This extract from an unfair dismissal decision of the Fair Work Commission deals with the legal principles which the Commission applies when determining whether a small business employer has grounds to dismiss an employee for serious misconduct.
“Was the dismissal harsh, unjust or unreasonable?
[16] It is not contested that the Respondent is a small business and that the Applicant was employed as a casual employee for more than 2 years on a regular and systematic basis. Mrs Little met the minimum employment period to lodge the unfair dismissal application. The Respondent did not submit a completed Small Business Fair Dismissal Code checklist, but as a small business the relevance of Small Business Fair Dismissal Code (the Code) is to be determined before consideration of the criteria of what makes a dismissal harsh, unjust or unreasonable under s.387 of the Act. The relevant legislation follows:
[17] Section 385 of the Act is expressed in the following terms:
“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.”
[18] Section 388 of the Act provides:
“388 The Small Business Fair Dismissal Code
(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal
Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”
[19] The Code contains the following definition of Summary Dismissal:
“Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.”
[20] The provisions concerning other dismissals other than summary dismissal requires the employer to give the employee the reason why the employee is at risk of being dismissed and the reason must be valid based on the employee’s capacity or conduct. The employee must be verbally warned or preferably in writing that they risk being dismissed if there is no improvement. The employee must be given an opportunity to respond and a chance to rectify the problem
Consideration
[21] Mrs Little submits that she was not informed of the reason for her dismissal nor given a warning that her employment may be terminated on the basis of capacity or conduct. It is not contested that Mrs Little received no warnings prior to her dismissal. Her employment was dismissed on 13 May 2025, the day after the mediation meeting where the incident between Mrs Little and Debbie was discussed. It is not contested that Debbie lodged a complaint, which asserted that the Applicant was yelling, swearing and kicked a water bottle in her direction as she was leaving. Mrs Little contests that she kicked a water bottle but admits to throwing her bucket and admits to being agitated and shouting.
[22] The Respondent asserts that it held serious concerns for the health and safety of not only Debbie but also other employees and this was the reason for the dismissal. It contends that the mediation meeting provided no comfort that Mrs Little could safely continue to work with her coworkers. It accepts that no reason was given for the dismissal.
[23] The unfair dismissal protections under the Act provide provisions for employees employed by a small business. A small business is defined as employing less than 15 employees.1 It is not contested, and I accept that the Respondent in this matter is a small business employing fewer than 15 employees. In the event the dismissal is not in compliance with the Code, then the factors under s.387 of the Act are to be considered whether the dismissal was harsh, unjust or unreasonable.
[24] Section 396 of the Act requires consideration of preliminary matters before merit. These matters concern whether the application was made by a dismissed person within 21 days of the dismissal,2 whether the person is protected from unfair dismissal, whether the dismissal was consistent with the small business dismissal code, and/ or whether the dismissal was a case of genuine redundancy. The Applicant’s employment was dismissed and the application made within the statutory time frame. It is not contended that the dismissal was a genuine redundancy. Instead, it is contested on whether the summary dismissal was unfair or consistent with the Code. In respect of whether the person is protected from unfair dismissal, s.382 of the Act provides that a person is protected from unfair dismissal, if at the time of being dismissed the person met the minimum employment period and an industrial instrument applied or their annual rate of earnings is less than the high-income threshold. It is not in contest that Mrs Little was dismissed and that she met the minimum employment period of 12 months. Further an industrial instrument applied and she was not paid in excess of the high-income threshold.
[25] If the Applicant’s dismissal is consistent with the Code, then under s.385 of the Act, the Applicant was not dismissed unfairly.
[26] The leading authority in relation to summary dismissal under the Code is Pinawin.3 The original decision was appealed and the Full Bench determined that where the Code applies there are different considerations. The Code requires that the employer had reasonable grounds to reach the view that the Applicant’s conduct is serious enough to justify immediate dismissal. The Bench determined that s.396 of the Act requires the determination whether the dismissal is consistent with the Code before considering merits.4
[27] The Bench in Pinawin considered the application of the Code and in context of the relevant principles and relevant cases determined in Australia.5 Having considered these relevant matters, the Full Bench concluded that there are two steps to determine whether the Code is satisfied. Relevantly the Bench determined:6
[29] First, there needs to be a consideration whether, at the time of dismissal,
the employer held the belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly, it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in their belief that it held.”
