The Fair Work Commission can and on occasions does award compensation for unfair dismissal despite making a finding on the evidence that the employee had behaved in a manner regarded by the employer and the Commission as misconduct.
Valid Reason
[13] A valid reason is one which is sound, defensible and well-founded, and not capricious,
fanciful, spiteful or prejudiced: see Austin v Sandgate Taphouse Pty Ltd T/A Sandgate Post
Office Hotel [2024] FWCFB 323 at [52].
[14] Where the dismissal relates to conduct, the Commission must be satisfied that the
conduct occurred and that it justified termination. In King v Freshmore (Vic) Pty Ltd [2000]
AIRC 1019 at [24], a Full Bench of the predecessor body to the Commission said:
The question of whether the alleged conduct took place and what it involved is to be
determined by the Commission on the basis of the evidence in the proceedings before it. The
test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that
the employee was guilty of the conduct which resulted in termination.
[15] Where there are allegations of misconduct, the standard of proof is the balance of
probabilities.
[16] Bin Boy terminated Mr Thomas’ employment by letter dated 13 November 2025.
Relevantly, the letter said:
This letter is to formally notify you that your employment with Bin Boy Environmental Pty
Ltd is terminated effective immediately.
Following a review of recent incidents and your conduct, we have determined that your
actions constitute serious misconduct. These matters include behaviour that is not in the best
interests of the business and has raised significant concerns regarding workplace safety,
compliance with company policies, and overall professionalism.
The nature of this conduct has resulted in a loss of trust and confidence in your ability to
perform your role safely and appropriately. As such, the business has determined that your
employment cannot continue.
[17] In its F3, Bin Boy set out 5 reasons. I deal with each reason in turn.
(1) Unsafe Hard Waste Placement (22 July 2025)
[18] Bin Boy filed a written warning issued to Mr Thomas for leaving rubbish in an
inappropriate location. Mr Thomas says he never received it. But he admitted to the incident
that was the subject of that written warning. Mr Thomas says, and I believe, that he was not
formally spoken to about this incident except that Mr Matthew Barton, managing director of
Bin Boy, sent him a photograph of the hard waste and told him to clean it up. Mr Thomas
says that he then cleaned it up.
[2026] FWC 917
4
(2) Pornographic materials in staff area (10 March 2025)
[19] Bin Boy filed a formal written warning addressed to Mr Thomas for an incident in
which he left pornographic materials in individual drivers’ trays in a staff area. The letter
noted that this behaviour is a “direct breach of the Company’s Sexual Harassment Policy.” Mr
Thomas says he never received the written warning. But he confirmed that he had placed
pornographic materials in the staff area, which he removed after Mr Barton told him to via
text message. This occurred around early March 2025.
[20] Bin Boy filed its workplace behaviour and social media policy, which it implemented
in July 2025 after a WorkSafe Victoria audit. Mr Thomas said that he had seen it because he
had been sent it to read. The document provided to me included an electronic signature
showing his name but Mr Thomas said that he did not sign it, including that he had not signed
it electronically. Ultimately, the policy is not relevant to the above incident because the
evidence of the respondent is that the policy came into existence after the above incident
occurred.
(3) Driving infringements
[21] Mr Thomas was under an extended demerit point period that started on 7 August 2025
and would end on 6 August 2026. During this period, if Mr Thomas got any demerit points or
his licence was suspended or cancelled for a driving offence, his licence would be suspended
for 6 months. Mr Thomas confirmed that he was under an extended demerit point period.
[22] Mr Thomas incurred 2 speeding fines driving company vehicles while under the 12-
month good behaviour requirement.
[23] Bin Boy received infringement notices on 20 and 2 October 2025 for their vehicles
speeding on 6 and 27 September 2025, respectively. On both occasions they nominated Mr
Thomas as the driver of the vehicle (on 31 and 28 October respectively). Mr Thomas
confirmed that the incidents occurred.
(4) Texting while driving
[24] On 11 October 2025, Bin Boy sent Mr Thomas a photo of him texting while driving
which said:
Don’t text and drive.
[25] Mr Thomas replied:
What are you gonna do sack me
[26] Mr Thomas confirmed that the incident occurred.
[2026] FWC 917
5
(5) That he was dismissive of a safety message
[27] On 13 November 2025 (the date of his termination) and in reply to a work group chat
on WhatsApp messaging service, Mr Thomas posted:
Another group chat why so many this is getting a bit beyond a joke naw
[28] The group chat was headed IMPORTANT SAFETY IN– [the rest of the title of the
group is cut off].
