s.394 - Unfair dismissal

Application for an unfair dismissal remedy - dismissal compliant with small business fair dismissal code - dismissal otherwise fair - application dismissed.

• [1] On 6 November 2024, by a letter of termination, Mr Yevgeniy Afanasyev was given 4 weeks' notice of the termination of his employment. His employment was terminated, effective at the end of 4 December 2024. Mr Afanasyev has applied to the Fair Work Commission for an unfair dismissal remedy. His application was made within time and there was no issue that he was not a person 'protected from unfair dismissal'.

• [2] The employer was a 'small business' for the purposes of the Fair Work Act 2009 (Cth) (Act), having only around 9 employees in total at the time of the dismissal. The employer relies upon compliance with the Small Business Fair Dismissal Code (Small Business Code). The employer otherwise denies that the dismissal was unfair. The dismissal was not claimed to be a redundancy, although for reasons that follow it appears that Mr Afanasyev's position was, quite independently, no longer required by the employer.

• [3] The issues for determination are whether Mr Afanasyev's dismissal was compliant with the Small Business Code and, if not, was otherwise unfair by being harsh, unjust or unreasonable. The final issue is what relief ought be ordered in the event the dismissal was unfair.

• [4] The letter of termination did not identify any singular instance of conduct but instead described a collection of various alleged performance and conduct issues occurring over a range of time. They included alleged "inappropriate behaviour in staff communications, consistent failure to meet deadlines (including your self estimated timeframes), unprofessional interactions with colleagues, and inconsistent attendance". Closer to the time Mr Afanasyev was given notice of intention to terminate his employment, the letter of termination also raised alleged "resistance to company policies, and refusal to cooperate on tasks [which] have presented further challenges".

• [5] For the reasons that follow, I consider Mr Afanasyev's dismissal was fair.

• [6] Each of the parties gave evidence and witnesses were cross-examined. Mr Afanasyev gave evidence for himself. For the respondent, evidence was given by Mr Shaun Morell (the Managing Director), Mr Tony Braun (a Senior Software Engineer for FCL Software), and Ms Georgia Morrell (Office Manager, and daughter of Mr Morrell).

• [7] The respondent employer is in the business developing and producing software for the graphics design, sign making, digital print, and CNC machining industries. Here, CNC machines are, broadly, automated and computer controlled machine tools.

• [8] Mr Afanasyev started employment in April 2018. He was employed fulltime as a Web/Software Developer. His contractual duties included developing software code for various commercial uses aligned with the employer's business.

• [9] Before turning to some of the conduct or performance issues raised by the employer, it is necessary to say something about a particular project that the employer was engaged with by a client and for which Mr Afanasyev worked on personally. As it is not clear to me whether aspects are commercially confidential, I will simply refer to this as the 'Project'. The details of the Project were not fully explained to me but it involved the integration of an online payments or e-commerce facility, that was intended to be integrated into a client's existing online portal.

• [10] The material filed by the parties was extremely voluminous and much of it of little assistance or probative value. To give some context to that, the parties were referring to instances of alleged conduct as far back as 2021. I was provided with numerous 'messaging' or 'chat' communications between the parties running to the hundreds of pages. It is unnecessary to rehearse the totality of that material. Some of it is trivial, some of it is simply too dated, albeit some does demonstrate to varying degrees the matters the employer relied upon.

• [11] By way of example of an exchange that I consider has little probative value was that, in January 2023, Mr Morrell and Mr Afanasyev had an exchange about whether certain "base prices" (it was not clear to me what this entailed) would be set manually or automatically by formula. In that exchange, Mr Morrell said "I will set the base prices manually." He also said "The developers do not need to use a formula to calculate the base prices on the USD at some point in time and work out which fees to include or leave out." Mr Afanasyev initially queried this and asked whether they "cannot just include processing fee in the price just as we include all the other expenses in the price?". The employer says this "directly challenges the instruction already provided" and "shows insubordination and an inability to accept business directives." I do not agree. The exchange then continues and the balance of the exchange does demonstrate, in that case, Mr Afanasyev seemed incapable of letting the matter go and simply following a straight-forward request. However, the claim of "insubordination" is undermined by the fact that the employer did not pull up Mr Afanasyev about the exchange by, for example, having a private discussion with him about his tone or approach. These events occurred nearly 2 years prior to the end of Mr Afanasyev's employment. I do not consider they are a persuasive basis to support the dismissal and, for this reason, I do not intend (with some limited exceptions) to further describe events referred to by the parties arising before 2023.

