s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - whether dismissal harsh, unjust or unreasonable - valid reason found - procedural fairness considered - termination not considered harsh, unjust or unreasonable - application dismissed.

• [1] On 24 May 2025, Ms Vickie McKenney (the Applicant) made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that she was unfairly dismissed from her employment on 9th of May 2025.

• [2] Ms McKenney's employer, Rainbow Palm Pty Ltd (Rainbow Palm or the Respondent), denies these allegations. Their position is that there were valid reasons for Ms McKenney's dismissal and that she was provided procedural fairness.

• [3] On allocation to my Chambers, directions were issued for the merits of the application to be determined at a hearing on 8th October 2025.

• [4] Having considered all the submissions and evidence submitted by the parties, I have found that the circumstances of this case are such that Ms McKenney was not unfairly dismissed. I have found there was a valid reason for her dismissal, and on balance, I have been satisfied her dismissal was not harsh, unjust, or unreasonable. The reasons for these findings are set out below.

When can the Commission Order a Remedy for unfair dismissal?

• [5] Section 390 of the Act provides that the Commission may order remedy if:

(a) the FWC is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

• [6] Both limbs must be satisfied. Therefore, I am required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am so satisfied, next consider whether the Applicant has been unfairly dismissed.

When is a person protected from unfair dismissal?

• [7] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less that the high-income threshold.

• [8] Section 385 of the Act provides that a person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

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

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

• [9] There being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing. Considering the views of the parties and the circumstances of this case, I determined a determinative conference hearing was the most effective and efficient way to resolve the matters of contention.

• [10] The determinative conference was convened on 8th October 2025 at the FWC in Melbourne. Ms McKenney represented herself in proceedings. The Respondent was represented Ms Wu (Director) and Ms Li (General Manager).

• [11] Ms McKenney filed an outline of submissions and additional materials to support her position. She also presented witness statements from Ms Johnson, Ms Hunter, Ms Booth and Ms Timbs in support of her submissions. Ms McKenney gave sworn evidence in proceedings, and the statements of her supporting witness were accepted into evidence without contention.

• [12] The Respondent filed written submissions, and a significant number of documents in support of its position in addition to its F3 employer response. The Respondent's submissions were supported by the sworn evidence of Ms Wu, Ms Li and Mr Baskota. Additional witness statements for the Respondent from Mr Turner, Ms Griffith and Ms Wang were accepted into evidence without being examined.

• [13] A court book, containing all materials filed by the parties was compiled and distributed to the parties prior to the Hearing. I received the entirety of the court book into evidence, subject to appropriate weight being given to the evidence that was tainted by opinion, irrelevance or hearsay.

• [14] I have assessed and considered all the evidence and submissions of the parties in this matter, including material presented during the determinative conference before the Commission. Set out below are my findings of the relevant background facts.

• [15] Ms McKenney commenced working with entities related to the Respondent in 2018 preparing meals in the kitchen for residents at an assisted living facility. On 5th October 2023, she signed an employment contract commencing a permanent part-time role as a NDIS Support Officer/Worker with the Respondent, then known as Sherwood Support Services. Ms McKenney lives in Traralgon. Her employment contract is for work at NDIS facilities the Respondent operates in the La Trobe Valley.

• [16] Sherwood Support Services changed operating names to Rainbow Palm Pty Ltd in early 2023. Rainbow Palm Pty Ltd (otherwise the Respondent) provides a variety of NDIS support services to clients and residents in the La Trobe Valley area of regional Victoria. As a NDIS provider, Rainbow Palm is bound by the privacy and confidentially requirements associated with the provision of these services to the community.[1]

• [17] Ms McKenney is a loyal and competent employee who has worked for the Respondent and its former iterations for some time. Until the events of early 2025, her employer did not have any issues or concerns with her conduct or performance that required formal discipline or reprimand.

