[2025] FWCFB 190

Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2025] FWC 798 of Deputy President Dobson at Brisbane on 24 March 2025 in matter number U2024/12332 - Unfair dismissal proceedings - Employees dismissed for serious misconduct - Alleged miscount of chicken tails to obtain financial advantage - Allegation denied by employee - Whether employee denied procedural fairness in proceedings before the Commission - Reliance on content of the employer's submissions as constituting evidence - No evidence to support serious allegation - Permission to appeal granted and appeal allowed - Application redetermined - Dismissal harsh, unjust and unreasonable - Application remitted to a single member for determination with respect to remedy.

[1] Wen-Kuan Wang has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act), for which permission to appeal is required, against a decision of Deputy President Dobson made on 24 March 2025 in matter number U2024/12332[1]. The decision dealt with an application by Mr Wang made pursuant to s 394 of the Act for an unfair dismissal remedy. The Deputy President dismissed the application finding that Springtime Poultry Pty. Ltd. (Springtime) had established a valid reason for the dismissal of Mr Wang and that, in the circumstances, the dismissal was not harsh, unjust or unreasonable.

[2] Mr Wang was employed by Springtime as a casual poultry processing worker from 15 October 2021 until his dismissal on 8 October 2025. Springtime is a labour hire company that supplies labour to a poultry processing facility operated by Bartter Enterprises Pty Ltd (Bartter) in Mareeba, Queensland. On 8 October 2025, Mr Wang was required to attend a meeting with Mr Thai Quoc Tran who was the Director of Springtime. During the meeting Mr Tran put two allegations to Mr Wang. Firstly, that he had miscounted the number of chicken tails in his crate on 30 September 2025. The number of tails recorded by Mr Wang was 24 in excess of the number identified through an audit check. Secondly, that Mr Wang had caused disharmony within the team.

[3] The significance of the tail miscount is that Springtime applies a bonus system which includes a payment of $0.50 per tail of a deboned chicken. Mr Wang routinely deboned up to 4,760 chickens per week, resulting in weekly earnings under the bonus system of approximately $2,380. Mr Wang's alleged miscount of overstating the number of tails by 24 on 30 September 2025, would have resulted in an additional payment of $12 to Mr Wang. Having determined that Mr Wang by his conduct had engaged in fraud and created disharmony in the team, Springtime summarily dismissed him on 8 October 2025.

[4] After finding that Mr Wang had been dismissed within the meaning of s 386 of the Act and dealing with the other 'initial matters' the Deputy President proceeded to consider the merits of the application and whether Mr Wang's dismissal was harsh, unjust or unreasonable taking into account the matters set out in s 387 of the Act.[2] In doing so the Deputy President commenced by making a number of factual findings. These included that:

(a) Mr Wang, whose first language is Mandarin, submitted that he had limited English language skills and worked as a poultry process worker for Springtime having commenced employment on 15 October 2021.[3]

(b) Springtime makes bonus payments to employees for various poultry processing tasks. The highest bonus is paid for deboning chickens, the calculation of which is made by the process worker counting the number of tails that are cut off the chickens during deboning, marking the tails on a tally sheet and placing them in a crate Random counts of tails are carried out by supervision to check the accuracy of the reported counts.[4]

(c) Second crates are available for process workers to use for placing tails in so as to avoid the overflow of tails when one crate is full. Mr Wang's claimed lack of knowledge of the second crate being available for this purpose was found to be unconvincing in circumstances where Mr Wang knew he was paid for every tail he placed in a crate.[5]

(d) A tally sheet completed and signed by Mr Wang for chickens he deboned on 30 September 2025 revealed that he deboned more chickens than any other Springtime staff during each of the three time periods on that day. A random audit conducted on 30 September 2025 identified a discrepancy in Mr Wang's tally count, revealing 24 fewer tails than the number recorded by Mr Wang on his tally sheet for that day. That initial audit count was confirmed by two other persons and a search for lost tails failed to locate any.[6]

(e) The Deputy President accepted there was a shortfall of 24 tails against the number of tails recorded by Mr Wang on 30 September 2025.[7]

[5] The Deputy President then considered the disciplinary meeting held on 8 October 2025 that followed the tally miscount being identified. During the meeting two particular allegations were raised with Mr Wang. The first was that Mr Wang had been creating disharmony in the team. The Deputy President found that Mr Wang was provided with the relevant details by Mr Tran during the meeting in relation to that first allegation, specifically that Mr Wang had told another employee to not listen to Mr Tran, that Mr Wang had been saying bad things about Mr Tran and that Mr Wang had said to another employee that Mr Tran was a bad boss and didn't look after his staff.[8]

[6] The second allegation put to Mr Wang during the 8 October 2025 meeting was that relating to Mr Wang's 'incorrect tail count'. The Deputy President relevantly found as follows in relation to the matter being raised with Mr Wang in the meeting: [9]

[25] In the meeting, in relation to the counts:

• Mr Tran provided Mr Wang with a copy of his employment contract to confirm that Mr Wang had signed it;
• Mr Tran then showed Mr Wang the tally sheet showing the over reported count incorrect by 24 and the checks. He provided Mr Wang an opportunity to check that his debone numbers were correct;
• Mr Wang denied his count was inaccurate;
• Mr Wang claimed that he asked Ben Dickson to check his count with the inference that he had double checked that his count was indeed correct, however Mr Tran concluded that Mr Wang was being untruthful as Mr Tran had confirmed that the error was discovered as a result of a random audit and that 3 people had checked and verified that the count was incorrect by a margin of 24 in Mr Wang's favour, that 2 of the 3 checks had been performed by Springtime's client and 2 of the 3 checks had been performed by people who were unaware whose crate they were counting to avoid any bias;
• Mr Tran advised Mr Wang that a count variance in excess of 5 would result in the termination of his employment;
• Mr Tran explained to Mr Wang that 3 people had checked his count;
• Mr Wang asked for the cameras to be checked;
• Mr Tran explained to Mr Wang that the company policy needed to be followed in respect of counts and where gross misconduct has been proven, it would result in the termination of employment;
• Mr Wang requested a copy of the relevant documents. Mr Tran provided them to him and Mr Wang checked those documents; and
• Mr Tran told Mr Wang his $200 bond would be returned and asked him to return his ID card which Mr Wang did. (Citations omitted)

[7] On the basis that Mr Tran's contemporaneous notes of the meeting were not contested, the Deputy President accepted his comments about the employment contract reference to the policy and procedures and the consequences of incorrect tail counts. This, the Deputy President stated, was confirmed by Mr Wang's evidence and the uncontested termination letter which refers to clause 6.6 of the employment contract that spells out:[10]

• Counts will be audited on a random basis to check for accuracy;

• If the audit number doesn't match the number reported by the employee, an investigation will occur;

• A miscount of up to 5 will be considered reasonable due to human error;

• Miscounts greater than this number may be found to be fraudulent; and

• If this occurs the consequence will be immediate dismissal.

