewis stated:[5]

"I am writing to you about your employment with Burringbar District Sports Club (the Club) and to confirm that the Club has decided to terminate your employment with effect from today.

Please be advised that upon reviewing your response, the Club has revised its finding in relation to Allegation 7. While you did not arrange a consultative meeting with staff, the Club is prepared to accept your explanation that you made an attempt to do so. Therefore, the Club finds this aspect of allegation 7 to be unsubstantiated.

The other aspect of Allegation 7, that you publicly undermined the Board's efforts and criticised the Boards' policies at the Special General Meeting, remains substantiated.

Only the substantiated aspect of the allegation has been taken into account by the Club in making its final decision.

The Club has considered your response to the show cause notice and all of the available information.

The Club has decided to terminate your employment. Your termination is effective immediately.

Although the Club considers the conduct to be serious misconduct, justifying termination without notice, the Club has elected to make a payment to you of 5 weeks' pay by way of payment in lieu of the notice period you would have otherwise been entitled to on termination of your employment." (Bold in original)

• [13] Before considering the merits of Ms Bate's application, I am required to decide four matters.[6] There was no controversy about three of them, and I find that:

• (1) Ms Bates was dismissed on 23 June 2025 and filed her unfair dismissal application on 8 July 2025. That was within the statutory time period;[7]

• (2) Ms Bates was a person protected from unfair dismissal;[8] and,

• (3) the dismissal was not a case of genuine redundancy.[9]

• [14] The question which remains is whether the dismissal was consistent with the Code. That will be the case if, at the time of the dismissal, the Club was a small business employer,[10] and it complied with the Code in relation to the dismissal.[11] If the Club was a small business employer at the time of Ms Bate's dismissal, and the dismissal was consistent with the Code, Ms Bate cannot have been unfairly dismissed.[12]

[15] It was not in dispute that at the time of the dismissal, the Club was a small business employer. At that time, it had six employees including Ms Bate.

[16] The Code distinguishes between "Summary Dismissal" and "Other Dismissal". In relation to the first, the Code relevantly provides as follows:

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. ..."

• [17] In relation to that category of dismissal, the Full Bench in John Pinawin T/A RoseVi.Hair.Face.Body v Edwin Domingo[13] observed:

"[29] **...**There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee's conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.

[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.

[38] Normally in order to hold a belief on reasonable grounds it will be necessary to have a discussion with the employee about the perceived serious misconduct and pay regard to the explanations and views given by the employee. ..."

• [18] In Jeremy Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services[14] the Full Bench observed:

"[41] In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider that the 'Summary dismissal' section of the Code operates in the following way:

(1) If a small business employer has dismissed an employee without notice - that is, with immediate effect - on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the 'Summary dismissal' section of the Code. All other types of dismissals by small business employers are to be considered under the 'Other dismissal' section of the Code.

(2) In assessing whether the 'Summary dismissal' section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee's conduct was sufficiently serious to justify immediate dismissal, and second whether the employer's belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element."

[19] Regulation 1.07 of the Fair Work Regulations 2009 defines "serious misconduct" in these terms:

(1) For the purposes of the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For the purposes of subregulation (1), conduct that is serious misconduct includes the following conduct of an employee:

(a) wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(ii) the reputation, viability or profitability of the employer's business;

(c) engaging in theft, fraud, assault or sexual harassment in the course of the employee's employment;

(e) refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.

(3) Paragraphs (2)(c) to (e) do not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

• [20] There have been a number of decisions that have examined what is meant by the "ordinary meaning" of "serious misconduct" (and indeed whether such a definition is of particular assistance[15]). I consider it is well-settled that to warrant summary dismissal, the employee's conduct must amount to a repudiation of the employment contract or one of its essential conditions. That is, the conduct must be so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment.[16]

Did the Club genuinely hold a belief that Ms Bate engaged in conduct sufficiently serious to justify immediate dismissal?

[21] Ms Bate's dismissal occurred with immediate effect. While she received five weeks' pay on termination in addition to her accrued pay and statutory entitlements, this is not properly to be seen as a payment in lieu of notice. The Termination Letter made clear that it was in the nature of an ex gratia payment, which the Club had elected to pay in lieu of the notice period that Ms Bate would otherwise have been entitled to receive.