• [12] More probative is an exchange on 6 March 2023. On this day, a new employee, 'Ajay', was starting work. The new employee was located overseas. To welcome the new employee, Ms Morrell sent around a message to the team, which appeared to be about 10 people in total including the new employee.

• [13] Ms Morrell wrote "Goodmorning everybody, we hope you all had a lovely weekend! Welcome again Ajay - we hope you have a great first week" and included a friendly emoji symbol. There was a separate message she immediately wrote about working in the office that Friday, instead of Thursday.

• [14] A number of employees responded with short welcome messages, generally typical of such messages welcoming a new-starter. Ajay himself replied saying "Good morning everyone! Excited to join the team today!"

• [15] The exact timing is unclear (although it does not matter) but at around the same time, Mr Afanasyev wrote "Can we please stop being polite and start being productive."

• [16] Unsurprisingly, given the blunt and unwelcoming tone conveyed by Mr Afanasyev's message, Ms Morrell sent Mr Afanasyev a separate message saying "It is unclear whether or not this is a joke however, it comes across quite intense and not very friendly." As soon became clear, Mr Afanasyev's message was not a joke or intended in jest. Ms Morrell's message group was just herself, Mr Afanasyev and Mr Morrell. She then followed up to the same smaller group with "Eugene it is inappropriate to cause conflict on a public forum, welcoming a new team member who has begun working for the company in a remote location is critical to ensuring they feel a part of the team."

• [17] Mr Afanasyev removed his message from the main chat group. Mr Afanasyev's evidence suggests he did it unprompted. According to Mr Afanasyev, "I quickly realized that it might be misconstrued and removed the message". Mr Afanasyev said this "demonstrates self-awareness and a willingness to adjust my communication if I thought it might be perceived negatively." In fact, it appears he did so in response to Ms Morrell's counselling message, although it does not matter.

• [18] He told Ms Morrell (on the three-person chat group) that the message had been removed, which followed the messages described above from Ms Morrell to him. Ms Morrell then wrote "Thank you, it is not very welcoming nor kind - especially when they are beginning from another country by themselves. The group chat should also be used to create a team environment."

• [19] Belying the "self-awareness" Mr Afanasyev claims he possessed, he then wrote to Ms Morrell on the three-person chat and the following exchange took place:

"Eugene, this is ridiculous. It is his first day and it was a welcome message - I am shocked you are being so negative about this"

"He is here to work, and that is why we welcomed him to the team."

I don't want to know about ShengTian [another employee] being sick and I don't want to know about [another employee again] days off

"Well that is not very nice considering he is a part of the team and he deserves a warm welcome just as much as any of us, it is upsetting you have responded this way and may caused a negative beginning to his first day. It reflects the whole company when you say things like that in a group space.

• [20] Ms Morrell's last message appears to have been the final word on the topic during that chat message. Notwithstanding, the exchange was of sufficient concern to the employer that it issued Mr Afanasyev with a letter titled "Warning advice about your recent conduct". The substantive parts of the letter stated:

"We are writing to you to express our concern regarding your recent conduct during our group chat discussions. Your comments are unnecessarily offensive to other staff members and airing grievances in this setting is not acceptable staff behaviour. We understand that group chats can be distracting, but this behavior must end.

It is important to note that creating a positive and respectful work environment is essential to our company's success. It is our expectation that all employees treat each other with respect and professionalism. Your behavior in the group chat on March 6, 2023 does not align with our expectations.

In light of this, we are writing to you to advise you that your comments were unacceptable. We expect that you will take this advice seriously and make the necessary adjustments to your conduct moving forward. You have been removed from the chat and we hope that as a result, less distractions occur during your work day and we expect that productivity should therefore improve.

We do value your contributions to the company when these are constructive and respectful. If you have any questions or concerns, please do not hesitate to reach out"

• [21] Ms Morrell signed the letter in her capacity as 'Executive Assistant to the CEO'.