• [18] On the 7th of January 2025, Ms McKenney attended a team building dinner with work colleagues at a local restaurant. Ms Wu and Ms Li were also in attendance. Ms McKenney was hurt and visibly upset by comments[2] from Ms Wu at this dinner about her appearance. Ms Li accepts she was a witness to this being the case. Ms Wu accepts Ms McKenney could have misinterpreted her comments and taken offense. She denies making any offensive comments with an intent to harm Ms McKenney.[3] Ms Li noticed that Ms McKenney was upset and says she assured her the remarks were not intended to be offensive or harmful and that if she had a concern, she could always raise it with herself or Ms Wu directly.[4]

• [19] Ms McKenney accepts that following the incident on the 7th of January she did not make any formal complaint about her concerns. She submits it is not in her nature to complain, and she just tried pushing through. She maintains, however, that she was hurt by the comments and negatively impact by them. Ms McKenney presented uncontested evidence of this being the case. She submits that thereafter she felt her relationship with her employer started to unravel. That she felt like she was not being supported, ostracised and set up to fail. Adding that she sought to raise these concerns verbally with her employer, accepting however, that this was not support by any evidence.[5]

• [20] The Respondent rejects that Ms McKenney was being ostracised, victimised or otherwise treated differently following the incidents of the 7th of January. I accept this to be the case from their perspective, given they were not informed otherwise by Ms McKenney. Ms McKenney accepts she did not articulate her concerns. She maintains, however, that this is how she felt. I accept that from Ms McKenney's perspective it was plausible for this to be so.

• [21] Unaware of her concerns, the Respondent proceeded with the relationship as it normally would. Towards the end of March, it identified Ms McKenney had failed to complete required first aid and CPR training for her role. On 14th of April, the Respondent issued Ms McKenney a formal warning about this failure and a direction to complete the required training.

• [22] Ms McKenney's accepts she needed to complete her first aid and CPR training but was unable to do so because she had been working long hours and not had not been provided the time to. After April 14th, it became a priority, and she completed the training on April 28th. After doing so she advised Ms Li that she had completed her training but had not yet been provided with a certificate.

• [23] On April 29th, Ms Li issued Ms McKenney with a second formal disciplinary warning for failing to provide evidence of booking or completing the required training. This correspondence required Ms McKenney to provide evidence of her training and advise her a failure to do so could lead to further disciplinary action, including possible suspension or termination.[6]

• [24] Ms McKenney believed this second formal warning was unfair. She called Ms Li and again advised she had completed the training the previous day and was awaiting her certificate which she would provide. She says, Ms Li accepted her explanation and welcomed receiving her training certificate and her continuing in the role.

• [25] Despite this being the case, Ms McKenney did not feel comfortable returning to work without her certificate because she believed she was being set up to be dismissed because of the second warning she had been provided. She was considerably upset and stressed about what she thought was happening, did not understand what she had done and was unable to attend work. She says she advised she was unwell and would not be attend work due to the stress of unfairly receiving the second warning letter and being threatened with dismissal.[7]

• [26] Ms McKenney did not attend work after the 29th of April. She says she thought she was on approved sick leave because she had told Ms Li she was stressed by the warnings. Ms Li says she had no understanding Ms McKenney was going to be away for work for an extended period. When Ms McKenney failed to provide any further information or make contact, turn up to work or provide a sick certificate, the Respondent made further attempts to contact her. Ms McKenney accepts that the only response she provided was that she was "unable to meet".[8]

• [27] Ms McKenney's evidence is that she was very unwell. She was confined to her home and struggling to function. The witness evidence provided by her sister, Ms Johnson, supports her version of events. I accept this evidence.