[22] The Club dismissed Ms Bate as a result of its findings that allegations 1, 3, 5, 8, 10 and 11 had been substantiated, and that allegations 6 and 7 had been substantiated in part. The Notice to Show Cause stated that in the Club's opinion, Ms Bate's conduct "either separately or together" amounted to misconduct.

• [23] Ms Lewis gave the following evidence:[17]

"32. The Decision to terminate Sue's employment was a collective resolution of the Board.

33. The Board determined that termination was both necessary and justified based on the outcomes of investigation, supporting reports, and verified evidence that substantiated serious governance, misconduct and performance concerns.

34. The reason I voted to terminate Sue for the following reasons. Pattern of conduct emerged that was inconsistent with her contractual obligations and the expectations of her position. ..." (Reproduced verbatim)

• [24] Kevin Price is also a director of the Club. He gave the following evidence:[18]

"28. I voted to terminate Sue, because of the mistrust. She could have asked the board to increase her pay. I don't think you can just pay yourself or force Rachael Irby (Rachael) to do it. I believe that she took the money without permission. There were also no procedures in place for when the accident occurred. She hadn't trained Sammy properly on how to close or provide Sammy with any actual experience of closing. We didn't even have signatures on the accounts to allow staff to be paid. I had to ask Sue if I can come to her house for her to sign the documents so we could pay staff.

29. I also voted to terminate her because she wasn't doing her job. I don't know too much about finances, but I know the BAS hadn't been done, all our accounts were in such a bad way we needed to pay a lot of money to an external bookkeeper to fix them up. We also had fines from Sue not doing her job.

30. By Sue paying herself the additional amount and all the money now spent by the Club to get the accounts sorted we are facing significant financial difficulties.

31. Reading accounts is not my area but I know we got advice from an accountant and that is how we really proved what had happened so that is what I relied on to vote to terminate Sue.

32. I got on with Sue but what she did was not right. ..."

[25] I am mindful that Mr Price did not reference all of the allegations. He also raised additional matters that do not appear to have been put to Ms Bate prior to her dismissal.

[26] Even so, I accept on the evidence that the Club genuinely believed that Ms Bate engaged in the conduct described in the substantiated allegations and that this was sufficiently serious to justify her immediate dismissal.

Did the Club hold that belief on reasonable grounds?

• [27] The question which next arises is whether the Club held that belief on reasonable grounds. Grounds will be "reasonable" if a reasonable person would regard them as being credible, sensible, logical or plausible.[19] It is for the Club to establish that it had reasonable grounds for holding the belief.[20]

• [28] This does not require the Commission to determine that there was a valid reason for the dismissal. That is, the Commission is not required to make a finding on the evidence as to whether Ms Bate did or did not engage in the conduct described in the allegations. The application of the Code involves a determination as to whether there were reasonable grounds on which the Club reached the view that Ms Bate's conduct was serious enough to justify immediate dismissal. Consequently, the determination is to be based on the knowledge available to the Club at the time of the dismissal, and necessarily involves an assessment of the reasonableness of the steps taken by the Club to gather relevant information on which the decision to dismiss was based.[21]

[29] I will turn to consider the substantiated allegations. In doing so, I am mindful that in the Notice to Show Cause the Club put its position that the conduct described in the allegations "either separately or together, amounts to misconduct". At the hearing, the Club maintained the position that whether the allegations were viewed as a whole or individually, they provide reasonable grounds for the Club's belief that Ms Bate's conduct was sufficiently serious to justify her immediate dismissal.

• [30] Ms Bate was appointed to the position of Club Manager under a contract dated 15 March 2021 (Contract).[22] The Contract included the following terms:[23]

2.1 The Club appoints you, and you agree to serve, in the full-time permanent position of Club Manager with the classification level of Level 6 Manger (under the Award, or such other position agreed between the parties in writing from time to time.

