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[2025] FWC 3902
General information, not legal advice.
Fair Work Commission
2025-12-22
Original judgment source is linked above.
[2025] FWC 3902 [Note: An appeal pursuant to s.604 (C2025/13204) was lodged against this decision.]
s.394 - Unfair dismissal
Commonwealth of Australia as represented by the Department of Health, Disability and Ageing
Application for unfair dismissal remedy - dismissal not unfair - application dismissed.
[1] Dr Xinguo Li (Applicant) has made an application pursuant to s.394 of the Fair Work Act 2009 claiming that he was unfairly dismissed from his employment with Commonwealth of Australia as represented by the Department of Health, Disability and Ageing (Department or Respondent).
[2] The application was heard on 21 August 2025. At the hearing, the Applicant appeared on his own behalf and Mr D Mahendra of Counsel appeared for the Respondent. Extensive supporting documentation was filed by both parties, totalling over 6,400 pages. Witness statements were provided by the Applicant, Ms Elyse Boutcher (Director, PMS), Ms Stefanie Janiec (Assistant Secretary, Fraud and Integrity Branch), Dr Tim Altamore (Assistant Director, LCS) and Ms Michelle Vella (Assistant Director, PMS). None of the witnesses were required for cross examination and their statements were admitted into evidence unchallenged. The hearing proceeded on the basis of oral submissions from the parties only.
[3] For the reasons set out below, I find the Applicant's dismissal was not unfair.
[4] The Applicant commenced employment with the Respondent on 13 August 2018 in the role of Compliance Evaluator within the Listing Compliance Section (LCS).
[5] On 13 December 2024, the Applicant was issued with a Notice of Suspected Breach of the APS Code of Conduct by Ms Janiec, who was appointed as the delegated decision maker. The Notice advised that information had been provided to the Department raising concerns that the Applicant may have breached the APS Code of Conduct (the Code) as set out in section 13 of the Public Service Act 1999 (Cth) (PS Act).
[6] The allegations of suspected misconduct were set out in detail in an annexure to the Notice which comprised 20 pages. The annexure included an extensive background and timeline of events leading to the suspected breach. The relevant sections are extracted below:
(2) about PMS's management of your complaints made to:
Complaints relating to business improvement activities
(1) you mentioned that you would not reach the number of reviews set of you as a target and requested your compliance review output to be lowered;
(2) you were provided the feedback that you need to be more engaged and involved with the team; and
(3) Dr Altamore raised his concern about your communication style with people within the section."
Your rating will create a big trouble on me, and you will also be in big trouble as my supervisor as we need to have a management plan in place. Please read the Performance policy carefully. I sincerely ask for you to reconsider your rating by taking my explanations into consideration. If that is the case, it will be dangerous for you as I will report complaint on my PDS discussion to People Management Section for primary review of action and I will also report your other unacceptable behaviours since I joined in your team on 15/8/2023."
(1) requests for information and clarification about how she demonstrated 'natural justice and fairness' in her second instance assessment
(2) requests for information about how she evaluated Dr Altamore's mid-cycle rating; and
(3) your plan to distribute her second instance assessment report to the LCS team."
(1) the Department would not respond to the six complaints separately, as they were all interrelated;
(2) the Department had responded to similar complaints and concluded that the allegations were unsubstantiated, vexatious and malicious;
(3) your complaints demonstrated that you do not respect operational lines of authority and associated decision making; and
(4) your latest complaints were an attempt to re-prosecute the same arguments and earlier complaints about business processes and operational management, which had already been responded to by the Department."
(1) she sent you the letter because Dr Altamore raised concerns with her about your comments during that meeting on 14 February;
(2) she found your comments to Dr Altamore on 14 and 19 February 2024 threatening and a direct threat;
(3) in your email of 19 February 2024, your allegations about Dr Cheng to Dr Altamore were designed to impugn Dr Cheng's reputation to Dr Altamore, and an attempt to garner support from Dr Altamore for your cause;
(4) your behaviour is unacceptable, inappropriate and unprofessional;
(5) your actions demonstrate a lack of judgement, respect and courtesy, accountability, professionalism and self-awareness;
(6) your comments to Dr Altamore were aggressive, intimidating which caused him concern, and your comments about Dr Cheng, which are without substance, were malicious;
(7) you are able to raise a complaint or request a review of action in relation to employment decisions relating to you, however this does not entitle you to threaten, disparage or impugn the integrity of Department officers to make such complaints or do so in a discourteous or disrespectful manner;
(8) you were reminded of your obligations to behaviour in accordance with the APS Values and the Code;
(a) to ensure that you communicate in a way that is respectful and courteous and without harassment;
(b) to treat all staff with respect and courtesy and without harassment regardless of your personal views of any staff member;
(c) to participate constructively with the PDS process, be open to receiving feedback and acting on feedback provided, and cooperate with supervisors to resolve any issues relating to any identified performance and behaviour issues;"
Complaints about PMS's management of your complaints
(1) PMS's mismanagement of your complaints being a unique and major psychological hazard in the workplace; and
(2) PMS has repeatedly bullied you by making unsubstantial decisions about your complaints and by not demonstrating natural justice in their decision-making."