• [28] Her further evidence is that it was not until the 6th of May that she was able to attend her regular doctor and be in a position to provide a sick certificate to her employer. She accepts the Respondent made attempts to contact her during this time but submits she was unwell and unable to respond and considered their persistent communications to be further bullying. On 6th May, Ms McKenney saw her doctor and subsequently sent a medical certificate for the period of 6 - 10th May to the Respondent. In proceedings she accepted that there was no evidence provided to her employer to account for the period from the 30th of April to the 6th of May.[9]

• [29] During this period, Ms McKenney says she felt under attack and fearful she was going to be dismissed. Because of this, on the evening of the 5th of May she felt compelled to prepare a report for the Respondent in her defence explaining her loyalty and strengths as an employee. As she had difficulty accessing the Respondent's system directly, she transferred almost 200 separate files she had access to on her work email address to her personal email address.

• [30] The personal email address used by Ms McKenney was not registered with the Respondent. It is not in dispute that a significant proportion of the files transferred contained confidential and sensitive information. The data transfer occurred between approximately 7.50pm and 10.50pm.

• [31] Ms Li was alerted to a potential breach of the Respondent's IT system when she received a calendar alert attached to one of the emails forwarded by Ms McKenney. On receiving this alert, she contacted the Respondent's external IT consultant, Mr Baskota, asking him to undertake an investigation into what had occurred.

• [32] Mr Baskota identified Ms McKenney was most likely responsible for the breach as she was the only person with access to her work email address. He reviewed the data she had forwarded to her personal email address and identified its significance in both volume, sensitivity and confidentiality. He provided Ms Li with a report of his findings.

• [33] On the afternoon of the 6th of May, Ms Li sent Ms McKenney an email making her aware of the data breach and asking if she knew about it involving her work email account and, if so, to provide an explanation. Ms Li also advised Ms McKenney she was conducting a formal investigation into Ms McKenney's involvement in the data breach, that she was being removed from all Rainbow Palm accounts and suspended from work until further notice. Ms Li further sought Ms McKenney provide a written explanation in response by no later than 5:00pm Wednesday the 7th of May.

• [34] The following morning, Ms Li again wrote to Ms McKenney directing she return all company issued equipment, inclusive of 2 laptops, a mobile phone and airpods to facilitate the investigation and prevent compromising any further company data. Ms Li's direction required Ms McKenney to return these items by 5:00pm the same day.

• [35] Ms McKenney responded to Ms Li as required. In her response she acknowledged she was responsible for the data transfer. She explained that she was not aware she was breaching any policies or security requirements as she was only forwarding the files to herself and remained an employee. She made clear she was not transferring the files to a third party and indicated she was happy to delete all the files she had transferred. Further explaining that she had only transferred the files to prepare a report for the Respondent to help explain her position because she was fearful of being dismissed.[10] In terms of returning her equipment, Ms McKenney indicated she was not well or comfortable enough to attend the workplace but offered to do so at a neutral location.

• [36] Ms McKenney also made it clear in the determinative conference that it was not uncommon for herself or other Rainbow Palm employees to forward reports to their personal emails that included confidential client details using the Respondent's Smartsheet system. The Respondent accepted that this may have been the case while Ms McKenney had been an employee but had since changed. Further, submitting that it was understood employees had to have their personal emails registered in their personal files the Respondent held, and that any information forwarded to their personal emails had to concern them.[11]

• [37] Despite this assertion, the Respondent was unable to identify how it had communicated this requirement and understanding to its employees or otherwise identify where in its privacy, IT or any other company policy it made it clear to employees they were not to use their personal emails.[12] Ms McKenney maintained using personal emails was commonplace by employees, accepting however, that she understood they should be used for matters concerning themselves. Further, accepting that all the data she transferred did not fall into this category.

• [38] Ms McKenney accepted she should not have transferred the confidential data, apologised for doing so and maintained she had done so based on an honest misunderstanding and without any malice or ill intent.[13]

• [39] The Respondent considered Ms McKenney's explanation and did not accept it. They determined that the significance of the data breach - some 198 separate emails - containing sensitive documents outweighed Ms McKenney's admission, explanation and the fact she had recently made them aware she was unwell.