2.4 The terms and conditions of your employment shall be governed by this employment agreement (the Agreement), the Registered and Licensed Clubs Award 2020 (the Award) and applicable legislation. This includes, but is not limited to, the National Employment Standards in the Fair Work Act 2009.

3.1 Your ordinary hours of work shall be an average of 38 hours per week. As you must have a RDO every 4 weeks as per award, hours of work over a 4 weeks period will be 40 hours weekly for 3 weeks then a 32 hours week.

4.1 BDSC shall pay you a yearly Base Salary of $65,000 gross, less applicable taxation, into a bank account of your choice.

4.2 The above Base Salary is inclusive of a 20% management exemption rate of pay which incorporates payment and conditions for the following clauses of the Award:

15 - Ordinary hours of work (other than clause 15.8 - Special provisions for accrued rostered days off-club managers);

24 - Penalty rates (other than penalty rate provisions relating to public holidays)

These provisions are consistent with sub-clause 18.4 of the Award." (Reproduced verbatim)

[31] Clause 18.3 of the Registered and Licensed Clubs Award 2020 (the Award) is titled "Adult employee rates". It includes a "Level 6" classification which is described as "Club manager of a club with a gross annual revenue of less than $500,000". That is the classification that the Club considered applied to Ms Bate. The next level, Level 7, is described as "Level A manager".

[32] Clause 18.4(a)(i) of the Award provides that certain provisions of the Award will not apply if the employee receives a salary 20% in excess of the minimum annual rate for their classification. The terms of that clause are accurately reflected in clause 4.2 of the Contract. Clause 18.4(a)(ii) of the Award provides that certain additional provisions will not apply if the employee receives a salary of 50% above the minimum annual rate for their classification.

[33] Over time, Ms Bate came to have concerns that she was being underpaid. In summary, she considered that her role was misclassified. As she understood that the Club had a revenue in excess of $500,000, she believed she was entitled to be paid at the Level 7 rate under the Award. Next, she regarded her hours of work as excessive, but unavoidable due to the demands of the Club and a lack of adequate staffing. Finally, she believed that she was entitled to certain allowances under the Award which were not being paid, and that if the Club wished not to pay them she was entitled to the 50% uplift for which the Award provided. Ms Bate gave evidence that she had repeatedly requested that the Board review her Contract and remuneration, but she had consistently been rebuffed.

• [34] Rachael Irby was at the relevant times employed as the Club's "Clerk". She had bookkeeping and payroll responsibilities. While there was some debate on the point, I find that Ms Irby reported to Ms Bate. Ms Irby gave evidence that she also came to the view that Ms Bate was being underpaid. She stated that she had sought external advice in December 2023 and was told that Ms Bate should be paid "as if she had no contract until the Board investigated it".[24]

• [35] Ms Irby conveyed this advice to Ms Bate, who made her own enquiries. Ms Bate came to the view that as the Club was underpaying her Award entitlements, the Contract was "null and void".[25]

[36] As a consequence, from 10 December 2023 Ms Irby commenced processing pays for Ms Bate which included overtime. In her oral evidence, Ms Bate seemed to suggest that this was a decision made by Ms Irby and for which Ms Irby was responsible. I do not accept that. Ms Irby reported to Ms Bate, who in turn signed off each week on the payments she was to receive. I am comfortably satisfied that the decision to commence paying overtime was one made jointly between Ms Bate and Ms Irby, but ultimately sanctioned by Ms Bate. Ms Bate continued to receive payment for overtime until 21 July 2024. She was off work with an injury from 24 July 2024.

[37] There is no evidence that Ms Bate or Ms Irby communicated to the Board the advice that they had received regarding the status of the Contract, or that Ms Bate was to begin (or had begun) receiving overtime payments. Ms Irby stated that at a meeting of the Board in February 2024 she had attempted to raise the advice she had received but had been prevented from doing so. But this would not have precluded her or Ms Bate from adopting other means to communicate these matters to the Board.

[38] Ms Lewis stated that the Board first became aware in October 2024 that Ms Bate had received payment for overtime. This was as a result of her querying with Ms Irby why the figure in the payroll records for Ms Bate was higher than her agreed salary.

