What follows are the reasons for decision by a senior member of the Fair Work Commission in an unfair dismissal case which is a classic explanation of the legal principles involved in determining the issues involved in such a cases.
“Application for an unfair dismissal remedy – dismissal unfair – compensation ordered
[1]
Ms Mary Athea Hilario (Applicant) has made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009.
[2]
The Applicant was employed by Murray Cod Australia Limited (Respondent) on 29 April 2025. She was summarily dismissed on 5 November 2025 for serious misconduct following an investigation into damage caused to a company vehicle on 30 October 2025 and the Applicant’s alleged failure to report that damage.
[3]
The application was heard on 4 March 2026. At the hearing, the Applicant appeared on her own behalf and gave evidence in support of her application. The Respondent was represented by Mr Matthew Snaidero (Human Resources and Safety Manager). Evidence was given for the Respondent by Mr Snaidero and Mr David Baxter (Operations Manager).
[4]
For the reasons set out below, I find that the Applicant’s dismissal was unfair and have awarded compensation as a result.
Background
[5]
The Applicant commenced employment with the Respondent on 29 April 2025 as a Senior Aquaculture Technician at its Stanbridge Site.
[6]
On 30 October 2025, damage was identified on a company utility vehicle used at the workplace. Earlier that day, the Applicant had used the vehicle while undertaking work duties.
[7]
At about 2:17 pm that afternoon, the Applicant received a message from Mr Darcy Payne, Site Manager, attaching photos of the damaged vehicle from and asking whether she had any knowledge of how the damage had occurred. The Applicant responded: “Oh. I don’t know. No one has report anything to me.”
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[8]
According to the Respondent, shortly afterwards Mr Payne sent a message to employees advising that management had become aware of damage to the vehicle and requested that anyone with knowledge of the incident come forward. No employee reported responsibility for the damage. The Respondent subsequently reviewed CCTV footage and GPS records and formed the preliminary view that the vehicle was undamaged before the Applicant’s use and that visible damage appeared after the vehicle had been operated by her.
[9]
On 31 October 2025, the Applicant was issued with a letter signed by Mr Snaidero requiring her attendance at a meeting scheduled for 4 November 2025 concerning the vehicle damage incident.
[10]
The letter stated that the purpose of the meeting was to provide the Applicant with an opportunity to give her version of events and respond to the Respondent’s concerns before any determination was made. The letter further advised the Applicant that she may be accompanied at the meeting by a support person.
[11]
The letter identified the matters to be addressed at the meeting as follows:
- Damage to a company vehicle on Thursday, 30 October 2025;
- Possible failure to report or declare the damage in accordance with Company policy; and
- Possible failure to follow management instruction during and after the incident, despite clear communication to all staff on site.
[12]
The letter also stated that possible outcomes following the meeting may include no further action, a verbal or written warning, a requirement to undertake additional training or coaching, or formal disciplinary action up to and including termination of employment.
Events leading to dismissal
[13]
On 4 November 2025, the Applicant attended the formal investigation meeting. Present at the meeting were Mr Payne, Mr Baxter and Mr Snaidero.
[14]
At the meeting, the Applicant was told that the footage established that the vehicle was undamaged before the Applicant used it, that the Applicant had sole possession of the vehicle during the relevant period, and that damage was observed after the vehicle was returned.
[15]
The Applicant gave evidence that during this meeting she was shown CCTV footage for the first time. She says the footage showed the vehicle before and after her use but did not depict any actual impact or collision.
[16]
The Applicant stated that she only became aware of the vehicle damage when contacted by management and maintained that she did not recall striking anything. She stated that if an impact had occurred, she would have expected to notice or hear it.
[17]
There is dispute between the parties concerning aspects of the discussion during the meeting. The Respondent alleges that after reviewing the CCTV footage, the Applicant altered her explanation and accepted that she may have caused the damage without realising it. The
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Respondent also alleges that at the conclusion of the meeting the Applicant asked whether she would be “fired for my dishonesty”.
[18]
The Applicant contends that she merely asked whether she would lose her job and maintains that she consistently denied knowingly causing any damage.
[19]
At the conclusion of the meeting, the Applicant was informed that no final decision had yet been made and that management would review the matter before determining an outcome.