(2) requested this email be considered in assessing whether or not you breached the Code; and
(3) for all 16 complaints about Dr Cheng be referred for consideration whether Dr Cheng has breached the Code."
[7] The Applicant was afforded 7 days to respond to the allegations and was advised that possible sanctions could include, amongst other things, termination of employment.
[8] The Applicant sought and was granted several extensions of time and subsequently provided a written response on 5 February 2025.
[9] On 28 March 2025, Ms Janiec issued a letter confirming her determination that the Applicant had breached the APS Code of Conduct and that the proposed sanction was termination of employment. An annexure to the letter set out in detail the reasons for the proposed sanction, including the following:
[10] The Applicant was invited to provide a written response to the preliminary sanction decision by 4 April 2025. He provided a response on 15 April 2025 after being granted two extensions.
[11] On 12 May 2025, the Applicant was issued with a Sanction Decision advising that his employment was terminated effective the same day on the ground of a breach of the Code. He was provided with five weeks' pay in lieu of notice.
[12] It is not feasible to traverse in detail the 6,400 pages of materials filed, and so only a short summary of the case for each party is outlined here.
[13] The Applicant said that he made complaints about Dr Cheng of her unacceptable behaviours and mismanagement, and he made complaints about PMS's mismanagement and repeated bullying and about the sanction delegate's mismanagement of the misconduct process against his workplace rights.
[14] The Applicant claimed that due to his complaints, he was bullied, harassed and mismanaged.
[15] The Applicant argued that it was his workplace right to make complaints and that the alleged misconduct in the 'Sanction decision letter' is capricious, fanciful, spiteful or prejudiced.
[16] He asserted that the Department frequently framed him by making false or misleading statements as evidence of his alleged misconduct.
[17] He denied the Respondent's claim that he continued to make complaints-based responses to reasonable management. In this regard the Applicant said:
"In fact, my 16 complaints about Dr Cheng are very different in nature, including a wide range of serious misconduct, such as: bullying, harassment, disrespect, other unacceptable behaviors, mismanagement, underperformance and incompetence. Also, Dr Cheng's serious misconduct was observed over 3 and a half years from Jan 2021 to Jul 2024."
[18] The Applicant claimed that there were various issues with Ms Janiec's delegation which meant that his dismissal was invalid.
[19] He asserted that his dismissal was unjust because there was no valid reason for his dismissal, the reasons given to him were unsubstantiated, and the evidence was "false, misleading or vague". The Applicant also alleged that his dismissal was procedurally unfair.
[20] The Respondent submits that the Applicant was not dismissed for making complaints, but rather for the manner in which those complaints were made, which involved inappropriate language, escalation of unfounded allegations, and repeated undermining of colleagues and managers.
[21] Since approximately 2018, the Applicant engaged in what he described as "business improvement" activities. While initially included as a goal in his performance plan, these activities increasingly distracted him from his core duties as a Compliance Evaluator.
[22] By 2023, concerns were raised with the Applicant by his supervisors, including Dr Cheng and Dr Altamore, regarding his failure to perform his substantive role and his disproportionate focus on self-directed tasks. Rather than taking this feedback on board, the Applicant responded with inappropriate correspondence, including threats to withhold compliance with directions unless they were proven "lawful and reasonable".
[23] The Applicant made numerous complaints asserting allegations of bullying, harassment, misconduct, and even illegality on the part of his supervisors and managers. The Respondent expressed these complaints were frequently:
[24] Further, the Applicant frequently copied in irrelevant staff and external recipients, breaching confidentiality and failing to adhere to respectful workplace communication. The Respondent submits that this conduct was disruptive, unprofessional, and detrimental to workplace harmony.
[25] The Respondent submits that the Applicant's conduct has demonstrated a refusal to accept outcomes and pattern of personal attack rather than constructive resolution.
[26] Following the Applicant's dismissal, the Respondent discovered that he had accessed confidential and sensitive documents, including information relating to other employees' conduct investigations. The Applicant's access to these documents were unauthorised, unrelated to his role and a clear breach of the Respondent's information security policies.
[27] There is no dispute and I am satisfied that the Applicant is a person protected from unfair dismissal by virtue of s.382 of the Act. I now turn to consider if his dismissal was unfair within the meaning of the Act.