[29] Mr Thomas said his complaint was because there were 50 other work group chats. Mr
Thomas provided a list of WhatsApp groups to show that there were 50 chats related to Bin
Boy. Not all appear to be clearly related to Bin Boy and some to seem to be one-to-one chats
with individuals, but a large proportion of the 50 groups appear to be Bin Boy related work
group chats.
[30] The respondent said that Mr Thomas’ message followed a message about a safety
incident that had occurred at another workplace and was a reminder about the importance of
health and safety in the workplace. The respondent said that this was an escalation of Mr
Thomas’ behaviour and demonstrated a poor attitude towards safety, which was extremely
important to the respondent.
Other reasons raised at the determinative conference
[31] The respondent’s representative also raised at the determinative conference that Mr
Thomas’ communications with her, about what he perceived to be errors in his pay, were
reasons that justified Mr Thomas’ dismissal. The respondent provided me with screenshots of
the text messages. Mr Thomas does not dispute that he sent the text messages.
Conclusion re valid reason
[32] I am satisfied that the conduct in each of the above matters occurred. I am satisfied
that the incidents of placing pornographic materials in a staff area, texting while driving and
speeding in the work vehicle are matters that would be valid reasons for dismissal.
[33] Placing pornographic materials, particularly in the way that was alleged, is
unacceptable and inappropriate in the workplace. I do not consider that awareness of policy is
required.
[34] Texting while driving and speeding are offenses. Where it occurs during employment,
as it does here, it is inappropriate workplace behaviour.
[35] Whether there are mitigating factors may be relevant. I address that further below.
[2026] FWC 917
6
[36] I am not satisfied that the other matters are valid reasons for dismissal. I accept that
Mr Thomas’ conduct may have been poor in relation to the placement of the hard waste, but it
was not of such gravity as to be a valid reason for dismissal. That Mr Thomas was under an
extended demerit period was not necessarily related to his employment (other than that he was
employed as a driver and so having a license would have been required for his employment).
His comment in response to a WhatsApp group chat was insensitive and inappropriate, but
not a valid reason for dismissal. Last, his communications with the respondent’s
representative about his pay does not do him credit but do not rise to threatening or
intimidatory. They do demonstrate a poor attitude; this is not of itself a valid reason for
dismissal.
Procedural Matters – s387(b), (d) & (e)
[37] Bin Boy never warned Mr Thomas that it proposed to dismiss him for any of the above
reasons, and so he was not notified of the reasons and did not have any opportunity to respond
to or provide explanations about them. On 13 November 2025, Mr Barton called Mr Thomas
into a meeting after his work for the day was completed. He was handed the letter of
termination and asked to read it. Mr Thomas was then asked to return his key, which he did,
and he left the workplace.
[38] I am not satisfied that Mr Thomas received the written warnings dated 10 March 2025
(relating to pornographic materials in the staff room) or 22 July 2025 (relating to leaving the
hard waste in an inappropriate location). Mr Thomas’ clear evidence is that he had never seen
the warnings prior to seeing the respondent’s materials. He otherwise confirmed that the
conduct that was the subject of the warnings occurred and that he received text messages
about them. Those text messages did not inform him that the behaviours were inappropriate
and that he was issued with a disciplinary outcome as a result; they simply required him to fix
the issue, which he did.
[39] I am troubled by the possibility that the employer fabricated the warnings, which Mr
Thomas says he saw for the first time when the employer responded to his application. The 10
March 2025 warning refers to Mr Thomas signing the Workplace Behaviour policy three days
prior. However, the employer was clear that the policy did not exist until after a WorkSafe
Victoria audit in July 2025. The employer was on notice that Mr Thomas’ argument about
why his dismissal was unfair was that he had never received any warnings about conduct or
performance. They chose to supply warnings with their response materials but chose not to
file any witness statements, and the named signatory on the warnings and termination letter
did not attend the determinative conference. I do not give the warnings any weight.
[40] If Mr Thomas had received the warnings, and particularly the warning dated 10 March
2025 relating to pornographic materials in the staff room, I would be of the view that the
employer could not rely upon that incident as a valid reason for dismissal. If the employer’s
version regarding the warning is accurate, the disciplinary action it chose to take was to issue
Mr Thomas with a formal written warning. As far as the facts can be taken, it does not appear
that Mr Thomas repeated the conduct for which he was warned, or otherwise took into work
or displayed at work pornographic materials after the warning.
[2026] FWC 917
7
[41] Section 387(e) is not relevant to this matter as the dismissal did not relate to
unsatisfactory performance.
Size of Employer & HR expertise – s387(f) & (g)
[42] Bin Boy employed 29 people at the time of Mr Thomas’ dismissal. They engaged Ms
Papadopolous as external payroll and HR support. It is not clear that they used that support or
if they did, that it was effective. I take into account that Bin Boy are not a large business. But
they employ a reasonable number of people. Their procedural failings are not minor and
unacceptable.