• [40] On the 8th of May, the Respondent wrote to Ms McKenney informing her that the data breach was a serious breach of her obligations to comply with Rainbow Palm's internal privacy and confidentiality polices in addition to amounting to breaches of the Privacy Act, NDIS Code of Conduct, and Disability Act amongst other things. The Respondent considered Ms McKenney's conduct was deliberate and systematic misconduct not justified by a report that was not requested that could not be undone by simply deleting the transferred emails. This letter requested Ms McKenney cooperate by returning all her company property and equipment and advised her she would be told the outcome of the investigation and consequences for her employment the following day.

• [41] On the 9th of May, Ms McKenney was terminated with immediate effect. The only reason given for her termination was the serious safety breach of confidentiality and information security identified on the 5th of May, and subsequent failure to cooperate with company directives. The termination letter advised as follows:[14]

"In light of the severity of the data breach, your failure to comply with confidentiality obligations under the Privacy Act 1988 (Cth), the NDIS Code of Conduct, and Rainbow Palm's internal policies, as well as your deliberate withholding of company property, we hereby terminate your employment with immediate effect, effective today, 9 May 2025."

• [42] Ms McKenney argues that she has been unfairly dismissed. While she acknowledges she breached the company's confidentiality and privacy policies, she maintains this was without malice or intent. She submits she did not consider emailing files to her private email from her work email amounted to a breach of her obligations as an employee. She now understands this to be the case and regrets her conduct. She further submits she has presented a reasonable explanation for her conduct - she wanted to prepare a report for the Respondent to explain and defend herself because she was fearful of being dismissed.

• [43] Ms McKenney further submits it was commonplace for staff to email work information to their personal emails using the Respondent's systems. Adding, that she was seriously unwell at the time she was dismissed, because of the cumulative impact of how she was being treated by the Respondent in the final months of her employment.

• [44] On this basis, Ms McKenney submits the Commission should find she has been unfairly dismissed, and in addition to converting her termination to a resignation, make an order of compensation in her favour instead of reinstatement.

• [45] The Respondent opposes reinstatement and the payment of any compensation to Ms McKenney. Their position is that her termination was for a sound and valid reason - the serious confidentiality and security breach. That she was provided an opportunity to explain her conduct and admitted she had engaged in the conduct as alleged. The Respondent further denies that Ms McKenney was subjected to any form of bullying or discrimination. They consistently maintain that the only reason for her termination was the serious misconduct she engaged in and admitted to.

• [46] Section 396 of the Act sets out the following:

"The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) Whether the application was made within the period required in subsection 394(2);

(b) Whether the person was protected from unfair dismissal;

(c) Whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy."

• [47] As set out above in s.396 of the Act, consideration as to whether the dismissal was unfair cannot occur unless the Commission is first satisfied that the provisions of s.396 have been met. In the present case, it is not contested, and I am satisfied that Ms McKenney has made her application within the requirements of the Act. It is not contested, and I am satisfied that Ms McKenney was earning below the high-income threshold and is a person protected from unfair dismissal. It is also not contested, and I am satisfied, that the Respondent is not a small business that seeks to rely on the Small Business Fair Dismissal Code. Nor is it asserted, and I am satisfied this is not a case of genuine redundancy.

• [48] As I have been satisfied that the requirements of s.396 are met, I am required to consider the merits of whether Ms McKenney's dismissal was harsh, unjust or unreasonable.

Was the dismissal harsh, unjust or unreasonable?

• [49] I must consider all the circumstances of the case along with the relevant authorities.[15] A dismissal may be unfair, when examining if it is 'harsh, unjust or unreasonable' by having regard to the following reasoning of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd:[16]

"It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."

• [50] Section 387 of the Act provides for the criteria for consideration whether a dismissal was harsh, unjust or unreasonable as follows:

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

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

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal; and

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

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

(h) any other matters that the FWC considers relevant."