• [22] In response to the receipt of the above letter, Mr Afanasyev responded:

"Hereby, I officially reject your warning letter. All the accusations are subjective to the point of view, and the letter carries no quotes or any other clarifications for me to draw any meaningful conclusions. I state that I followed a direct order from Shaun [Morrell] to the best of my understanding and my language abilities. And the order was 'to remove excessive talks from the group chat.'

I'm willing to forgive the FCL software this time, but next time, a letter like this will be seen as regular harassment and cultural racism."

• [23] Mr Afanasyev's response demonstrates a significant lack of insight. First, to criticise the letter because it did not contain "quotes" was disingenuous. It was crystal clear what messages were being referred to. Second, to use a general directive to minimise excessive chats to shield his poor behaviour compounds that lack of insight. Finally, the notion that Mr Afanasyev would "forgive" the company while, at the same time, deploying an unfounded accusation of "cultural racism" is quite remarkable. It is to the employer's credit that they left the matter lie where it was, rather than taking it further (as I consider they would have been entitled to do so.)

• [24] Returning to the Project, I infer that the start date for that work occurred at some point during 2023, although the exact date is unimportant. It would appear that Mr Afanasyev had primary carriage for the technical work for the Project. From Mr Morrell's perspective, by the end of 2023 he was clearly keeping an eye on its progress. On 8 January 2024, Mr Morrell asked Mr Afanasyev for an update. Mr Morrell was seeking an estimate of how much time was required for the Project work. Mr Afanasyev responded with an estimate, which totalled 25 working days. That estimate was qualified in a number of respects, and I consider tolerably clear that Mr Afanasyev was not giving any firm assurance of the estimate. For example, for one component of his estimate, he wrote "I'm purely guessing at this stage".

• [25] On 2 February 2024, Mr Morrell followed up with a Teams message to ask how the progress with the Project was going. Mr Afanasyev's reply indicated progress was slow (although he didn't say what progress had been made). He then listed a raft of other activities he had been working on, which appeared in part to be an explanation for the slow progress. Mr Morrell then indicated that the Project was the priority. He wrote "Nothing at all comes ahead of [the Project]. No other work is to be done or is relevant UNLESS it is mission critical."

• [26] Mr Morrell further said "Do not work on anything else. I am on the hook for $100,000 because of this crazy delay." The latter reference to $100,000 appears to be some contractual obligation or penalty clause for the Project delivery. Mr Afanasyev indicated he understood.

• [27] In February 2024, Mr Morrell followed up again on progress. It is unnecessary to deal with this evidence in detail, although it is not clear to me to what extent the delays were the fault of Mr Afanasyev or whether the 'delay' was simply due to the fact that the Project required a lot more work than had been expected.

• [28] The position regarding the delays to the Project continue to be of concern to the employer and, in part, those delays formed a basis for the ultimate dismissal of Mr Afanasyev. On this issue, as it relates to the fairness or lack thereof of Mr Afanasyev's dismissal, I am unable to conclude that the delays are attributable to Mr Afanasyev. There were certainly some aspects of delay attributable to Mr Afanasyev continuing to work on other matters, contrary to the direction by Mr Morrell although they do not explain the significant delays occurring (and which would continue to occur). I do not consider that the employer has established, on the evidence before me, that the delays to the Project supply a valid reason for Mr Afanasyev's dismissal. There are different reasons I do accept, however, which I now set out.

• [29] On 19 March 2024, Mr Afanasyev requested a new charger for his laptop. Rather than making a simple request for a better charger, he sent Mr Morrell multiple messages (14 in total) explaining various investigations and tests he had performed on his charger and his opinions on 'noname' chargers. Mr Morrell immediately approved the request but, with some evident frustration, also said the issue "does not require this many messages and so much investigation which wastes more time" and that the "time you have just spent writing this out is crazy". That prompted more messages from Mr Afanasyev about being "blamed", which Mr Morrell made very clear there was no blaming. Mr Morrell also proposed that Mr Afanasyev identify any particular charger he had in mind and it would be delivered to his house.