Any other matters
[43] Bin Boy did not summarily dismiss Mr Thomas; they paid him 2 weeks’ payment in
lieu of notice.
Conclusion about harsh, unjust and unreasonable
[44] Taking all the above factors into account, I am of the view that while there were some
valid reasons for Mr Thomas’ dismissal, it was procedurally unfair. The employer is large
enough that it should not be exonerated from its procedural failings.
Remedy
[45] As I have found Mr Thomas’ dismissal to be unfair, I may order a remedy.
[46] I am of the view that reinstatement would not be appropriate in this case. Mr Thomas
did not seek reinstatement, and gave evidence that he obtained new employment which started
one month after his employment with Bin Boy ended. In these circumstances, reinstatement
would not be appropriate.
[47] As I have found that reinstatement is not appropriate, I must now consider whether an
order for compensation is appropriate under s 390(3)(b). The Full Bench has noted that the
question of whether to order a remedy in a case where a dismissal has been found to be unfair
remains a discretionary one: Nguyen v Vietnamese Community in Australia [2014] FWCFB
7198 at [9] and whether an applicant has suffered financial loss may be a relevant
consideration: Vennix v Mayfield Childcare Limited [2020] FWCFB 550 at [20].
[48] I am of the view that in all the circumstances of this case that it is appropriate to order
compensation. My reasons and assessment of the amount are set out below.
[2026] FWC 917
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[49] The long-established approach to assessing compensation in unfair dismissal matters
was set out in Sprigg v Paul Licensed Festival Supermarket (1988) 88 IR 21, which the Full
Bench of this Commission has since applied under the current Act: see ERGT Australia Pty
Ltd v Govender [2021] FWCFB 4508 at [35].
[50] I summarise the Sprigg formula as follows:
• Estimate the remuneration that employee would have received if the employer had not
terminated the employment;
• Deduct monies earned since termination;
• Discount the remaining amount for contingencies;
• Calculate the impact of taxation
[51] While Sprigg sets out the method, I must nevertheless take account of all the
circumstances of the case and the specific criteria listed in s 392: Elefantis v The Trustee for
Timber Ridge Unit Trust [2022] FWCFB 43 at [67]. The overall consideration is that the level
of compensation must nevertheless be appropriate (that is, neither clearly excessive or clearly
inadequate) having regard to all the circumstances of the case: McCulloch v Calvary Health
Care Adelaide [2015] FWCFB 873 at [29].
[52] Despite my directions, neither party provided me with detailed submissions or
evidence in relation to the considerations under s 392. No submissions were made about the
impact of any compensation on the viability of the business. I do not consider that Mr
Thomas’ period of service was lengthy. Mr Thomas mitigated his loss by obtaining
employment shortly after his employment with Bin Boy ended. He started that new
employment around one month after his employment with Bin Boy ended.
[53] In relation to the period that he would have remained employed with Bin Boy, I am of
the view that had the employer taken appropriate procedural steps to warn Mr Thomas that his
conduct was unsatisfactory and needed to improve, he would have remained in employment
for a further 4 weeks. I also take into account that Bin Boy made a payment in lieu of notice
to Mr Thomas.
[54] Mr Thomas’ conduct certainly did contribute to his dismissal but this does not
outweigh the significant procedural failings such that an order for compensation should not be
made. I have taken it into consideration but do not make any deduction for it in this matter.
[55] I am of the view that an appropriate award of compensation is a further 4 weeks’ pay,
from which payment in lieu of notice must be deducted. My calculations are set out in the
following table.
[2026] FWC 917
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Step 1 – 392(2)(c) – Remuneration if employee had not
been dismissed
> Weeks wages per week 2,692.00
> Projected further weeks of employment 4.00
Sub-total 10,768.00
Employer superannuation – 11% from 1 July 2025 1,292.16
Total Remuneration 12,060.16
Step 2 – Discounts
Payment in lieu of notice (2 weeks’ pay) 5,384.00
392(2)(Mitigation of Loss (money earned since termination) Not relevant
392(3) Deduction for Misconduct None
Discount other contingencies None
Total after deductions 6,676.16
Step 4 – Taxation
To be taxed according to law
Step 5 – 392(5) – Apply compensation cap
> 26 weeks of wages 69,992.00
> Half the amount of the high income threshold 91,550.00
[56] I order a payment of $6,676.16, gross (before tax) and inclusive of superannuation….
Thomas v Bin Boy Environmental Pty Ltd [2026] FWC 917 per Tran C