• [51] I am required to consider each of these factors, to the extent they are relevant to the factual circumstances before me.[17]

• [52] I have set out my consideration of each below.

s.387(a) Whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees)

• [53] In order to be a valid reason, the reason for the dismissal should be "sound, defensible, or well founded"[18] and should not be "capricious, fanciful, spiteful or prejudiced."[19] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[20]

• [54] Where a dismissal relates to an employee's conduct, the Commission must be satisfied that the conduct occurred and justified termination.[21] However, dismissal must be a justifiable response to the relevant conduct or issue of capacity. A reason not of sufficient gravity to justify dismissal is not sound, defensible or well-founded.[22]

• [55] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.[23]

• [56] Deputy President Asbury (as she was then) summarised the relevant principles in relation to an employer's onus of establishing that there was a valid reason for a dismissal on the balance of probabilities as follows in Mellios v Qantas Airways Limited, which was confirmed on appeal by the Full Bench:[24]

"[17] In considering whether there is a valid reason for the Applicant's dismissal, I am required to be satisfied on the balance of probabilities that he engaged in the alleged misconduct or in misconduct to which dismissal was a valid, sound and defensible response. I must be conscious of the gravity of the allegations and the ramifications for the Applicant if they are made out. However, the standard of proof does not change and the issues in dispute must be determined on the balance of probabilities. Put another way, it must be more probable than not that the Applicant engaged in the relevant misconduct."

• [57] I have applied these principles to the matter before me.

• [58] In the present case, it is not in dispute that a reason for termination was the serious breach of data confidentiality and information security that occurred on the 5th of May. Ms McKenney acknowledges this conduct occurred. She presents rational explanations for why she acted in the way she did, which I have considered. I accept Ms McKenney was not acting with malice or intent in emailing herself confidential information of the Respondent. I also accept there is some basis for her to consider that there was nothing inappropriate in her conduct. I am satisfied of this because of the employer's practice of facilitating the use of personal email addresses and because of their failure to clearly articulate personal email addresses could only be used if registered with the employer for matters concerning the individual employee.

• [59] Despite these conclusions, the significance in the volume and substance of material Ms McKenney transferred cannot be overlooked. The Respondent's evidence is that it contained commercially sensitive and private information of both the Respondent and its clients. The unchallenged evidence is that some 198 emails were transferred, inclusive of some 80% of the Respondent's client data.[25] From the Respondent's perspective, this was a serious matter that demanded a serious and urgent response. I accept this to be the case.

• [60] On its own, I am satisfied the transfer for data amounts to a valid reason for dismissal that is sound, defensible and well founded.

• [61] Compounding the Respondent's concerns and position was the fact that it was not until the 6th of May, after the data breach occurred, that Ms McKenney made them aware she was unwell enough for work until at least the 10th of May. Up until that time their attempts to contact her to clarify her return to work had been unsuccessful.

• [62] Ms McKenney submits she was seriously unwell after the 30th of April and was unable to get to her doctor until the 6th of May. She accepts that the first time she made her employer aware she was unwell by providing a medical certificate was on the 6th of May.[26]

• [63] While I accept this evidence, I am also satisfied that her employer had not received any further clarification from Ms McKenney of her condition or intentions after the 30th of April, despite attempts to contact her. On receipt of Ms McKenney's request for sick leave on May 6th, the Respondent acknowledged it would be considered and responded to at the conclusion of its investigation into the data breach.[27]

• [64] Following the data breach, the Respondent also sought the return of Ms McKenney's computer and phone to facilitate their investigation and ensure the integrity of their data. I am satisfied that this is not an unreasonable request.

• [65] Ms McKenney did not return the equipment as directed. She submitted she was unable to do so because of her health and that she felt uncomfortable returning to the workplace, offering to return the items to a neutral location. Ms Li advised Ms McKenney she was able to accommodate her request. Ultimately, by the 9th of May the items had not been returned and the Respondent determined this to be a further reason for dismissal.

