This is a decision of the Fair Work Commission ordering modest compensation for unfair dismissal.
“Application for unfair dismissal reason – valid reason – procedural fairness considered – no procedural fairness provided – dismissal found to be harsh and unreasonable – reinstatement not appropriate – compensation ordered
[1]
Ms Sarah Kentfield (applicant) has made an application for unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent denies these allegations.
[2]
On allocation of Ms Kentfield’s application to my Chambers directions were issued for the filing of submissions and evidence for the matter to be considered by determinative conference on the 21 May 2026. Both the Applicant and the Respondent filed limited materials which were compiled and provided to the parties in the form a digital hearing book accepted by the parties’ relevant evidence at the commencement of the conference.
[3]
After considering all the material in this matter I have made findings that Ms Kentfield was unfairly dismissed within the meaning of the Act. I have also made findings that in this circumstance, an award of compensation is appropriate. Following a short adjournment, I explained these findings and the reasons for them at the conclusion of the conference ex-tempore. An edited version of these reasons is set out below.
Reasons for decisions
[4]
There is no contest that the respondent is a small business in this circumstance, it has not relied on compliance with the Small Business Dismissal Code, and nevertheless, that code has not been complied with.
[5]
There is no contest that Ms Kentfield is a person protected from unfair dismissal. Under the terms of the Act, she was, at the time of her dismissal, an employee covered by an award or an instrument, whose earnings were below the high-income threshold, and had worked the minimum employment period for a small business employer. Therefore, Ms Kentfield falls within the definition of a ‘protected employee’ for the purposes of the Act.
[2026] FWC 2686
DECISION
[2026] FWC 2686
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[6]
Having considered all the evidence and submissions in this case, on balance, I am satisfied that the ending of Ms Kentfield’s employment meets the definition of an unfair dismissal within the meaning of s.385 of the Act, having regard to the criteria in at section 387 of the Act. I have considered each of those criteria; they are – and will work through them sequentially.
[7]
The first criterion is 387(a), which is whether there was a ‘valid reason’ for the dismissal, and the test here is: Does the employer have a valid reason for ending the relationship?
[8]
I am satisfied there is a valid reason for the ending of the employment relationship. I am satisfied of the evidence the employer has provided as to the reasons it has formed, as to the concerns they had with the Applicant’s conduct on 7 November 2025 and related concerns about competence and performance. These are sound, defensible, and well-reasoned reasons to bring the employment relationship to an end from their perspective, and I accept that evidence. I find this factor is in favour of the respondent and weighs, therefore, against a finding of unfair dismissal.
[9]
The second criterion is s.387(b), and that is whether the person was notified of the reason. The evidence I have heard is that, while I accept there was notification of the reasons for the termination, that only occurred after the Respondent made and communicated its decision to the Applicant. Therefore, I find this factor to be a neutral factor weighed neither for or against a finding of unfair dismissal.
[10]
The next criterion at s.387(c) is whether there was an opportunity to respond to any reason related to the capacity or conduct of the person. I have heard no evidence Ms Kentfield was afforded an opportunity to respond, and I find that that factor weighs in the Applicant’s favour, that it tends toward an unfair dismissal.
[11]
The criterion at s.387(d) is: Was there an unreasonable refusal by the employer to allow a person to have a support person present? I have heard no evidence this is a relevant factor in this matter. I consider it to be neutral in the circumstances of this case.
[12]
Section 387(e) is, in cases where the dismissal relates to performance, as it does in this instance to a degree, was the person warned about the performance prior to the dismissal. I have heard no evidence there was a clear and concise warning of poor performance that put the Applicant’s employment at risk prior to it ending. I find this factor weighs in your favour of Ms Kentfield, that the dismissal was unfair within the meaning of the Act.
[13]
The next criteria at ss.387(f) and (g) relate to the degree of the size of the employer’s enterprise and the absence of a dedicated human resource management specialist. Ms Williamson’s evidence, of course, as the practice manager, goes some way to making a case that there is some expertise in the Respondent in this regard. I have weighed that evidence against the reality that this is a small business without a dedicated team. I find these two factors neutral on the evidence.
[14]
The final factor is s.387(h), any other matters that the Commission considers relevant. In these proceedings, I have had regard to the reality that there was a lack of a proper warning;
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the contemporaneous nature of the performance appraisal that shortly followed the events of the incident where the misconduct occurred; the Applicant’s age, and experience in the workforce; the context of the events of 7 November 2025 where the evidence of the employer is there was no question that the conduct was an issue. It was also not in contention that there was some delay in it being brought to the respondent’s attention, and it was only at the respondent’s initiative that that occurred. And I have heard reasons for that, but nevertheless, it is a balancing exercise.
[15]
These factors weigh in the Applicant’s favour, on balance. This is a further factor in favour of the finding this dismissal is unfair within the meaning of the Act.
[16]
I am next required when making a finding of unfair dismissal to consider appropriate remedies. The first obligation is to consider whether reinstatement is appropriate, and that is set out in s.390. In this case, reinstatement is opposed, and in the circumstances of the evidence I have heard, I think it is not appropriate to order reinstatement. These circumstances include both what I have heard from the parties about that factor, but also the circumstances of the respondent’s enterprise interfacing with clients and consulting practitioners who have expressed concerns that have brought the parties here this afternoon.
[17]
Therefore, I am required to consider what, if any, compensation is appropriate. Ms Kentfield’s evidence is that her income was a sum of $573.20 per week plus superannuation.
[18]
On the question of viability, I accept the Respondents submissions that a significant order of compensation would have a negative impact on it and that this is not in dispute. The next criterion is length of service. The uncontested evidence is that Ms Kentfield worked for the Respondent for just under three years, which is not an overly significant period of time. The next consideration is what renumeration the person would have received or likely have received had they not been dismissed. I accept the Applicant’s submissions that the employment would have continued for some time. I also accept there has been minimal effort to mitigate and that Ms Kentfield has not earned any income since being unfairly dismissed except her 3-week notice period. I don’t consider that income reasonably likely to have been earned is a relevant factor in these circumstances because the employment ended before these proceedings, and before any order being made. I don’t think there are any other relevant matters.
[19]
The next criteria is whether there was any misconduct that requires me to reduce the amount of compensation. I am satisfied that Ms Kentfield engaged in a degree of misconduct, or conduct of concern, on 7 November 2025 that warrants some deduction. I think an appropriate deduction is two weeks in these circumstances.
[20]
Considering all of these factors, my finding is that Ms Kentfield’s employment would have ended within a period of no more than four months from when it did end. I have reached this conclusion based on what the respondent has said about the view they had formed regarding the Applicant’s conduct and performance, and I have taken into account the procedural deficiencies and what may have occurred in circumstances where additional training or support may have been, or would have been, provided. My overall assessment is that, on balance, the Respondent formed a view and would have taken steps within the time that I have identified, to bring the employment relationship to an end.
[2026] FWC 2686
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[21]
In these circumstances, the overall amount of compensation I award is an amount of 16 weeks’ compensation. Three weeks will be deducted according to the provisions of the Act and the established formula set out in Sprigg1 relating to monies earned relevant to the criteria at 392.There is a further deduction of the amount I have apportioned to account for the conduct on 7 November 2025, that is two weeks. The overall sum to be ordered for payment is 11 weeks’ pay at the amount of 573.20 per week, plus superannuation. An Order to this effect was issued on 22 May 2026.”
Kentfield v Dedicated Medical Care – Rosebud Pty Ltd [2026] FWC 2686 delivered 16 July 2026 per Connolly C