• [30] On 20 March 2024, Mr Afanasyev's father passed away. The employer was aware of the matter. Mr Afanasyev says, and I accept, he took only two hours of personal leave on that day and returned to work the following day. Mr Afanasyev says he chose to continue working as he believed it would help him cope with his grief. Mr Afanasyev raises this matter as being relevant to later performance concerns about his work on the Project and for a later issue where a leave request was denied. However, as I am unable to make a finding one way or the other about the reasons for the Project's delays, this issue does not arise.

• [31] On 11 June 2024, Mr Morrell conducted a performance review with Mr Afanasyev. There were three aspects identified where, from Mr Morrell's perspective, performance needed improving. The first was productivity (primarily by reference to the Project timeliness, which was still ongoing.) The second was "workplace attitude", and the review stated "there have been several instances where your behaviour has been combative and argumentative, which has affected team morale and project efficiency". No specific examples were given, although the review did state there have been "Frequent argumentative interactions, particularly during discussions about task priorities, responsibilities and approaches towards tasks".

• [32] At around this time, Mr Afanasyev had also been seeking a pay increase. No pay increase was offered, and brief reasons for that were also recorded in the written performance review.

• [33] It is quite clear that Mr Afanasyev did not accept any of the performance concerns raised at the performance review. The following day, he wrote a lengthy Skype message to Mr Morrell in which (among other matters), he stated:

"I was only after salary rise. All this farce related to the review of my productivity was not required to me.

It was painful to learn that all my efforts are not being appreciated by the company. It still hurts.

What I learned from the last meeting is that you can pay more, so you are kind of making this a sport for yourself from the wage negotiation process."

• [34] Mr Afanasyev's characterisation of the negotiation process as "sport" was significantly misplaced. Putting aside the various reasons contributing to the delays in the Project (which were clearly of concern to Mr Morrell), the "workplace attitude" issues expressed by Mr Morrell were sincerely held and there was a proper basis for them. It was not a "farce" or "sport", although it seems clear that is how Mr Afanasyev perceived matters.

• [35] On 14 June 2024, there was a Skype chat communication involving Mr Afanasyev and his management team. It is unclear exactly who was involved, but Mr Braun was part of it. Neither party included the complete chat in their evidence, although Mr Braun says the chat commenced with a message from him informing Mr Afanasyev (and, I infer others) that a particular website migration had been completed. The topic of the chat diverted to various aspects of the migration. Mr Braun says he was not particularly happy with the tone of questioning by Mr Afanasyev but none of that material was before me. Of significance, however, is how the chat ended. It ended with Mr Afanasyev writing:

"I don't love you very much at the moment, Shaun is not giving me the salary raise as promised, Tony is moving some things behind my back until it breaks and cannot go back, and now I need to remove security layer from the API. I need some anger management at the moment."

• [36] Mr Morrell separately upbraided Mr Afanasyev for the above comment almost immediately, as well as a separate comment Mr Afanasyev had made about the skills of another work colleague. Mr Morrell wrote "These comments are inappropriate and unacceptable, and you have no right to say things like this to other staff members and make statements about what I promised you, when I did no such thing." He also said that, on the following Monday, "we will discuss all of this to address your misconduct and resolve this unacceptable situation."

• [37] Dealing with Mr Morrell's statement, the reference to "what I promised you" is a reference to a purported promise of a salary increase. Mr Afanasyev appeared to have acknowledged there was no promise, because he replied "I agree with you, Shaun, I have no right to make statements about what you promised, when you did no such thing".

• [38] Mr Braun's evidence was that he felt Mr Afanasyev's comments (quoted above) were "highly unprofessional, personal, and indicative of frustration directed unfairly at me".

• [39] On 17 June 2024, Mr Morrell issued Mr Afanasyev with a warning regarding (among other matters), the comment Mr Afanasyev made to Mr Braun a few days earlier. The warning was in writing, and provided to Mr Afanasyev. The warning also included under a heading "Expectations going forward" that "You must maintain a professional and respectful attitude towards all colleagues". The letter stated that a failure to demonstrate "an immediate and sustained improvement in these areas may result in further disciplinary action, up to and including the ending of your employment."

• [40] The following day, Mr Afanasyev apologised to Mr Braun for his comments. It would appear that the apology was unsolicited, a point in Mr Afanasyev's favour. The apology included an explanation for why the comment was originally made, which as I read those messages was evident frustration with the failure to secure a salary increase and pressure with work deadlines. Somewhat concerningly, the chat messages from Mr Afanasyev also contain an implied warning to Mr Braun to be "mindful" about Mr Morrell, which are suggestive that Mr Morrell cannot be trusted. Those comments were made in the context of Mr Afanasyev again raising his salary increase aspirations to Mr Braun.