• [66] I have considered Ms McKenney's explanations as to why she did not comply with her employer's directions. While I consider these reasons plausible, the fact remains that her employer was legitimately concerned about the integrity of their data. They sought the return of company equipment to act on these concerns. They did so reasonably and proposed accommodations involving Ms Li travelling to meet Ms McKenney at a neutral location. The items were not returned and Ms McKenney failed to comply with a reasonable direction. In doing so, I am satisfied her actions provided another sound and valid reason for her termination.

• [67] It follows from the above, I am satisfied the Respondent had valid reasons for her dismissal and that this finding weighs against a conclusion that Ms McKenney was unfairly dismissed.

s.387(b) Whether the person was notified of that reason

• [68] Proper consideration of s.387(b) requires a finding to be made as to whether the Applicant "was notified of that reason". Contextually, the reference to "that reason" is the valid reason found to exist under s.387(a).[28]

• [69] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[29] in explicit,[30] plain and clear terms.[31]

• [70] As identified by the Full Bench in Crozier v Palazzo Corporation Pty Ltd:

"As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before a decision taken to terminate their employment in order to provide them an opportunity to respond to the reason identified."

• [71] Ms McKenney accepts that on May 6th she was provided with a letter asking her to explain her conduct the previous day.[32] The following day she was also provided with a letter directing her to return the company equipment, warning any failure to do so may result in further action.[33] On the 8th of May, she was informed of the outcome of the company's investigation and findings of her misconduct, prior to being informed of the decision to terminate her employment on May 9.[34]

• [72] I am satisfied the Respondent clearly set out its allegations of serious misconduct and provided the reason for the termination of employment. As I have been satisfied that Ms McKenney was notified of the valid reason for her termination, I consider this factor weighs against a conclusion that the termination of her employment was unfair.

s.387(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

• [73] It is not contested that Ms McKenney was provided an opportunity to respond to the allegation against her in relation to breach of company confidentiality and data security.

• [74] I consider this factor weighs in favour of the Respondent.

s.387(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

• [75] This factor is not relevant to the facts of this case. There is no evidence or submission that Ms McKenney neither requested nor was denied representation. I consider this factor to be neutral.

s.387(e) If the dismissal related to unsatisfactory performance by the person‑ - whether the person had been warned about that unsatisfactory performance before the dismissal

• [76] Ms McKenney was not terminated because of unsatisfactory performance. As such, this is not a relevant factor, and I consider it to be neutral to my determination of this matter.

s.387(f) The degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal and s.387(g) - Whether the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise impacted on the procedures followed

• [77] The Respondent is not a small business, while perhaps it is without a dedicated human resource specialist, it has some level of leadership and people management professionals, including Ms Wu and Ms Li.

• [78] While I have considered these factors, I do not consider the significance of the employer's size, lack of a dedicated HR specialist or status as a provider of NDIS services to community members warrants consideration of these factors in their favour.

• [79] I therefore consider this to be a neutral factor.

s.387(h) Any other matters that the FWC considers relevant

• [80] The provisions of s.387(h) requires the Commission to take into account any other matters it considers relevant. In the circumstances of this case, Ms McKenney identifies the bullying and mistreatment she suffered from the beginning of 2025 as a relevant factor. She further identifies an anomaly in how the Respondent considered her breach of confidentiality to that of another employee who was involved in post termination discussions between the parties. Ms McKenney submits in this regard that the other employee also appears to have breached a confidentiality requirement and remains employed, whereas she has been dismissed. The Respondent does not identify any other matters of relevance to be considered. I consider each of Ms McKenney's submissions in turn below.

• [81] I accept that there appears to be some basis for Ms McKenney being aggrieved by what occurred on the 7th of January. I do not, however, consider the evidence set out above establishes that this event, or any other act of differential treatment towards her had any impact on this decision. The Respondent has maintained consistently that the only reason for Ms McKenney being dismissed was her conduct engaging in the data breach and failure to follow reasonable directions to return her equipment. I have found and am satisfied that this is the case. On this basis, I do not accept Ms McKenney's assertions of bullying and differential treatment, which are denied, are matters relevant to the fairness, or otherwise, of her dismissal.