[8] The Deputy President then considered further evidence of Mr Wang and found his evidence to be unreliable and self-serving in a number of respects. This included that he initially denied in his statement then conceded during cross-examination that his supervisor Ms Chou had previously raised the issue of his tail miscounts on a number of occasions. Further, Mr Wang's denial that no one had let him know about using a second crate to avoid spillage of tails from the first crate was contradicted by his own witness statement according to the Deputy President. The Deputy President also found Mr Wang's evidence to be at odds with Springtime's evidence. She concluded that 'these multiple examples demonstrated an unfortunate pattern lacking in honesty'.[11]

[9] The Deputy President also considered the credit of Mr Wang's supervisor Ms Chou who gave evidence of an incident on 2 September 2022 when she had allegedly thrown a chicken cutlet which had struck Mr Wang in the stomach, following which Mr Wang made allegedly false statements about the incident. Ms Chou's evidence also went to disparaging comments allegedly made by Mr Wang about Mr Tran. While Ms Chou's evidence was contested by Mr Wang, the Deputy President found Ms Chou's evidence regarding Mr Wang's comments about Mr Tran to be more credible and that she was unable to accept Mr Wang's denial, further finding that Mr Wang throughout the matter had consistently denied all allegations and provided evidence that was often misleading and contradictory.[12]

[10] The Deputy President then turned to consider each of the s 387 criteria in assessing whether Mr Wang's dismissal was harsh, unjust or unreasonable. Commencing with consideration of whether there was a valid reason for Mr Wang's dismissal (s 387(a)), the Deputy President found that his failure to accurately record the number of tails in his tally count on 30 September 2025 constituted a failure to comply with the company policy, as the error was in excess of five tails. In making that finding the Deputy President was satisfied that Mr Wang was aware of the policy and the need to ensure his count was '100% correct every day'. The Deputy President further found that while Mr Wang's conduct in respect of creating disharmony in the workplace might not be enough to establish a valid reason for dismissal, when considered in conjunction with Mr Wang's policy breach of inaccurately recording his tail count, this destroyed the trust and confidence Mr Tran held in Mr Wang.[13]

[11] The Deputy President went on to find that during the 8 October 2025 meeting, Mr Tran put the two conduct allegations to Mr Wang for his response. Mr Wang was then notified by Mr Tran both orally and in writing of his summary dismissal, the reasons for which were included in the letter of termination given to him at the conclusion of the meeting. The Deputy President was satisfied that Mr Wang was notified of the reason for his dismissal (s 387(b)).

[12] The Deputy President was also satisfied that Mr Wang had an opportunity to respond to the allegations prior to his dismissal (s 387(c)), that opportunity being provided in the 8 October 2025 meeting, supported by the provision of a copy of the 30 September 2025 tally sheet for Mr Wang to check. She dismissed Mr Wang's concerns that he was not afforded an effective opportunity to respond due to his inability to verify the accuracy of the tally count. In doing so, the Deputy President referred to assertions made by Mr Wang that were unsupported by evidence.[14]

[13] The Deputy President went on to find that there was no unreasonable refusal by Springtime to allow Mr Wang a support person for the 8 October 2025 meeting and as such this criteria (s 387(d)) was irrelevant on the facts of the case.[15]

[14] With respect to whether Mr Wang had been warned about unsatisfactory performance before the dismissal, the Deputy President rejected his contention that the tail miscount should be regarded as a performance issue. Rather, the Deputy President found that Mr Wang stood to benefit financially from his miscount of tails and was well aware that incorrect recording of tails to the extent revealed by the random audit constituted gross misconduct that would result in instant dismissal. The Deputy President was satisfied that the established conduct should be treated as misconduct rather than unsatisfactory performance. The criteria (s 387(e)) was consequently not relevant to her consideration.[16]

[15] The Deputy President found that Springtime was a relatively small business, that Mr Tran lacked the sophistication and expertise of a larger organisation and this impacted on what was an imperfect termination process. This resulted in poor procedures being followed in effecting the dismissal as well as how Springtime had dealt with previous issues that might have warranted more formal warnings. The flawed processes along with the absence of any dedicated human resources staff (s 387(f) and (g)) were matters the Deputy President found needed to be considered.

[16] Mr Wang advanced a number of other matters he contended ought to be weighed, including the possibility of an incorrect tally count arising from human error, tails being dislodged from his crate, or fallen tails being washed from the area. The Deputy President observed that these responses were not provided by Mr Wang during the 8 October 2025 meeting, noted the contradictions in Mr Wang's evidence and also that a second crate was available and that the cleaner at the end of Mr Wang's shift on 30 September 2025 had not found any lost tails. In addressing Mr Wang's further complaint that the disciplinary process was procedurally unfair, the Deputy President accepted that the termination process was imperfect but was persuaded that the 'essential core elements were adequately addressed in all the circumstances'.[17]

[17] The Deputy President then concluded by finding that '[h]aving considered and weighed those matters arising, I am not satisfied that Mr Wang has discharged his onus of demonstrating that his dismissal was harsh, unjust or unreasonable'. Having found Mr Wang was not unfairly dismissed, the Deputy President dismissed Mr Wang's unfair dismissal application.[18]

[18] Mr Wang advances six grounds of appeal, those being the Deputy President erred in:

• (1) finding there was a valid reason for dismissal based on erroneous findings unsupported by evidence that Mr Wang had miscounted tails and/or created disharmony amongst the team.

• (2) finding that the alleged conduct constituted serious misconduct in circumstances where there was no evidence to support a finding that the alleged conduct actually occurred.

• (3) finding that the dismissal was not harsh, unjust or unreasonable in circumstances where the alleged misconduct was established, because the dismissal was (a) disproportionate to the conduct and (b) the dismissal process was procedurally unfair.

• (4) failing to act judicially because she treated and relied on Springtime's Outline of Submissions as evidence when it was not evidence, the effect of which was to deprive Mr Wang of procedural fairness;

• (5) relying upon and treating as evidence Springtime's Outline of Submissions; and

• (6) by making significant errors of fact by finding that Mr Wang had been warned about conduct matters (including miscounts), had the opportunity to respond to any valid reason for dismissal, miscounted the number of tails on 30 September 2024 and created disharmony in the workplace.

[19] An appeal under s 604(1) of the Act is an appeal by way of rehearing and the Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[19] There is no right to appeal. An appeal may only be made with the permission of the Commission.

[20] This appeal is one to which s 400 of the Act applies. Under s 400(1), the Commission must not grant permission to appeal from a decision made by the Commission in relation to unfair dismissal matters unless it is satisfied it is in the public interest to do so. An appeal of an unfair dismissal decision involving a question of fact can only be made on the grounds that the decision involved a significant error of fact.

[21] The test under s 400 has been characterised as 'a stringent one.'[20] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[21] The public interest is not satisfied simply by the identification of error,[22] or a preference for a different result.[23] In GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266, a Full Bench of the Commission identified some of the considerations that may attract the public interest:[24]

... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.

[22] Section 400(2) provides that, with respect to factual findings made in unfair dismissal proceedings, review on appeal is only available if there has been a 'significant' error of fact. A person may not appeal on grounds of an alleged error of fact that does not reach the significance threshold.