• [41] Mr Afanasyev also says that during the day on 17 June 2024 where he was given a warning, he was told by Mr Morrell he should resign. Mr Morrell denies that claim. I prefer Mr Morrell's account for a number of reasons, including my impressions of the witnesses through their evidence. Mr Morrell's oral evidence was generally direct, succinct and to the point. Mr Afanasyev would routinely debate matters. In Mr Afanasyev's Form F2 and initial evidence, Mr Afanasyev says that resignation was raised in the context of being the only way he might secure a positive reference. In later material, the allegation had morphed to being "Verbally requested to resign, with dismissal presented as the only alternative." Dealing with the latter allegation, if it was the employer's intention to have dismissed Mr Afanasyev, it would have done so, and I reject any ultimatum being given. I am prepared to accept that the topic of resignation was raised, if only because Mr Afanasyev himself had, only the week earlier, raised the prospect and Mr Morrell in his oral evidence says that Mr Afanasyev raised the issue. It was in that context that Mr Morrell told Mr Afanasyev that, usually where there is a resignation, a positive reference will be given but if the end of employment arose from dismissal, any reference would need to be honest about that. Mr Afanasyev also made a number of other significant - but unfounded allegations - which I consider undermine his credibility. For example, Mr Afanasyev says "The unwillingness [of the employer] to resolve miscommunications reveals that the respondent was willing to manipulate the situation by taking no steps to clarify the situation but instead jumping to conclusions to discredit my reputation. It may be an indication that documents related to my dismissal were fabricated." There was no evidence of "manipulation" and the allegation of "fabricated" documentation is baseless. The allegation of "fabrication" for this instance was not the sole allegation. I do take Mr Afanasyev's allegations into account, but they are matters telling against his reliability as a witness.

• [42] In about August 2024, the employer's delays with the Project saw the vendor of that contract exercise a contractual right to discontinue the contract between it and the employer. The contractual terms were not before me, but Mr Morrell stated that, on 19 August 2024, the vendor informed the employer that they would not be "renewing" the contract on 30 September 2024. Whatever the precise legal mechanism, the arrangement was coming to an end. Also by around this time, Mr Morrell's evidence was that the employer had been required to pay some form of contractual penalty (or perhaps liquidated damages) on account of the delays. Notwithstanding, a subsequent transitional period to 31 December 2024 was agreed to allow the employer to changeover to another service provider.

• [43] One of the final incidents, which appears to be the metaphorical straw that broke the camel's back, occurred on 7 October 2024. The morning began as a regular work morning, in which Mr Afanasyev was working in the office. The office was broadly open plan. Ms Morrell was present, as was Mr Morrell and some others. As best as I can assess, Mr Afanasyev arrived for work by 10am. Shortly after - the timing is unclear - Ms Morrell asked Mr Afanasyev for a particular 'PSN'. 'PSN' is an acronym for 'Personal Serial Number'. Its exact function was not made clear to me but, in this case, I infer that the request related to an issue about email synchronisation for some customers.

• [44] Ms Morrell's request was a simple one. Nonetheless, Mr Afanasyev did not consider she needed the PSN and, I infer, said so which, I also infer, led to a reiteration of the request. Neither party gave evidence of the exact words used, which is understandable given the time elapsed. Instead of simply providing the PSN to Ms Morrell, Ms Morrell's evidence (which I prefer to that of Mr Afanasyev's) is that Mr Afanasyev refused outright, saying words to the effect of "No, I am not giving that to you," before abruptly storming out of the office. Mr Morrell was close by when this happened and his evidence based on what he observed is to similar effect. I am readily satisfied that Mr Afanasyev's outburst was a heated outburst, as Ms Morrell describes. Mr Afanasyev seeks to downplay the confrontation in his evidence but the employer's evidence is preferrable. Mr Afanasyev acknowledges he was upset in the encounter, suggestive that the encounter was not some vanilla discussions about the pros and cons of some technical issue. Notwithstanding his initial refusal, Mr Afanasyev did provide the PSN quite soon afterwards. The timing isn't clear once again, but it was probably provided within about 30 minutes of the initial request.