• [39] In a letter to Ms Bate dated 26 October 2024, Ms Lewis stated:[26]

"The Board of the Burringbar District Sports Club Ltd (the Club) is aware that the Clerk paid you an amount of money before the end of the 2023-2024 financial year that was a cash payment for time in lieu.

The Board will be conducting an investigation into your eligibility for any conversion to cash for the claiming of time in lieu and we will appreciate your co-operation with this investigation." (Bold in original)

[40] I note that the references in this extract to "time in lieu" are properly to be read as meaning "overtime".

[41] At about this time, the Club engaged Bookeze, an external firm of bookkeepers, to provide a report. That firm found that between 10 December 2023 and 21 July 2024, Ms Bate had received overtime payments totalling $32,284 gross.

• [42] In a letter to Ms Bate dated 22 January 2025, Ms Lewis stated:[27]

"We refer to our letter dated 26 October 2024. As you are aware, the Board of the Burringbar District Sports Club Ltd (the Club) has been undertaking an investigation regarding an amount of money paid to you before the end of the 2023-2024 financial year and before your non related work injury that was a cash payment for overtime. You agreed to step down from your duties while the investigation took place.

As part of the ongoing investigation, we require your cooperation to ascertain why certain payments were made, particularly in circumstances where you had authority as the Manager to authorise the payments.

Accordingly, we are directing you to attend a meeting on 29 January 2025 at 9.00am. ..." (Reproduced verbatim)

[43] The meeting on 29 January 2025, and one which the Club subsequently sought to arrange, did not take place. It is not necessary to explore the reasons why and I draw no adverse conclusions against either party in this regard. The next relevant development was the Club sending the Allegations Letter to Ms Bate.

[44] It is not the Commission's role in these proceedings to determine whether the Club complied with the Award or whether Ms Bate was underpaid. I note only that Ms Bate appears to have had reasonable cause to question whether she was receiving her Award entitlements. The Club had based her classification on it having a revenue of less than $500,000. However, Ms Bate produced financial reports for the Club, which disclosed that its revenue for the year ended 30 June 2021 was $585,583.31 and in the following year was $529,352.75. The Club did not directly or effectively controvert that evidence. Its response was limited to Ms Wade and Ms Lewis stating that they understood that the Club's revenue for the 2021-2022 year was forecast to be less than $500,000, and questioning whether - but not demonstrating that - the revenue figure had been improperly inflated by a grant that the Club had received. There is nothing to allow me to draw any conclusions regarding the Club's revenue in the financial years after the 2021-2022 year.

[45] But even were it to be accepted that Ms Bate was being underpaid as at December 2023, it was not open to her to arrange with Ms Irby to commence receiving payment for overtime. That decision effected a unilateral change to the terms of her employment.

• [46] Ms Bate relied on minutes of a Special General Meeting of the Club held on 24 June 2024. They state:[28]

"The Board relies on the Manager [Ms Bate] to employ/contract staff and pay anyone as per the Award. The Manager and Clerk are responsible for paying people correctly."

[47] However, I do not accept, as Ms Bate seemed to suggest, that this evidenced some sort of mandate for her and Ms Irby to take such steps as they saw necessary to correct what they saw as non-compliance with the Award. The minutes of the Special General Meeting also record the Board's position that the Contract complied with the Award. I am satisfied that Ms Bate was aware that the Board would not have approved of her decision to effect a unilateral variation to the Contract to allow her to receive payment for overtime.

[48] Ms Bate and Ms Irby gave evidence as to what they saw as the refusal of the Board to review the Contract and Ms Bate's salary. I accept that Ms Bate had made several requests for a review of the Contract and her remuneration. The Board, and in particular Ms Lewis, did not pursue the matter with particular vigour, but this might be seen in the context of the Club's position that the Contract and Ms Bate's salary complied with the Award.