[23] Mr Wang contends that it is in the public interest to grant permission to appeal as the decision is attended by sufficient doubt as to warrant its reconsideration, is illogical, and substantial injustice may result if leave to appeal were not granted. Mr Wang points to a denial of procedural fairness in the manner in which the proceedings before the Deputy President was conducted, that is the Deputy President relied on Springtime's Outline of Submissions as evidence on which Mr Wang was not put on notice or able to properly respond. Mr Wang also contends that the decision was replete with significant factual errors and there was insufficient evidence to establish that the alleged misconduct actually occurred. Further, even if the conduct occurred as alleged, Mr Wang contends that dismissal was a disproportionate response rendering the dismissal harsh.

[24] We are satisfied it is in the public interest to grant permission to appeal. For the reasons that follow below, we have concluded that Mr Wang was denied procedural fairness at first instance by reason of the Deputy President treating Springtime's Outline of Submissions as evidence and not putting Mr Wang on notice of that intention. This had the effect of depriving Mr Wang of an opportunity to properly respond to the 'evidence' relied on by the Deputy President. Reliance on that 'evidence' by the Deputy President also underpinned a number of critical factual findings made by the Deputy President that supported a valid reason for Mr Wang's dismissal having been established. The appeal also raised issues of wider importance in relation to the proper approach to the receipt of evidence in Commission proceedings.

[25] During the appeal proceedings, Springtime sought the admission of new evidence. The evidence sought to be introduced by Springtime was a copy of Mr Wang's Employment Agreement and a witness statement of Ben Dixon, the supervisor of Bartter who allegedly conducted the audit of Mr Wang's tally count on 30 September 2024.

[26] The principles ordinarily applied to the discretion to admit new evidence, or to consider further material, on appeal are set out in Akins v National Australia Bank (1994) 34 NSWLR 155. In that case, the New South Wales Supreme Court identified three conditions which need to be met before fresh evidence can be admitted. These are: (1) it must be established that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance; (2) it must be evidence which is of such a high degree of probative value that there is a probability that there would have been a different result at first instance; and (3) the evidence must be credible.[25] While it is permissible in an appropriate case to depart from the principles set out in Akins,[26] it will be rare for fresh evidence to be admitted on appeal where the conditions in Akins are not met.

[27] In respect of Mr Dixon's statement, the statement was signed on '31/11/2024'. Putting aside that such a date does not exist, it appears that the statement was prepared several weeks prior to the hearing before the Deputy President on 9 January 2025. The statement goes squarely to the key matter considered by the Deputy President, namely, whether there had been a miscount of tails by Mr Wang. Springtime had an opportunity to lead that evidence at first instance and decided not to. To allow the evidence to be introduced now would result in procedural unfairness to Mr Wang in circumstances where it was unable to be tested at first instance and was not able to be considered by the Deputy President. We consequently decline to receive Mr Dixon's statement as further evidence on appeal.

[28] In relation to the Employment Agreement, we note that part of the Employment Agreement was in evidence before the Deputy President, specifically Schedule B - Bonus Piece Rate Schedule. For the sake of completeness, it is appropriate for us to receive the full Employment Agreement into evidence on appeal.[27]

[29] It is convenient to commence our consideration by dealing firstly with grounds 4 and 5 together. The gravamen of these two grounds is that the Deputy President relied on and treated Springtime's submissions at first instance as evidence to be relied upon in making findings of fact. In doing so the Deputy President is said by Mr Wang to have deprived him of procedural fairness and to have failed to act judicially.

[30] Before considering Springtime's submissions said to have been relied on in error by the Deputy President, it is necessary to identify Springtime's evidence that was actually tendered in the proceedings before her. Early on in the proceedings, the Deputy President raised a concern with Springtime about the evidence it was seeking to rely on. The Deputy President said as follows:[28]

THE DEPUTY PRESIDENT: I do have some concerns that I want to raise, and, Ms Ong, it's in particular about your evidence. You have filed two documents, which you call - or three, rather - evidence marked A1, A2, A3. They're not attached to any sworn witness statement. You've made submissions from yourself about a whole heap of facts which are not in evidence. Who are you intending to swear in this evidence? Because I can't just (indistinct) statements from nowhere that nobody has sworn. You can't lead evidence from the Bar table in your submissions, Ms Ong.

So in what way are you - you've got a witness statement only from one witness, Ms Ting. And Ms Ting's evidence is not going to issues that are in contest - substantially in contest (indistinct). She deals with evidence about a particular matter, and I (indistinct) go no further than to say that. But you don't have any other evidence about the substantial issues which are addressed in your submissions.

[31] What then followed was an exchange between the Deputy President, Springtime's legal representative, Ms Ong, and Mr Wang's representative at first instance, Mr Buckley of the AMIEU. Ms Ong acknowledged the evidentiary shortcomings raised by the Deputy President and spoke to the difficulty of calling Springtime's Director Mr Tran to give evidence although she accepted he may be called if required.[29] The Deputy President then specifically identified the need for Mr Wang to be afforded procedural fairness and referred to the directions that had been issued.[30] For his part, Mr Buckley objected to Mr Tran being called to give evidence unless he provided a witness statement on which instructions could then be sought from Mr Wang. That objection was maintained even though the matters on which Mr Tran may have given evidence were dealt with in Springtime's written submissions.[31]

[32] Mr Buckley explained his objection as follows:[32]

MR BUCKLEY: I'd have no objection in relation to the documents. But in relation to the submissions, it's not necessarily clear whether all of those matters are first-hand observations of Mr Tran, or whether they are second-hand hearsay, or whether they come from somewhere else. And so I would object to that being put before the Commission without a proper witness statement being provided to the applicant.

[33] When pressed by the Deputy President in relation to Mr Tran being sworn in to affirm Springtime's submissions and annexures, Mr Buckley advised that he took no objection to Mr Tran being sworn in for the purpose of admitting the annexures as evidence but maintained his objection to Springtime's submissions being admitted as evidence through Mr Tran.[33] A further exchange between the Deputy President and Ms Ong is also instructive in which the Deputy President communicated her decision that only Springtime's Form F3 and documents annexed to its submissions would be received as evidence through Mr Tran:[34]

THE DEPUTY PRESIDENT: Okay. Ms Ong, I will allow Mr Tran to swear in the evidence marked A1, A2, A3. The further evidence that you filed yesterday: I'm sorry, but I cannot admit that evidence. It has not been filed in accordance with the directions. And again, the applicant is entitled to consider that evidence, and provide a response to it. And by you filing that evidence at the last minute, that does not afford the applicant the natural justice and procedural fairness that they're entitled to. You were given very clear directions, and as a legal practitioner, I'm sure you understand the importance of that, and that that was your opportunity to provide (indistinct).

MS ONG: I understand, Deputy President. Thank you.

THE DEPUTY PRESIDENT: And, Ms Ong, I am very concerned about the case, given the way in which you've presented your material, purely from the perspective that the substantial evidence that you've filed in your case is by way of submissions from you as legal practitioner, and you cannot lead evidence (indistinct) my concerns. I will start with you, then, first, Mr Buckley. Who do you intend to call as your first witness? You have only witness, so I'm assuming it's Mr Wang.