• [45] The above matters are a convenient point to address a repeated theme of evidence given by the three witnesses called by the respondent. Each of those witnesses described, in their own words, significant challenges in dealing with Mr Afanasyev as a work colleague and in a team environment.

• [46] Mr Braun, the Senior Software Engineer, frequently collaborated with Mr Afanasyev, particularly regarding API integrations, data management, and synchronisation between systems. Mr Braun's evidence was that he found it consistently difficult engaging in technical discussions with Mr Afanasyev. Mr Braun says that conversations that should have taken only a few minutes regularly extended into hours-long, drawn-out discussions/arguments. To help manage these concerns, Mr Braun said he avoided engaging with Mr Afanasyev on their Skype messaging platform. Instead, he chose to make telephone calls or to discuss matters in person to prevent discussions from spiralling into (in Mr Braun's view) unproductive debates. There is no doubt that many of the issues Mr Afanasyev raised on technical matters were appropriate to raise and, generally, employees should be encouraged to do so. But Mr Braun says, and I accept, that the issues he encountered with Mr Afanasyev were unique to him and not a reflection of Mr Braun's perception of the company culture or his working relationships with others.

• [47] Ms Morrell gave similar evidence about her interactions with Mr Afanasyev. She said that attempting to assign tasks to Mr Afanasyev was "exhausting". She also said that the hostility she faced from him was something she had never experienced with any other employee. In her view, many of Mr Afanasyev's responses went beyond healthy debate - they were dismissive and combative, which she said left her feeling overwhelmed and distressed. Ms Morrell gave some examples, two of which I have described above for the interactions on 6 March 2023 and on 7 October 2024.

• [48] To similar effect, Mr Morrell's view was that Mr Afanasyev repeatedly prolonged discussions unnecessarily, consumed management time with personal grievances, and failed to focus on solutions. Mr Morrell says Mr Afanasyev's tendency to create excessively lengthy dialogues rather than act on instructions impacted the team's productivity and placed strain on other staff members. Mr Morrell gave numerous examples of such conduct (from his perspective). I consider that the examples described above support Mr Morrell's views.

• [49] While I acknowledge that there is frequently a considerable degree of nuance in making an assessment of someone's 'fit' within a team environment or whether they are 'combative' (or some similar label) and the reasons for that fit or lack of fit. It is often the case that there is no particular event or events contributing to a belief about fit or impact on team environment. Rather, there is sometimes an overall accumulation of (relatively) minor instances, which are commonly not documented or recorded. The assessment by one employee that another employee has behaved in a particular way is often subjectively presented, and may not fairly reflect the reality of the situation.

• [50] Here, however, I am readily satisfied that Mr Afanasyev's impact on the small team within the respondent was corrosive to a positive environment where other employees wanted to work. Simple tasks became difficult. Basic requests became negotiations. The relationship was all too often, as Ms Morrell said, exhausting. Each of the three witnesses called by the employer gave evidence that, in essence, dealing with Mr Afanasyev was frequently draining and difficult. I do not doubt that a number of encounters would not involve any particular fault on behalf of Mr Afanasyev but I am satisfied that the consistent picture painted by those three witnesses reflected the substantial difficulties they had in dealing with Mr Afanasyev.

• [51] On 6 November 2024, the employer issued a letter to Mr Afanasyev terminating his employment on 4 weeks' notice. I have set out aspects of that letter above.

• [52] In accordance with the notice of termination, Mr Afanasyev's final day of work was 4 December 2024.

• [53] In Mr Afanasyev's Form F2, he stated "The project I was working on has shifted from active development to maintenance, leaving no suitable work for me." While that statement was partly in support of a proposition that he was dismissed to avoid perceived "redundancy costs" (a proposition I do not accept), the oral evidence from Mr Morrell confirmed the factual reality that there was no longer suitable work for Mr Afanasyev due to the cessation of the Project. Mr Morrell said that, with "hindsight", a redundancy was a correct option at the time given that reality.