• [49] Further, the evidence does not support the outright dismissal of Ms Bate's concerns or the refusal to engage that Ms Bate sought to portray. The Club led evidence of Ms Lewis's awareness that the review of the Contract was an "action item" and of attempts by her to set up meetings with Ms Bate. Ms Bate appears to have resisted those meetings, due to her view that Ms Lewis "had no idea"[29] and that her "ideas were tainted".[30]

[50] In any event, even were I to accept that the Club was as dismissive of Ms Bate's concerns as she claims, the unilateral change to her remuneration was not the proper response. She had spoken to her union about the matter, but did not apparently seek to have it prosecute the issue for her. She had spoken to the Fair Work Ombudsman, but did not apparently seek to have it investigate the alleged underpayment. She could also have notified a dispute to the Commission under the Award, as she had done in 2024 when challenging a decision by the Club to stand her down without pay. In short, Ms Bate can be taken to have known she had options, but decided against them.

[51] It is also significant to my mind that the approach that Ms Bate took was not consistent with the advice Ms Irby claimed to have received to pay Ms Bate as if she "had no contract", or with Ms Bate's view that the Contract was "null and void". Ms Bate did not revert to the Award rate of pay, plus overtime, penalties and allowances. She simply added overtime to the salary being paid to her.

[52] On all of the evidence, I am satisfied that the Club conducted a reasonable investigation into the question of the overtime payments. Ms Bate was invited to offer her explanation and the Club appears to have had regard to her views.

[53] In summary, Ms Bate arranged with Ms Irby to receive a benefit that she knew was not contemplated by the Contract and of which the Board would not approve. Her conduct was deliberate and has the air of subterfuge about it. She was the most senior employee of the Club. I am satisfied that the Club had reasonable grounds to conclude that, through the conduct described in allegation 1, Ms Bate had engaged in serious misconduct warranting her immediate dismissal.

[54] That conclusion largely obviates the need to address the remaining allegations. I will deal with them briefly.

[55] Allegation 3 contended that Ms Bate had performed work on her rostered days off without disclosing that to the Board or seeking written approval to do so. There was no controversy about those facts, or that the Board had directed Ms Bate on several occasions to confine her hours of work to those in the Contract.

[56] But two matters should be noted. First, the Contract expressly provided for Ms Bate to be paid a salary that contemplated her working overtime. It is difficult to understand why the Club was so insistent that Ms Bate confine herself to "ordinary" hours, or why it contends that the Commission should view with such seriousness her failure to do so.

• [57] Second, and more significantly, the Board seems to have been aware of the hours Ms Bate was working. Jennell Wade, who was a member of the Club's Board at relevant times, gave evidence that she had been aware for "quite a long time before May 2025" that Ms Bate "had consistently worked over her rostered hours".[31] Further, the minutes of a Board meeting on 8 April 2025 contained this entry:[32]

"3 Bar Attendants will be required if Sue is to get her hours down and be able to take her annual leave."

[58] In light of these matters, I do not accept that any failure by Ms Bate to proactively disclose the fact that she was working on her rostered day off or to obtain "written approval" to do so can reasonably have been regarded by the Club as serious misconduct.

[59] Allegations 5 (failure to formalise employment for staff) and 6 (failure to train bar staff to work independently) go to Ms Bate's performance. Taken at their highest, and acknowledging that Ms Bate challenged them, the Club had no reasonable basis to regard these allegations as amounting to serious misconduct.

[60] Allegation 7 (to the extent it was substantiated) contends that Ms Bate criticised the Board's newly-promulgated Policy Manual and "undermined the Board's efforts". A reading of the minutes of the special general meeting at which this was said to have occurred suggests that there was robust discussion about a number of matters. The Club fell short of demonstrating that Ms Bate's behaviour could reasonably have been regarded as misconduct, much less serious misconduct.

[61] At its highest, again acknowledging that she contended that the allegation had no substance, allegation 8 (unauthorised volunteer management arrangement) challenged Ms Bate's judgment. It cannot reasonably have been regarded by the Board as conduct amounting to a repudiation of her employment contract.

• [62] Allegations 10 and 11 are storms in a teacup. Ms Bate accepted that she had been directed to communicate through the Board through Ms Lewis, and that she failed to do so. She included all Directors in certain correspondence. Ms Bate stated that her relationship with Ms Lewis had become "unworkable".[33] To paraphrase her oral evidence, she was concerned that the information being passed to the Directors, if it was passed on at all, was being filtered. While this does not necessarily excuse her disobedience, it provides some context for it. But all in all, to the extent that the disobedience amounted to misconduct, it is at the lower end of seriousness. The Club could not reasonably have regarded it as warranting dismissal.