[34] After Mr Wang had completed his evidentiary case, the Deputy President proceeded to then deal with Springtime's material that would be admitted as evidence through Mr Tran. The following documents were received as evidence through Mr Tran: Springtime's Form F3 marked as Exhibit R1,[35] the Record of the Termination Meeting dated 8 October 2024 marked as Exhibit R2,[36] a WhatsApp message dated 30 August marked as Exhibit R3,[37] the Springtime Tally Sheet from 30 September 2024 marked as Exhibit R4[38] and the Bonus Remuneration Piece Rate Schedule B marked as Exhibit R5.[39] After these documents were received in evidence, Mr Tran was released from the witness box without cross-examination or being questioned by the Deputy President. Tellingly, the Deputy President said as follows in releasing Mr Tran:[40]

THE DEPUTY PRESIDENT: Thank you, Mr Tran. I would ordinarily have liked to ask you some questions, but because you haven't made a statement in these proceedings, I don't feel it's appropriate that I can. So thank you. I'll excuse you now.

[35] For the sake of completeness, Ms Chou also gave evidence for Springtime with her witness statement marked as Exhibit R6, on which she was cross-examined.[41]

[36] During closing submissions, the Deputy President returned to the matter of Springtime's evidentiary case during an interaction with Ms Ong regarding the central allegation of misconduct, that of the fraudulent or inaccurate tally count of Mr Wang on 30 September 2024. The following exchange between the Deputy President and Ms Ong occurred:[42]

THE DEPUTY PRESIDENT: The evidence that you've put from the respondent about the count - there's no witness statements from a single person that counted - there's no evidence before the Commission the count was wrong, actually. Apart from your assertions in your submissions, which are not evidence, there is no evidence before the Commission. You've not put (indistinct) in. You've not got witness statements from any of the people that have allegedly counted the chickens on that day. Nothing.

MS ONG: Deputy President, we do actually have a statement from Ben Dixon, who is the team leader, at this stage. (Indistinct).

THE DEPUTY PRESIDENT: But you had directions to file statements.

THE DEPUTY PRESIDENT: And I'm sorry, you've put no evidence before the Commission, at all, of a count, any time, by anyone. You've made assertions through your submissions. You cannot lead evidence in your submissions. You have put no evidence before the Commission of a single person counting that day, besides the tally sheet, which you have not even interpreted for me - the evidence.

MS ONG: Sorry, there was an effort to interpret that in the evidence, unfortunately, but I didn't have the opportunity to do so during the course of this hearing. But would you like me to get some - - -

THE DEPUTY PRESIDENT: Ms Ong, you had every opportunity. You were given directions to file witness statements and evidence. You were given an opportunity to file; Mr Buckley had right of reply, but there was nothing to reply to, because the only evidence you filed was Ms Chou's statement. You filed nothing else.

THE DEPUTY PRESIDENT: That's not knowledge before me in this matter, Ms Ong. I'm not allowed to go and look at other matters that are before the Commission. It's not for me to - it's your responsibility to put your case, and you have not. You made oral submissions at the beginning of today, in response to me asking you why you put no evidence before the Commission. You told me that Mr Tran suffered from some anxiety and other issues, but you put no evidence before me of that. You cannot lead evidence from the Bar table, Ms Ong. You have not put evidence before me to support the assertions that you've made. There is none. There is no explanation.

In fact, my question to you is why I shouldn't make a negative inference from the fact that you've not put witness statements from any of the people you allege counted the crate on 30 September, why you have not put the video before me from the day on 30 September. The only thing I've got is a record of conversation, which is not annexed to anybody's witness statement, which nobody has been able to explain to me, because it wasn't, again, put into evidence properly.

[37] It is apparent from the comments made by the Deputy President set out above, both at the start of the proceedings and while Springtime was making its closing submissions, that she was alive to the lack of direct evidence going to the central allegation put against Mr Wang that resulted in his dismissal. This point was made forcefully and repeatedly to Ms Ong during proceedings.

[38] Returning now to the decision and Mr Wang's contention that the Deputy President erred in relying on Springtime's submissions as evidence in making factual findings that were adverse to Mr Wang. Relevantly, the Deputy President stated at paragraph [9] that Mr Tran 'swore into evidence the Respondent's Form F3, submissions and the annexures to those submissions at the hearing'. That statement is incorrect to the extent the Deputy President suggested that Springtime's submissions were sworn into evidence. As evident from the transcript of which the relevant passages have been set out above, Mr Tran only swore into evidence Springtime's Form F3 and the annexures to Springtime's written submissions. Mr Wang's representative opposed the submissions being admitted as evidence, a point clearly accepted by the Deputy President at PN50 and reinforced strongly by her in the exchange with Ms Ong during closing submissions. The fact that the Deputy President declined to ask Mr Tran any questions and her stated reasons for not doing so at PN720 is also telling.

[39] Having incorrectly stated that Springtime's written submissions were sworn into evidence, the Deputy President proceeded to treat those submissions as evidence. The decision is replete with references to Springtime's submissions where she relies on that 'evidence' to make findings that were adverse to Mr Wang. By treating Springtime's submissions as evidence, the Deputy President fell into jurisdictional error. For example, at paragraph [20], the Deputy President states that, in relation to the tail count audit conducted by Bartter, a search for the lost tails was conducted to no avail and that the cleaner on Mr Wang's shift on 30 September 2025 did not find any tails during the clean up. In making this factual finding, the Deputy President referred to and relied on paragraph [10] of Springtime's submissions.

[40] At paragraph [25], the Deputy President set out evidence concerning the meeting on 8 October 2025 at the conclusion of which Mr Wang was dismissed. In detailing the meeting, the Deputy President referred to various matters including that Mr Wang's tally error was picked up by an audit, that three people had checked and verified the count was incorrect by 24 tails in Mr Wang's favour and that the checks were performed by people who were unaware whose crate they were counting to avoid any bias. In making these statements, the Deputy President relied on Springtime's submissions.

[41] At paragraph [34], the Deputy President stated that Springtime's evidence was at odds with that of Mr Wang and set out specific conflicts with his evidence. She then went on at paragraph [35] to find Mr Wang's evidence to be 'unreliable and self-serving' apparently relying on the evidentiary conflicts highlighted in the preceding paragraph of the Decision.

[42] Springtime's evidence described by the Deputy President in paragraph [34] to be in conflict with that of Mr Wang was that:

• (a) There had only ever been one other infringement of the count policy. Reference was made by the Deputy President to paragraph [35] of Springtime's submissions.

• (b) The inaccurate count by Mr Wang was by far the greatest number of inaccuracies ever found by Springtime. Reference was made by the Deputy President to paragraph [35] of Springtime's submissions.

• (c) Employees were not permitted under the count procedure to have access to their crates when an error was found to avoid the potential for tampering. Instead, the crate would be checked by at least one independent person. Reference was made by the Deputy President to paragraph [12] of Springtime's submissions.

• (d) Mr Wang had 'on other occasions miscounted tails, always to his advantage' however it had not exceeded the allowance for human error and thus Springtime had not given Mr Wang formal notice. Reference was made by the Deputy President to paragraph [19] of Springtime's submissions.

[43] In identifying and relying on the above evidentiary conflicts, the Deputy President treated Springtime's submissions as evidence when those submissions were unsupported by any direct evidence. Further, in her consideration, the Deputy President goes on to make findings including that Mr Wang's 30 September 2024 tally error was the 'largest ever found'[43] and that it did not escape the Deputy President that 'all the counts in error were all in Mr Wang's favour'.[44] Both of these statements were again made by reference to Springtime's submissions that were unsupported by evidence.