• [54] This was not a case of summary dismissal. In those circumstances, the Small Business Code requires that an employer "must give the employee a reason why he or she is at risk of being dismissed" and that reason must be a "valid reason based on the employee's conduct or capacity to do the job". The employee "must" also be warned verbally or, preferably in writing, that he or she risks being dismissed if there is no improvement. An employee must also be given an opportunity to respond to the warning and to give the employee a "reasonable chance to rectify the problem, having regard to the employee's response." Rectification might involve providing additional training and ensuring the employee knows the employer's job expectations.

• [55] I consider that the warning issued on 17 June 2024 told Mr Afanasyev, in sufficiently clear terms, that Mr Afanasyev risked dismissal and why. That letter was titled "Formal warning for inappropriate conduct" and gave two concrete examples of statements made by Mr Afanasyev that the employer considered were "inappropriate and unacceptable". The warning letter directed Mr Afanasyev to maintain a "professional and respectful attitude" towards work employees and specifically foreshadowed termination if an immediate and "sustained" improvement did not follow. I am satisfied that Mr Afanasyev had an opportunity to respond to the warning and he was given a reasonable chance to rectify the problem. In part, Mr Afanasyev rectified an aspect of the problem by apologising to Mr Braun but then immediately regressed with his warning to Mr Braun to be "mindful" of Mr Morrell. Regardless of that regression (which Mr Morrell was apparently unaware), the events on 7 October 2024 did not reflect a professional or respectful attitude to others. I do not consider that additional training was necessary. What was being sought from the employer was basic courtesy in the workplace to or about other colleagues.

• [56] The events of 7 October 2024 were important. Mr Afanasyev could have simply responded to that request with a short message saying something like "here is the PSN. I just want to raise with you that the reason you want the PSN might not be an answer to the issue your looking at" and to explain why. He could have also simply offered to talk about it further if requested. Instead, there was an emotionally-charged outburst in front of a number of staff which ended with him walking out. It was distressing for Ms Morrell, once again.

• [57] Mr Afanasyev's technical skills were evidently sound but working with him was too difficult for too long.

• [58] The letter of termination did not fully align with the earlier written warning, in that the letter of termination raised the delays with the Project and lateness. But the letter of termination did squarely explain the unresolved concerns about the need for a "professional" attitude and inappropriate conduct.

• [59] There was a valid reason for Mr Afanasyev's dismissal. Where an employer has organised its business to include teams or small groups, the ability of those teams to work cohesively is frequently considered a particularly important facet of the business. It is important from the employer's perspective, because a well-functioning team is more likely to be productive and effective for the business needs. But it is also important for the other employees working in or dealing with those teams. If other employees in the team routinely find dealing with a colleague is simply draining, exhausting, or is unnecessarily emotionally charged, that is not an environment they will want to work in. The employer has a direct interest in balancing the needs of all its employees and where, as here, one particular team member was corrosive to the overall cohesion of the group, that is a valid reason for dismissal.

• [60] I am satisfied that the dismissal was consistent with the requirements of the Small Business Code and, as the employer was a small business, Mr Afanasyev does not satisfy the requirements of section 385(c) of the Act. For this reason alone, his application must be dismissed.

• [61] Even if I took the view that there was not compliance with the Small Business Code, I would not conclude that the dismissal was harsh, unjust or unreasonable. I would make this conclusion firstly noting that there was a valid reason for the dismissal, based on the grounds I have described above. While in part I consider the employer ought to have acted upon its concerns more promptly, its overall process for dealing with Mr Afanasyev were sufficient having regard to the size of the organisation and no internal human resources expertise. Those processes were not perfect but there was nothing that rendered the dismissal harsh, unjust or unreasonable. Mr Afanasyev's length of tenure was a factor somewhat in favour of a finding of overall harshness but, again, there was no material that I would consider warranting an overall conclusion that the dismissal was harsh, unjust or unreasonable.

• [62] Lastly there is the issue of remedy. In circumstances where both parties acknowledged, at a factual level, Mr Afanasyev's job was no longer needed it is clear to me his employment would have ended regardless. I do not consider the employment relationship would have persisted for more than 2 further weeks at a maximum, even taking into account various additional 'handover' tasks that could be performed. It is a pity the matter was unable to be resolved consensually.

• [63] The application is dismissed. An order[1] to that effect will be separately issued.

[1] PR793195.

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