[20]
On 5 November 2025, the Applicant’s employment was terminated with immediate effect by letter.
[21]
The termination letter stated that the Applicant had failed to report damage caused to company property and that concerns had arisen regarding her honesty and integrity during the investigation process. The Respondent characterised this conduct as serious misconduct and summarily dismissed the Applicant without notice.
The Applicant’s case
[22]
The Applicant contends that there was no valid reason for her dismissal and denies that she caused, or had any knowledge of, the damage sustained by the Respondent’s vehicle on 30 October 2025.
[23]
The Applicant was asked by me at the hearing to describe what occurred from the time she collected the vehicle until the time she returned it. The Applicant gave the following evidence:
“So when I picked up the vehicle, I reversed back to where the containers are. I grabbed some tools to be used when I was about to go to work, which is to fix the paddle wheels. I picked up the kayak because I have to do that when I go fix the paddle wheels and then I drove to the pond, which is less than two minutes to drive there. I parked, I left the car. I brought the kayak down, I went to the pond like in the middle of the pond, tried to fix the paddle wheel. It just took me like 20 minutes and then went back, put the kayak again in the back of the ute and then drove back to the main office. I drove back first to the container to bring back all the tools and the kayak back in the container and then parked the car and left from that.”
[24]
The Applicant was then asked whether she could see the vehicle while she was paddling on the pond, to which she responded “Yes.” When asked whether any other vehicle or person was near the vehicle during that period, the Applicant respond: “No”.
[25]
The Applicant submitted that she only became aware of the damage after management contacted her later that day. She stated that she had used the vehicle for only about 30 minutes and did not notice any impact or collision.
[26]
The Applicant argued that the Respondent lacked direct or reliable evidence establishing that she caused the damage or acted dishonestly. She submitted that the CCTV footage did not capture any collision and merely showed that the dent was visible after she had used the vehicle.
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[27]
She noted that there was no dashcam footage, crash detection system or other corroborating evidence.
[28]
The Applicant further submitted that the investigation lacked procedural fairness. In particular, she said she was not provided with CCTV footage prior to the meeting, limiting her ability to properly review the evidence and prepare a meaningful response.
[29]
The Applicant contended that the investigation was incomplete because no witness interviews were conducted, no character assessments were undertaken and the decision was not reviewed by an independent decision-maker as required under the Respondent’s internal investigation guidelines.
[30]
The Applicant also submitted that the Respondent acted inconsistently in its treatment of comparable incidents. She claimed that other employees had previously caused vehicle damage or engaged in more serious conduct without dismissal resulting.
[31]
The Applicant submitted that the Respondent failed to consider mitigating factors, including the relatively minor nature of the damage, her previously unblemished employment record, strong attendance history and overall work performance.
[32]
The Applicant argued that summary dismissal was disproportionate because serious misconduct requires wilful or deliberate conduct and there was no evidence establishing that she deliberately caused damage or intentionally acted dishonestly.
The Respondent’s case
[33]
The Respondent submitted that the Applicant’s dismissal was for a valid reason and that the dismissal was neither harsh, unjust nor unreasonable.
[34]
The Respondent rejected the Applicant’s assertion that the investigation process lacked procedural fairness. It submitted that the Applicant was notified of the allegations concerning the vehicle damage incident and was provided with a formal written invitation requiring her attendance at a meeting for the purpose of responding to those allegations. The letter clearly identified the subject matter under investigation, advised the Applicant that disciplinary action could result, and expressly informed her of her right to bring a support person. The Applicant ultimately chose not to bring a support person.
[35]
The Respondent submitted that prior to the formal meeting, the Applicant was provided with photographic evidence showing damage to the vehicle. During the investigation meeting, CCTV footage was reviewed in full in the presence of the Applicant and Human Resources representatives. The Respondent acknowledged that the CCTV footage was not distributed to the Applicant in advance, however it says this was necessary because the footage contained images of other employees and operational areas and was therefore subject to privacy obligations.
[36]
The Respondent submitted that throughout the meeting the Applicant was invited to respond to each allegation and was given a genuine opportunity to provide her version of events.