[44] Returning now to grounds 4 and 5 of the appeal, the requirement to act judicially was recently considered by another Full Bench in Xue v Serco Australia Pty Limited [2025] FWCFB 75. The Full Bench in Xue observed that:

[17] The Full Bench determined to quash the decision to dismiss Ms Xue's application for an unfair dismissal remedy for a number of reasons. The first reason is that Ms Xue was denied procedural fairness. The Commission is required to act judicially, and the principles of natural justice apply to proceedings before the Commission. What that means is that the exercise of the Commission's jurisdiction is conditioned by the requirements of procedural fairness. A decision made without affording the parties procedural fairness will exceed the jurisdiction of the Commission.

[18] What procedural fairness requires in any particular case will vary depending on the circumstances. The basic requirement is that a party must have a reasonable opportunity to present their case. For example, in Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116; (2023) 298 FCR 516, the Full Court of the Federal Court recently explained:

Procedural fairness requires that each party be given a reasonable opportunity to present their case: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [40] (Gaudron and Gummow JJ); Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323 at 343 (Deane J). What will constitute a reasonable opportunity depends upon the whole of the circumstances, including the nature of the jurisdiction exercised and the statutory provisions governing its exercise: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-553; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) at [26].

[45] In the circumstances of the present case, the Deputy President wrongly identified that Springtime's submissions had been sworn into evidence by Mr Tran. She then proceeded to treat those submissions as evidence that underpinned findings adverse to Mr Wang. Those findings included findings of dishonesty on the part of Mr Wang. This was despite the Deputy President having identified during the proceedings that Springtime was unable to rely on those submissions as evidence, and that Springtime had made a choice to not file evidence going to critical matters in contest.

[46] Mr Wang was not on notice that the Deputy President intended to rely on Springtime's submissions as evidence and during the course of the proceedings his representative elected not to cross examine Mr Tran on the basis that the submissions were not being treated as Mr Tran's evidence. That was not a forensic error on Mr Wang's part given the Deputy President made clear during the proceedings that it was only the Form F3 and submission annexures that would be admitted as evidence through Mr Tran.

[47] The obligation of the Commission to act judicially and that the principles of natural justice are applicable to proceedings before it is not in doubt.[45] In the first instance proceedings before the Deputy President, Mr Wang was, in our view, denied procedural fairness. He was not put on notice that assertions made in Springtime's submissions would be treated as evidence. He was denied a fair opportunity to test those assertions and respond to matters that were of significance in the Deputy President's decision. This constitutes a jurisdictional error. Accordingly, grounds 4 and 5 are upheld.

[48] By the first and second grounds of appeal, Mr Wang contends that the Deputy President erred in finding firstly there was a valid reason for dismissal on the basis of the alleged tails miscount when there was no evidence to support that finding and, secondly, the finding that Mr Wang created disharmony, which supported the Deputy President's finding of a valid reason for Mr Wang's dismissal, was based on a statement Springtime secured from Ms Chou on the same day the alleged tail miscount occurred, 30 September 2024. That statement, according to Mr Wang, went to an unrelated incident that occurred over two years prior to his dismissal and could not reasonably lead the Commission to make the finding that the Applicant caused disharmony in the workplace.

[49] As we have indicated above, the only direct evidence led by Springtime in relation to Mr Wang's alleged tails miscount on 30 September 2024 was Springtime's F3, the Record of the Termination Meeting dated 8 October 2024, a WhatsApp message dated 30 August reminding employees of the importance of accurate counts, Mr Wang's Tally Sheet for 30 September 2024 and the Bonus Remuneration Piece Rate Schedule B. On the core allegation put against Mr Wang, that of his inaccurate tails count, there was no direct evidence before the Deputy President going to the manner in which the initial audit of Mr Wang's tally count was conducted or of the further check said to have been conducted by Bartter staff. There was simply no evidence before the Deputy President that would establish that Mr Wang's count was inaccurate, much less any evidence that he deliberately falsified his tally for personal gain. As earlier stated, the Deputy President observed herself during the proceedings that Springtime led no evidence on the audit of Mr Wang's 30 September 2024 tally count.

[50] In relation to Ms Chou's evidence concerning Mr Wang allegedly causing disharmony in the workplace, it rises no higher than raising a single incident that occurred over two years previously in which Ms Chou was herself a protagonist during which she threw a cutlet onto a table which then hit Mr Wang. Had the issue of Mr Wang's complaint about the incident been considered serious, it ought to have been dealt with at the time. As to the other comments attributed by Ms Chou to Mr Wang in which he cautioned Ms Chou about Springtime's management, no dates are specified, and Mr Wang disagreed with the statements attributed to him. In circumstances where Ms Chou's statement was procured by Mr Tran on the 30 September 2024, a level of caution in relying on that evidence would have been prudent. Taken at its highest, the evidence does not rise to the level of establishing misconduct that would support a valid reason for Mr Wang's dismissal. We agree with Mr Wang's submission that Ms Chou's evidence could not reasonably lead the Commission to make the finding that the Applicant caused disharmony in the workplace in a manner that could support a finding that there was a valid reason for dismissal.

[51] Section 400(2) dictates that an appeal from a decision in unfair dismissal proceedings can only, to the extent that it is on a question of fact, be made on the ground that that the decision involved a 'significant error of fact'. Section 400(2) requires the Full Bench to consider whether any erroneous finding of fact can be characterised as 'significant' and make an evaluative judgment as to the significance of an error of fact.[46] One circumstance in which an error of fact might be found to be 'significant' arises where the fact was fundamental to the conclusion as to whether the dismissal was unfair.[47] An erroneous finding in relation to a fact which is foundational to the conclusion about whether alleged misconduct took place is likely to be 'significant'.[48]

[52] The findings that Mr Wang had acted contrary to company policy by miscounting the tails to obtain a financial benefit to which he was not entitled and acted in a manner that created disharmony in the workplace, constituted the basis upon which the Deputy President was satisfied there was a valid reason for Mr Wang's dismissal. Those findings were fundamental to the conclusion of the Deputy President that she was not satisfied the dismissal was harsh, unjust or unreasonable. The errors of fact we have identified in relation to those matters can appropriately be characterised as significant.

[53] It follows from the above that grounds 1 and 2 should be upheld.

[54] For the reasons we have indicated above, permission to appeal is granted. We also uphold grounds 1, 2, 4 and 5 of the appeal. Having reached that conclusion it is unnecessary for us to further deal with ground 3. The decision must be quashed. At the hearing of the appeal, both parties agreed that, if the Full Bench grants permission to appeal and quashes the decision, the Full Bench should redetermine the matter. It is appropriate that we redetermine the matter, given the parties' agreement and to save costs and inconvenience.

[55] Before turning to the s 387 criteria, it is necessary deal with the preliminary matters. There was no dispute, and we find that Mr Wang's employment with Springtime was terminated at the initiative of Springtime within the meaning of s 386(1) of the Act. We are also satisfied that the application was made within the required period in s 394(2), Mr Wang was a person protected from unfair dismissal, Springtime is not a small business, and the dismissal was not a genuine redundancy.