[63] Consistent with the position that the Club put to Ms Bate in the Notice to Show Cause, and maintained in these proceedings, I do not need to find that all of the substantiated allegations provided reasonable grounds for the Club's belief that Ms Bate's conduct was sufficiently serious to justify her immediate dismissal. It submitted that the allegations could be viewed as a whole or individually.

[64] However, with the exception of allegation 1, none of the allegations individually provide reasonable grounds for the Club's belief. Further, in the absence of allegation 1, the allegations collectively do not provide such grounds. The Club has sought to raise performance concerns or other grievances to the level of serious misconduct. The distinct impression created by the evidence is that, having discovered the overtime payments, the Club threw everything it had at Ms Bate without proper if any regard for how it characterised her alleged shortcomings. I find that the Club derives no assistance from allegations 3, 5, 6, 7, 8, 10 and 11.

[65] However, I am satisfied that Ms Bate's conduct in arranging to have herself paid overtime constituted serious misconduct. She was the Club's most senior employee. Her conduct was deliberate and in breach of the Contract. She can be taken to have known that the Board would not approve her receiving overtime. The lack of evidence of genuine efforts by Ms Bate or Ms Irby to inform the Board of their decision to pay Ms Bate overtime suggests concealment. To the extent that Ms Bate believed that she was being underpaid and that the Board was not taking her concerns seriously, she had options available to her. Her conduct was self-serving, not least because it may have resulted in her receiving more than she would have done had she acted in accordance with the advice that Ms Irby claimed to have received.

[66] I am satisfied that the Club genuinely held a belief that Ms Bate's conduct was sufficiently serious to justify her immediate dismissal, and that that belief was, objectively speaking, based on reasonable grounds. It follows that I am satisfied that Club complied with the "Summary Dismissal" section of the Code. As the dismissal was consistent with the Code, Ms Bate cannot have been unfairly dismissed.

[67] For the reasons set out above, I order that the application be dismissed.

[1] In this decision, all references to legislation are to provisions of the Fair Work Act

[6] Section 396

[7] As prescribed by section 394(2)

[8] Within the meaning of section 382

[9] Within the meaning of section 389

[10] Within the meaning of section 23

[11] Section 388

[12] Section 385

[13] John Pinawin T/A RoseVi.Hair.Face.Body v Edwin Domingo (2012) 219 IR 128; [2012] FWAFB 1359 at [29]

[14] [2015] FWCFB 5264

[15] See Owen Sharp v BCS Infrastructure Support Pty Limited [2014] FWC 7310 at [54]

[16] See North v Television Corporation Ltd [1976] CthArbRp 1465; (1976) 11 ALR 599 at 608-609

[19] Glenn McDermott v De Beaux Cheveux Pty Ltd [2015] FWC 761 at [109]; Mitchell Bevan v Nigwil Cellars Pty Ltd [2025] FWC 2392 at [37]

[20] Harley v Rosecrest Asset Pty Ltd T/A Can Do International [2011] FWA 3922 at [9], quoted with approval in Belinda Taft v The Trustee for Simon Bando Family Trust trading as Go Home Lifestyle Products [2025] FWC 2014 at [22]

[21] Narong Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Café [2011] FWA 651 at [60], quoted with approval in Belinda Taft v The Trustee for Simon Bando Family Trust trading as Go Home Lifestyle Products [2025] FWC 2014 at [21]

[22] Ms Bate signed the Contract on 24 January 2022. She gave evidence that she had a number of concerns with the Contract but felt pressured to sign it. She added a notation to the Contract to the effect that she had questions regarding its terms. However, Ms Bate did not explain what her concerns were or how they were relevant to these proceedings. I have taken the Contract to have applied on its terms.

[24] Statement of Rachael Elizabeth Irby, 9 October 2025, Digital Hearing Book p 165

[33] Submissions of the Applicant, 10 October 2025, par 52

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