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The Applicant was able to ask questions, seek clarification, request additional time or seek an adjournment at any stage. The Respondent noted that the Applicant did not request an adjournment, did not seek additional preparation time and did not identify any witnesses she wished management to interview on her behalf.
[37]
The Respondent denied that the investigation was procedurally deficient. It submitted the investigation was primarily evidence-based and relied upon objective material including CCTV footage, GPS data, physical inspection of the vehicle damage, photographs and the record of interview. It says there were no disputed factual matters requiring third-party witness interviews or reconciliation of competing witness accounts.
[38]
The Respondent submitted that CCTV footage established that the vehicle was undamaged before the Applicant took possession of it, that the Applicant had sole control of the vehicle during the relevant period, that the vehicle remained continuously within camera frame following her use, and that damage was subsequently observed after the vehicle had been returned. The Respondent says there was no dashcam footage or additional camera angle available.
[39]
The Respondent submitted that during the investigation process the Applicant initially denied any knowledge of the damage but subsequently altered aspects of her explanation after viewing the CCTV footage. It says that based upon the CCTV footage, GPS records and the Applicant’s changing explanations, management formed the reasonable belief that the Applicant either knew, or ought reasonably to have known, that damage had occurred and failed to report the incident as required under her contractual obligations and workplace health and safety obligations.
[40]
The Respondent submitted that the serious misconduct finding did not arise solely because damage occurred to company property. Rather, it says the serious misconduct finding arose from the Applicant’s failure to report a workplace incident together with concerns regarding honesty and integrity arising during the investigation process.
[41]
The Respondent further relied on statements made by the Applicant during the meeting. In particular, it submitted that the Applicant specifically asked: “Will I be fired for my dishonesty?”, which the Applicant denies, and that this statement contributed to a loss of trust and confidence in the employment relationship.
[42]
In response to the Applicant’s contention that comparable incidents were treated differently, the Respondent denied any inconsistency in treatment. It submitted that each incident referred to by the Applicant involved materially different factual circumstances, including different evidence, differing employee conduct following the incident and differing levels of cooperation during subsequent investigations.
[43]
The Respondent submitted that it has consistently treated incidents involving failure to report workplace incidents or falsification of workplace information as serious misconduct. It said that previous comparable incidents had also resulted in termination of employment and the decision in this matter was consistent with organisational practice.
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[44]
The Respondent submitted that reporting obligations apply irrespective of the severity or financial value of any damage.
[45]
The Respondent accepted that the Applicant had no prior disciplinary history and that her attendance and prior employment performance had generally been satisfactory. However, it submitted that prior satisfactory performance does not outweigh what it characterised as a serious breach of reporting obligations and integrity expectations. The Respondent also noted that reporting workplace incidents was not unfamiliar to the Applicant because she had previously reported four other workplace incidents.
[46]
The Respondent rejected the Applicant’s contention that the dismissal decision had been predetermined. It submitted that following the investigation meeting management reviewed all relevant evidence, including CCTV footage, GPS data, the damage assessment and the Applicant’s explanations before reaching a final decision. It says the fact that the decision was communicated the following day does not indicate predetermination but rather reflects that the relevant material facts were sufficiently clear and did not require prolonged evidentiary assessment.
[47]
The Respondent submitted that although dismissal may have significant personal and financial consequences for an employee, those consequences cannot outweigh serious misconduct where a valid reason for dismissal exists. It said that while it was aware of aspects of the Applicant’s visa circumstances and leasing arrangements, those matters could not displace the seriousness of the conduct.
[48]
The Respondent submitted that summary dismissal was justified because of the seriousness of the conduct, specifically the failure to report workplace damage together with the provision of misleading information during the investigation process. It submitted that maintaining consistent workplace standards, safety governance requirements and integrity expectations required immediate termination.
[49]
In summary, the Respondent submitted that the dismissal was not capricious, arbitrary, disproportionate or inconsistent with prior practice. It says the Applicant was afforded procedural fairness, the decision was made after consideration of all relevant evidence, and there is no basis upon which the Commission should find the dismissal unfair.
Consideration
Protection from Unfair Dismissal
[50]
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 her dismissal was unfair within the meaning of the Act.
Was the dismissal unfair?