[56] Mr Wang commenced employment with Springtime on 15 October 2021, was employed as a casual poultry processing worker, was covered by the Poultry Processing Award 2020 (the Award) and was engaged under an Employment Agreement entered into on 21 March 2023. Mr Wang routinely worked 38 hours per week and was paid in accordance with Schedule B of the Employment Agreement, the 'Bonus Remuneration on Piece Rate Basis'. Relevantly for the present matter, Schedule B provides for a piece rate payment of $0.50 for each deboned whole bird. Mr Wang agrees with Springtime's estimate provided in its Form F3 response that his gross weekly earnings at the time of dismissal was approximately $2,241.32.

[57] While Mr Wang may have been required to undertake other poultry processing tasks, he was mainly engaged in deboning whole birds. He agreed during cross examination that he was reluctant to do other tasks because of the lower bonus paid for such work and that he had in fact refused to 'cut nibbles' at one point. In deboning whole birds, the deboner takes a chicken carcass from a plastic tub near their work station, debones the bird, cuts off the tail bone and places the 'tail' in a crate on the floor underneath their work station. The 'tails' are progressively tallied by the deboner during the course of a shift and recorded on a tally sheet. When deboning whole birds, deboners are paid $0.50 per whole bird based on the number of tails recorded by them on the tally sheet.

[58] Tally counts of employees are randomly audited to confirm their accuracy. Mr Wang's Employment Agreement made clear that where an employee's tally count was found through an audit to not match the amount recorded by the employee, an investigation would be undertaken and if the employee was found to have fraudulently reported their counts, they would be liable to immediate dismissal. The Employment Agreement further states that it was up to the employer to determine allowable miscounts 'within the reason of human error'. Mr Wang was aware of the importance of accurate tally counts being maintained, understood the link to his pay, acknowledged he had been reminded of the importance of accurate tally counts in a group WhatsApp text message dated '30 Aug' and understood that his tally counts along with other workers would be subject to random audits.

[59] On 8 October 2024, Mr Wang received a text message advising him that he was required to attend a meeting that day with Mr Tran. The meeting record (the Record of Conversation) made by Mr Tran records that the attendees at the meeting were himself, Mr Wang and Maska Vidi and that the meeting was held from 1:00pm to 1:24pm. Mr Wang's request at the start of the meeting that a translator be arranged for the meeting was unable to be met. Two matters were raised with Mr Wang during the meeting, that of Mr Wang allegedly causing disharmony amongst team members and inaccurately or fraudulently recording his tail count on 30 September 2025.

[60] In relation to alleged disharmony in the team, the Record of Conversation states that Mr Tran put to Mr Wang that he was making various statements to other employees including that other employees will lose shifts and that Mr Wang was also making employees unhappy. Mr Wang was also accused of making statements about Mr Tran to the effect that he was a bad boss and did not look after his people. Mr Wang is recorded as having denied these allegations in the meeting.

[61] In the proceedings before the Deputy President when dealing with the 'disharmony' allegation, evidence was led from Ms Chou regarding a 2022 incident in which she claims Mr Wang falsely accused her (Ms Chou) of throwing a whole chicken at Mr Wang. She accepted that she threw a chicken piece onto a table which then accidentally hit Mr Wang. She also gave further evidence that Mr Wang had made comments on unspecified dates to the effect she needed to be 'careful about the boss' and that there were many problems with the boss.

[62] When questioned on her evidence in the proceedings before the Deputy President, Ms Chou agreed that she had been requested by Mr Tran to prepare a statement on 30 September 2024. She acceded to Mr Tran's request because she wanted to prove that he was not a bad boss and that she was told by Mr Tran that someone was going to do something to him because he had fired that person. When pressed, Ms Chou agreed that Mr Tran told her that it was Mr Wang who was going to do something.

[63] In his evidence, Mr Wang denied having made statements to other employees that they should not trust Mr Tran. He also says that he was not provided any details during the 8 October 2024 meeting of the persons to whom he was alleged to have made negative comments about Mr Tran. When cross examined on his evidence, Mr Wang denied having told other employees that they would lose their jobs because there was not enough hours of work.

[64] Turning to the second allegation, the Record of Conversation states that it was put to Mr Wang that his tail count was subject to a random audit by Bartter staff on 30 September 2024, that three people checked and confirmed Mr Wang's tally count was over by 24 deboned birds as evidenced by the random check sheet Mr Wang was shown. It was also recorded that Springtime allows for errors of up to five birds, that company policy needed to be followed and that gross misconduct had been proven which would result in Mr Wang's dismissal. Beyond the matters detailed in the Record of Conversation, no other evidence was led by Springtime in relation to the alleged tail miscount by Mr Wang.

[65] Mr Wang stated during the 8 October 2024 meeting and again in proceedings before the Deputy President, that he did not believe his tally count on 30 September 2024 was wrong. He denied he had deliberately overstated the number of deboned birds in his tally count and says he was not shown any evidence of the alleged miscount during the 8 October 2024 meeting. He requested during the meeting to view video footage from within the factory on 30 September 2025. In declining that request Mr Tran stated to Mr Wang that he would himself view the footage.

[66] In his witness statement, Mr Wang states that the issue of his tally counts being inaccurate had never previously been raised with him prior to 8 October 2025. When cross-examined on this point, Mr Wang remained adamant that he had never been spoken to regarding inaccurate tally counts prior to 8 October 2024. Mr Wang also speculated in his evidence about how tails may have been displaced from his crate on 30 September 2024 and washed away by a cleaner in circumstances where his crate was full. Mr Wang also gave evidence on his normal approach to counting his tails, that he normally has a good idea of how many birds he has deboned and would do a double check. He stated that he would normally just recount the tails or had sometimes asked a previous supervisor to check his count.

[67] Mr Wang was pressed during cross examination on a number of matters in relation to his alleged tail miscount. He variously replied that he had never used two crates to hold his tails, confirmed that he along with other fast deboners filled their crates with tails such that they sometimes overflowed and that to manage that issue they covered the full crates with plastic to hold the tails in the crate but there was no plastic on the day of his alleged miscount on 30 September 2024. He further confirmed that during the 8 October 2024 meeting, Mr Tran told him that the random audit of his crate on 30 September 2024 was undertaken by Ben Dixon and two other Bartter staff but that he did not see the audit being undertaken. He also agreed that the miscount in his favour of 24 birds would entitle him to an extra $12.00 and that he was aware of Springtime's policy that a miscount of over five birds would expose an employee to disciplinary action.

[68] At the conclusion of the meeting on 8 October 2024, Mr Tran handed Mr Wang a letter dated 8 October 2024 confirming the termination of his employment. In the letter of termination Mr Wang was found to have caused disharmony within the team and his tally count on 30 September 2024 was found to be fraudulent. The two allegations put against Mr Wang found to have been substantiated were also found to constitute serious misconduct. He was dismissed with immediate effect.

Whether there was a valid reason for the dismissal related to the person's capacity or conduct - s 387(a)

[69] Mr Wang was dismissed by Springtime for fraudulently completing his tally sheet on 30 September 2024 by inflating the number of deboned birds recorded and of causing disharmony amongst the team. Mr Wang denied both allegations during the disciplinary meeting on 8 October 2024 and in proceedings before the Commission.