• [82] I have considered Ms McKenney's years of service with the Respondent and associated entities. I have also considered her clean employment record and the explanations she provided for her conduct along with the explanation she provided for not making her employer aware of her inability to attend work from 30th April until the 6th of May. Ms McKenney also says she told Ms Li she was unwell and assumed her employer would have known this was the case. Ultimately, however, assuming what her employer would have known is not enough. I find no reasonable explanation as to why Ms McKenney was unable to make her employer aware of her inability to work after the 30th of April. The fact that she did not, increased her employer's concerns about what occurred on May 5th. I am satisfied that this was a reasonable response from her employer in the circumstances of this case. I am also satisfied that the subsequent action they took in respect of Ms McKenney's conduct was also sound, well founded and reasonable.

• [83] In terms of the differential treatment of another employee who is alleged to have breached the confidentiality and privacy requirements of settlement discussion, I do not consider these matters to be comparable. Ms McKenney's conduct was unsolicited, not part of any "confidential" post termination discussion and not before the FWC. While she has accounted for her conduct, it does not excuse or justify the gravity of her offence which I am satisfied provided a valid reason for her employment to be terminated.

• [84] On this basis, I do not consider there are any other relevant matters to be considered.

Is the Commission satisfied that the dismissal of Ms McKenney was harsh, unjust of unreasonable?

• [85] I have considered and made findings in relation to each matter specified in s.387 of the Act as required. I must now consider and give due weight to each of these findings as a fundamental element in determining whether Ms McKenney's dismissal was harsh, unjust or unreasonable.[35]

• [86] I have been satisfied of a valid reason for dismissal and that this factor weighs in favour of the Respondent. I have also considered the fact Ms McKenney was provided notice of the valid reason and an opportunity to respond to it also weigh in the Respondent's favour. I have considered each of the other factors set out in s.387 to be the neutral and determined there are no other relevant matters to be considered.

• [87] The balance of these considerations weighs in favour of the Respondent and a finding that the dismissal was not harsh, unjust or unreasonable. I, therefore, find that Ms McKenney was not unfairly dismissed.

• [88] Accordingly, this application is dismissed.

[1] Transcript of Proceedings on 8 October 2025, PN1500-1540.

[6] Attachment 1.17 to Applicant's Submissions, Digital Court Book ('DCB') p.77.

[7] Applicant's Submissions in Reply dated 23 September 2025, DCB p.84.

[10] Attachment 5.2.2, Respondent's Submissions, DCB p.217.

[14] Termination Letter dated 9 May 2025, Attachment to Respondent's Submissions, DCB p.220.

[15] See Australian Hearing v Peary [2009] AIRCFB at [39].

[17] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB Ross VP, Lacy SDP, Simmonds C, 21 March 2002, at [69].

[18] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 at [373].

[20] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681 at [685].

[21] Edwards v Justice Giudice [1999] FCA 1836 at [7].

[22] See Raj Bista v Glad Group Pty Ltd t/a Glad Commercial Cleaning [2016] FWC 3009 [34] and Kylie Smith v Bank of Queensland Ltd [2021] FWC 4 [124], [126].

[23] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) at [23]-[24].

[24] [2020] FWC 2989.

[27] Attachment 5.2.1, Respondent's Submissions, DCB p.215.

[28] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [55].

[29] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [151].

[30] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

[32] Attachment 5.2.1, Respondent's Submissions, DCB p.215.

[33] Attachment 5.2.6, Respondent's Submissions, DCB p.225.

[34] Attachment 5.2.2 and 5.2.4, Respondent's Submissions, DCB p.219-220.

[35] See ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) IR 117 357 [51]; Edwards v Giudice [1999] FCA 1836 [6]-[7].

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