[51]
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:
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385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(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.
[52]
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?
[53]
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:
a.
whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
b.
whether the person was notified of that reason; and
c.
whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
d.
any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
e.
if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
f.
the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
g.
the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
h.
any other matters that the FWC considers relevant.
[54]
The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd1 as follows:
“… 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.”
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[55]
The onus is on the Applicant to prove her dismissal was harsh, unjust and/or unreasonable.
[56]
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.2
Valid reason – s.387(a)
[57]
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”3 and should not be “capricious, fanciful, spiteful or prejudiced.”4 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.5
[58]
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.
[59]
The fundamental evidence relied on by the Respondent was the CCTV footage. The CCTV footage is in my view not clear because of the angle of the sun and the distance from the camera to the vehicle. Having watched the footage on multiple occasions during and after the hearing, I am not satisfied that the vehicle was undamaged prior to being driven by the Applicant. As a result, I am not satisfied that the damage occurred during the time the Applicant was in control of the vehicle.
[60]
The Respondent did not take steps to otherwise check whether the vehicle may have already been damaged. In this regard, another employee washed the vehicle just prior to the Applicant using it, and Mr Snaidero acknowledged that that employee was not questioned about whether the vehicle was damaged at the time it was washed. There were no pre-inspection reports or the like, and the Applicant did not inspect the vehicle prior to driving it.
[61]
I note that the interview with the Applicant proceeded on the basis that the vehicle was undamaged at the time the Applicant took control of it. Had it been made clear by the Applicant that this was in dispute, further investigations could have been undertaken.
[62]
Because I am not satisfied that the damage occurred as contended by the Respondent, I cannot be satisfied that there is a valid reason for the Applicant’s dismissal.
Notification of the valid reason and opportunity to respond – s.387(b) and (c)
[63]
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,6 in explicit terms7 and in plain and clear terms.8 In Crozier v Palazzo Corporation Pty Ltd9 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:
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“[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
[64]
An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied 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 this concern.11 This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.12
[65]
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 her dismissal was effected.
[66]
I am satisfied on the evidence before me that the Applicant was notified of the reason for her dismissal and given an opportunity to respond.
Unreasonable refusal by the employer to allow a support person – s.387(d)
[67]
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.
[68]
The Applicant was not denied a support person.
Warnings regarding unsatisfactory performance – s.387(e)
[69]
The Applicant was not dismissed for 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))
[70]
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)
[71]
Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
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[72]
I have considered the Applicant’s length of employment and the effect the dismissal will have on her. I do not consider that there are other relevant matters to be considered.
Finding as to unfairness
[73]
Because I am not satisfied that there was a valid reason for the dismissal, I find that the dismissal was unreasonable and therefore unfair.
Remedy
[74]
Having found that the Applicant’s dismissal was unfair, it is necessary to consider what, if any, remedy should be granted. The Applicant seeks the remedy of compensation.
[75]
In considering what is appropriate compensation, I must consider the factors which are set out in s.392(2) of the Act which include:
a.
the effect of the order on the viability of the Respondent’s enterprise;
b.
the length of the Applicant’s service;
c.
the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed;
d.
the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal;
e.
the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation;
f.
the amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and
g.
any other matter that the Commission considers relevant.
[76]
I am not satisfied that an order for compensation would impact the viability of the Respondent’s enterprise.
[77]
The Applicant’s length of employment was short, being some seven months.
[78]
Had the Applicant’s employment not been terminated, she would have continued to earn her usual income.
[79]
The Applicant gave evidence that she obtained other employment 12 weeks after her dismissal and that she secured casual work within that 12-week period, but there is no evidence as to the amount she earned as a result of her casual employment.
[80]
I do not consider it appropriate to make any adjustment for contingencies, nor do I consider that there are other matters to take into account.
[81]
Having considered each of the matters required by s392(2), I am satisfied that the amount of four (4) weeks’ pay is appropriate compensation in the circumstances. If there is a
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dispute about this amount, the parties have liberty to apply within the next 14 days. An order to this effect13 will be issued with this decision.
Hilario v Murray Cod Australia Limited – [2026] FWC 2734 – 21 July 2026 – Dean DP