[70] When considering the evidence, it necessary to bear in mind that the first, and most serious, allegation relied upon by Springtime is that Mr Wang deliberately falsified the tail count to obtain a financial advantage. Although the amount of the financial benefit which Mr Wang stood to obtain was small, the allegation is a serious one involving, if it was substantiated, deliberately fraudulent conduct. Reasonable satisfaction as to whether such an allegation is made out is not attained independently of the nature and the consequences of the fact to be proved. The seriousness of the allegation, the inherent unlikelihood of the alleged conduct and the gravity of the consequences flowing from the finding are matters which could all properly bear upon whether the Commission can be reasonably satisfied that the events occurred as alleged.[49] Such satisfaction 'should not be produced by inexact proofs, indefinite testimony, or indirect inferences'.[50]

[71] The evidence led by Springtime before the Commission in relation to the more serious allegation of Mr Wang fraudulently completing his 30 September 2024 tally sheet included the following. Mr Tran's Record of Conversation for the 8 October 2024 meeting, Mr Wang's tally count of 30 September 2024, Mr Wang's Employment Agreement and a WhatsApp message sent to all of Springtime's employees reminding them of the importance of accurate recording of their tally counts. Mr Wang's Employment Agreement spelt out that tally counts of employees would be randomly audited, investigation of count discrepancies would be conducted and that fraudulent reporting would result in immediate dismissal. We accept that Mr Wang was aware of the importance of accurate tally counting and the consequences of fraudulent reporting.

[72] Turning to the events of 30 September 2025, Mr Wang is accused of recording a tally count of deboned birds on that day that was 24 birds higher than the number revealed by an audit said to have been undertaken by Bartter supervision. Mr Wang was unaware of that audit and the discrepancy was not brought to his attention until he was called to a meeting with Mr Tran on 8 October 2024 at which the allegation was put to him. Mr Tran denied his count was inaccurate and his request to view CCTV footage of the factory on 30 September 2024 was rejected by Mr Tran. Self-evidently, any chance for Mr Wang to properly dispute and/or verify the accuracy of his tally count against the random audit was lost through not being alerted to the alleged discrepancy at the time of the audit on 30 September 2024.

[73] In proceedings before the Commission, no evidence was led by Springtime on the critical matters of how, when and by whom the audit of Mr Wang's tally count was conducted. The absence of such evidence denied Mr Wang and the Commission an opportunity to properly test the allegation of fraud levelled against Mr Wang. Absent such evidence, we are left with Mr Wang's denial that his count was inaccurate. We also accept Mr Wang's unchallenged evidence that he had not been warned or counselled regarding tally miscounts prior to 8 October 2024. We also note that the alleged discrepancy of 24 birds represented a financial benefit to Mr Wang of only $12.00. Put in context, Mr Wang was consistently one of Springtime's most productive poultry process workers and earned a gross weekly wage of approximately $2,241.32.

The submissions made by Springtime in proceedings before the Deputy President, and before us, in relation to the alleged miscount must be rejected as unsupported by evidence. For example, there is no evidence that Mr Wang had been previously warned regarding tally miscounts. Nor is there any evidence that Mr Wang's alleged miscount was the greatest ever recorded by Springtime or that Mr Wang's miscounts were always to his favour. Further, there was no evidence of any steps taken by Springtime to check Mr Wang's work area for missing tails on 30 September 2024.

[74] It follows from the foregoing that there is simply no evidentiary basis to establish to the requisite satisfaction that Mr Wang's tally count on 30 September 2024 was inaccurate let alone fraudulent. We are not satisfied that the alleged tally miscount establishes a valid reason for Mr Wang's dismissal.

[75] Turning to the allegation that Mr Wang caused disharmony in the team. The evidence includes that an incident occurred some 2 years previously involving Mr Wang and Ms Chou during which Ms Chou threw a chicken piece onto a table which then hit Mr Wang. Mr Wang is then said to have falsely claimed Ms Chou threw a whole chicken at him. Reliance on an incident that occurred some two years previously is misconceived. If the matter was judged sufficiently serious at the time, it should have been dealt with then. As regards the other comments attributed by Ms Chou to Mr Wang, there were no details on when these comments were made.

[76] We note that Mr Wang denies the comments attributed to him by Ms Chou. Even if they were made as alleged, they do not rise to the level of misconduct that would establish a valid reason for dismissal. We also approach Ms Chou's evidence with some caution in circumstances where she was requested to prepare a statement by Mr Tran on 30 September 2025 in support of a decision to dismiss Mr Wang. By her own admission during cross examination, Ms Chou was effectively seeking to shore up Mr Tran's position as a good boss. We are not satisfied on the evidence before us that Mr Wang engaged in conduct that caused disharmony in the team. The alleged conduct does not establish or support a valid reason for Mr Wang's dismissal.

[77] We have dealt with the two grounds of misconduct relied on by Springtime but are not satisfied that a valid reason for Mr Wang's dismissal has been established. This weighs strongly in favour of a finding that the dismissal was unfair.

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

[78] 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,[51] and in explicit, plain and clear terms.[52] Absent a valid reason for dismissal, Springtime was unable to comply with the requirement to notify Mr Wang of a valid reason for his dismissal. As we are not satisfied there was a valid reason to support Mr Wang's dismissal, this factor is not relevant to the present circumstances.[53]

Opportunity to respond to any reason related to capacity or conduct - s 387(c)

[79] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee's employment.[54] The opportunity to respond does not require formality and the factor is to be applied in a common-sense way to ensure the employee is treated fairly.[55] Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to the concern, this is enough to satisfy the requirements.[56] As we have found there was not a valid reason for Mr Wang's dismissal, this factor is not relevant to the present circumstances.[57]

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

[80] While Springtime was unable to arrange for the presence of an interpreter, there is no evidence that there was an unreasonable refusal for Mr Wang to have a support person accompany him in the 8 October 2024 meeting. This factor is neutral.

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

[81] The dismissal did not relate to unsatisfactory performance. The factor is neutral.

The degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal - s 387(f)

[82] Springtime's Form F3 indicates that at the time of Mr Wang's dismissal it employed 35 employees. We accept that Springtime is not a large employer and may lack sophisticated procedures in dealing with disciplinary matters. That said, the deficiencies we have identified in the process of dismissing Mr Wang are not fully explained by the size of Springtime. We regard this factor as a neutral consideration.

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 - s 387(g)

[83] It does not appear on the material before us that Springtime had dedicated human resources specialists or expertise in the business. The absence of such expertise assists to explain the deficiencies in the dismissal process we have identified. This weighs in favour of a finding that the dismissal was not unfair.

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

[84] Mr Wang raised a number of matters going to harshness of the dismissal including a number of procedural fairness issues. Specifically, Springtime failed to promptly investigate the allegation and allow Mr Wang an opportunity to challenge or verify the alleged inaccurate count, failing to inform Mr Wang prior to dismissal that they regarded the inaccurate count as fraudulent, failing to provide Mr Wang with the particulars of him causing team disharmony and a failure of Springtime to consider the possibility that the count discrepancy was due to reasons other than fraud. Mr Wang also submitted that the dismissal was harsh in circumstances where there was no evidence he had engaged in fraud and had not been previously warned or told of inaccurate counts.