[28] A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:
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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
[29] There is no dispute that the Applicant was dismissed and that subsections (c) and (d) do not apply.
Was the dismissal harsh, unjust or unreasonable?
[30] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
"... 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."
[32] The onus is on the Applicant to prove his dismissal was harsh, unjust and/or unreasonable.
[35] There is no mandate for giving the 'valid reason' criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to 'have regard to' or 'take into account' requires the Commission to give the matter(s) weight as a fundamental element in the decision making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.
[36] Having considered all the evidence, I find that there was a valid reason for the Applicant's dismissal.
[37] The evidence demonstrates that the Applicant engaged in repeated and unsubstantiated complaints about supervisors, which were accompanied by inappropriate and disrespectful communications. Despite multiple warnings and opportunities to correct his conduct, the Applicant continued with behaviour that undermined workplace relationships and operational management.
[38] The Applicant's communication style was often confrontational and included copying irrelevant third parties into internal emails, thereby escalating the matters beyond appropriate management channels. His emails contained language that was disrespectful and at times inappropriate, including accusations of incompetence and unprofessionalism directed towards supervisors such as Dr Cheng and Dr Altamore.
[39] The Applicant also engaged in threatening behaviour, for example when he said to Dr Altamore that it would be 'dangerous' for him to give a 'partially effective' rating for his mid-cycle assessment.
[40] There is absolutely no question that employees have the right to make complaints however it is not acceptable to engage in what the Respondent characterised as "persistent complainant conduct" which includes:
[41] I find that the Applicant engaged in persistent complainant conduct in addition to "unreasonable complainant conduct" which involved:
[42] I agree with the Respondent's submissions that when making a complaint, the complainant has a responsibility to comply with basic standards of professionalism, civility and courtesy, which includes not engaging in persistent and unreasonable complainant conduct.
[43] I also accept the evidence of Ms Boutcher that between March 2024 and May 2025, the resources required to manage the Applicant's complaints involved an EL1 level employee being dedicated on an almost full-time basis to the Applicant's complaints in addition to being assisted by an APS6 employee. I find that this was unsustainable and disproportionate to the merit of the complaints that were being made, and certainly not sustainable.
[44] The Applicant's conduct amounted to misconduct and provided a valid reason for his dismissal. Further, the discovery after the Applicant's dismissal that he had accessed sensitive documents without authorisation also supports a finding that there was a valid reason for his dismissal.
Notification of the valid reason and opportunity to respond - s.387(b) and (c)
"[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted."[10]
[47] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to The Applicant before his dismissal was effected.
[48] I am satisfied on the evidence before me that the Applicant was notified of the reason for his dismissal and was given an opportunity to respond to that reason. To this end, he was notified of the reason for his dismissal in numerous pieces of correspondence including the Notice of Suspected Breach and Details of Allegations; the Breach Determination and Proposed Sanctions letter, and the Reasons for Breach Determination letter amongst others.
[49] I am also satisfied that the Applicant had a reasonable opportunity to respond, which included being granted multiple extensions of time to respond, which is evidenced in the outline of events above.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[50] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
[51] The Applicant was not denied a support person.
Warnings regarding unsatisfactory performance - s.387(e)
[52] A warning for the purposes of s.387(e) must clearly identify:
[54] The Applicant was not dismissed because of unsatisfactory performance and so this is not a relevant consideration.
Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))
[55] I am satisfied that the size of the Respondent and its dedicated human resource expertise did not impact on the procedures followed by it in effecting the dismissal, and the process was undertaken to a standard that would be expected of an organisation of its kind.
Other relevant matters - s.387(h)
[56] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
[57] I have considered the impact that the dismissal has had on the Applicant and do not consider that there are other relevant matters to be considered.
[58] Having carefully considered each of the required matters, I am not satisfied that the Applicant has discharged his onus of proving that his dismissal was harsh, unjust or unreasonable. Accordingly, I am not satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the Act, and so his application is therefore dismissed.
D Mahendra of Counsel for Commonwealth of Australia as represented by the Department of Health, Disability and Ageing.
[1] (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.
[2] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[3] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373.
[5] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, 685.
[6] Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
[7] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[8] Previsic v Australian Quarantine Inspection Services Print Q3730.
[11] Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1, 7.
[12] RMIT v Asher [2010] FWAFB 1200; (2010) 194 IR 1, 14-15.
[13] McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd [2013] FWC 3034, [32].
[14] Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].
Printed by authority of the Commonwealth Government Printer
Xinguo Li
Commonwealth of Australia as represented by the Department of Health, Disability and Ageing [2025] FWC 3902
(1995) 185 CLR 410
(1995) 62 IR 371
(1996) 142 ALR 681
(2000) 98 IR 137
(1995) 60 IR 1
(2010) 194 IR 1