[85] On the basis of the findings we have already made above, we accept there were procedural deficiencies in the manner in which Springtime conducted the disciplinary process. This included the delay in drawing the count discrepancy to Mr Wang's attention, effectively denying him a reasonable opportunity to dispute and verify his tally count. We also accept that particulars of the team disharmony allegations were not provided to Mr Wang at the 8 October 2024 meeting. It also appears that on or by the meeting on 8 October 2024 Springtime had closed its mind to the possibility that the count discrepancy could have been caused by reasons other than fraud. We also accept that Mr Wang had not been previously counselled or warned regarding count discrepancies.

[86] A number of the matters raised going to harshness have been dealt with previously in relation to whether there was a valid reason for Mr Wang's dismissal and whether the process of dismissal was procedurally fair. Having already found that Mr Wang's dismissal lacked a valid reason it must follow that the dismissal was not only unjust and unreasonable but also harsh for reasons including those raised by Mr Wang under s 387(h). This weighs in favour of a finding that the dismissal was unfair.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust, or unreasonable?

[87] We have made findings in relation to each matter specified in s 387 of the Act as relevant. We must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable.[58]  We have found that Mr Wang's dismissal was not supported by a valid reason. This strongly weighs against the finding that the dismissal was not unfair. Aside from the absence of in-house human resources expertise, all other criteria were either neutral or weighed in favour of a finding of unfairness. Having considered each of the matters specified in s 387 of the Act and having particular regard to the absence of a valid reason, we are satisfied that the dismissal was harsh, unjust and unreasonable.

[88] At the hearing of the appeal, Mr Wang pressed for reinstatement, continuity of employment and orders with respect to lost remuneration. More recently, Mr Wang has advised that he no longer seeks reinstatement since the job is no longer available as a result of Springtime having lost the relevant contract. He now seeks compensation. We have considered whether there is sufficient material before us to determine the question of remedy but have concluded there is not. Consequently, it is appropriate that the outstanding question of remedy be remitted to a single member of the Commission for determination.

[89] For the above reasons, the Full Bench makes the following orders:

(c) The decision of Deputy President Dobson [2025] FWC 798 in matter number U2024/12332 is quashed;

(d) On redetermination, the Commission is satisfied that Mr Wang was unfairly dismissed;

(e) The matter is remitted to Deputy President Masson to hear and determine the question of remedy.

B Swan, National Legal Officer of the Australian Meat Industry Employees Union, for the appellant.

E Ong, solicitor, of EDA Lawyers for the respondent.

[1] Wen-Kuan Wang v Springtime Poultry Pty Ltd [2025] FWC 798.

[2] [2025] FWC 798 at [10]- [15].

[3] [2025] FWC 798 at [17].

[4] [2025] FWC 798 at [18].

[5] [2025] FWC 798 at [18].

[6] [2025] FWC 798 at [20].

[7] [2025] FWC 798 at [21].

[8] [2025] FWC 798 at [22]- [24].

[9] [2025] FWC 798 at [25].

[10] [2025] FWC 798 at [26].

[11] [2025] FWC 798 at [29]- [35].

[12] [2025] FWC 798 at [36]- [37].

[13] [2025] FWC 798 at [38]- [43].

[14] [2025] FWC 798 at [48]- [49].

[15] [2025] FWC 798 at [49].

[16] [2025] FWC 798 at [51]- [53].

[17] [2025] FWC 798 at [59]- [62].

[18] [2025] FWC 798 at [63]- [64].

[19] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [17] (Gleeson CJ, Gaudron and Hayne JJ).

[20] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78 at [43] (Buchanan, Marshall, and Cowdroy JJ).

[21] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216-217 (Mason CJ, Brennan, Dawson and Gaudron JJ): applied in Hogan v Hinch (2011) 243 CLR 506 at [69] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, (2011) 192 FCR 78 at [44]- [46].

[22] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 at [24]- [27].

[23] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 at [26]- [27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, (2014) 241 IR 177 at [28].

[24] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 at [27].

[25] Akins v National Australia Bank (1994) 34 NSWLR 155 at 160 (Clarke JA).

[26] JJ Richards & Sons Pty Ltd v Transport Workers' Union of Australia [2010] FWAFB 9963; (2010) 202 IR 180 at [95]; Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia [2014] FWCFB 1317; (2014) 241 IR 35 at [18]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [21]- [25]; Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [11].

[27] Exhibit R1, Employment Agreement between Springtime Poultry Pty Ltd and Wen-Kuan Wang.

[28] Transcript of proceedings, 9 January 2025, PN32-33.

[29] Transcript of proceedings, 9 January 2025, PN38-39.

[30] Transcript of proceedings, 9 January 2025, PN40.

[31] Transcript of proceedings, 9 January 2025, PN45-47.

[32] Transcript of proceedings, 9 January 2025, PN49.

[33] Transcript of proceedings, 9 January 2025, PN44-49.

[34] Transcript of proceedings, 9 January 2025, PN50.

[35] Transcript of proceedings, 9 January 2025, PN686.

[36] Transcript of proceedings, 9 January 2025, PN690.

[37] Transcript of proceedings, 9 January 2025, PN693.

[38] Transcript of proceedings, 9 January 2025, PN712.

[39] Transcript of proceedings, 9 January 2025, PN717.

[40] Transcript of proceedings, 9 January 2025, PN720.

[41] Transcript of proceedings, 9 January 2025, PN756.

[42] Transcript of proceedings, 9 January 2025, PN892-PN903.

[43] [2025] FWC 798 at [39].

[44] [2025] FWC 798 at [40].

[45] See also R v Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552; Enterprise Flexibility Agreements Test Case (1995) 59 IR 430 at 444; Viavattene v Health Care Australia [2013] FWCFB 2532 at [28]; Opal Packaging Australia Pty (t/as Opal Fibre Packaging) v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2024] FWCFB 330 at [22].

[46] Knowles v BlueScope Steel Ltd [2021] FCAFC 32; (2021) 284 FCR 111 at [46] (Flick J, Logan J agreeing).

[47] BP Refinery (Kwinana) Pty Ltd v Tracey [2020] FCAFC 89; (2020) 276 FCR 9 at [22] (Besanko, Perram and Jagot JJ); DP World Sydney Ltd v Witherden [2025] FWCFB 133 at [35].

[48] Gelagotis v Esso Australia Pty Ltd (t/as Esso) [2018] FWCFB 6092 at [43].

[49] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 (Dixon J); Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369 at [102] (Lee J).

[50] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 (Dixon J).

[51] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [73].

[52] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998); Newton v Toll Transport Pty Ltd [2021] FWCFB 3457; (2021) 307 IR 140 at [182].

[53] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) at [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762; (2013) 228 IR 375 at [46]- [49].

[54] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].

[55] Royal Melbourne Institute of Technology v Asher [2010] FWAFB 1200; (2010) 194 IR 1 at [26]- [30].

[56] Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1 at 7.

[57] Chubb Security Australia Pty Ltd v Thomas (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, Print S2679, 2 February 2000) at [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762; (2013) 228 IR 375 at [46]- [49].

[58] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357 at [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [92]; Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6]- [7].

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