[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.
[28] Consistent with the principles of Pinawin, the question is whether at the time of the dismissal, did the Respondent hold the belief that the Applicant’s conduct was sufficiently serious to justify summary dismissal. And secondly, had the Respondent carried out a reasonable investigation into the matter.
[29] The evidence was that the Respondent believed the conduct was sufficiently serious. Mrs Little admitted to conduct that was directed at Debbie and had the effect of intimidating or frightening her during the mediation meeting. However, Mrs Little expressed some regret and was at pains to explain that she did not intend to harm Debbie.
[30] A number of employees employed by the Respondent are engaged through Workforce Australia and from backgrounds that renders them vulnerable in the workplace. The evidence that Debbie was intimidated by Mrs Little’s conduct was not contested, in fact the Applicant admitted her conduct at times upset other staff and she provided an example where she upset a person because she used “sarcasm” when they called bathmats foot mats. Mrs Little describes her conduct as sarcastic humour and admits to inappropriate language (swearing). In respect to comments that her appearance (coloured hair and long nails) might intimidate some people, she accepts that, but her creative flair was intended that she feel better about herself.
[31] I am satisfied that on the evidence that the Applicant’s described “sarcasm” included yelling, or shouting, or making hurtful comments about someone and towards employees already fragile. This conduct in the workplace is not only hurtful but a risk to health and safety. A number of witnesses described the conduct as a form of bullying. Even if the Applicant did not intend to bully or harm other staff, her conduct had the same effect.
[32] Mrs Little took offence to the comment that her appearance threatened or intimidated her colleagues. I am not satisfied that the Applicant’s colourful or creative appearance caused health and safety concerns but I do accept that her appearance projected a level of confidence.
Mrs Little, like many of her coworkers had personal challenges resulting in varying levels of vulnerability. However, having observed the witnesses, Mrs Little presented confidently in comparison to Debbie and despite her intentions, it is reasonable to conclude on the evidence that the conduct was threatening and intimidatory causing a risk to health and safety.
[33] Mrs Little’s evidence was that she was annoyed and upset on the day as she forcefully threw her bucket down. There was an allegation that she kicked a water bottle in Debbie’s direction. Some dispute arose as to whether the bottle was metal or not, but I am satisfied on the weight of witness evidence that there was a bottle, whether it was metal or plastic is irrelevant. Debbie admits to rushing out after the Applicant started swearing and yelling at her and “saying she was sick of her attitude”, she admits to hearing a crash but did not turn around as she feared the Applicant. On the other hand, Beverly saw the Applicant kick a plastic drink bottle in Debbie’s direction and verbally expressed anger towards her.
[34] I am satisfied on the evidence before me that the Applicant used inappropriate language that was threatening towards Debbie and that such conduct has occurred at other times in the workplace.
[35] I am satisfied that consistent with the evidence of the Directors that there were no performance issues. Both the Applicant and Debbie were both valued employees, however, the conduct displayed by the Applicant was considered threatening and aggressive and a threat to the health and safety of other employees, particularly Debbie who not only complained about the incident but advised that she would leave if she was required to work while the Applicant worked on site. Debbie’s evidence was persuasive that she was fed up and was extremely anxious due to the constant intimidation from the Applicant. The Applicant submits that her conduct was not intended to be hurtful, however, in such matters the intention of the person is not the test, rather it is relevant whether the conduct had the effect of causing risk to the health and safety of employees.
[36] The Applicant contests the evidence of Emma – the Manager that says that she explained the reason for the dismissal in the phone call with the Applicant on 13 May 2025. However, the Applicant does not contest that the meeting of the day before which involved the Directors, Debbie, the witness Beverly, Manager’s Emma and Corey and the Applicant with her support person Rachel. The Applicant read out a statement where she apologised “if she hurt anyone”, there was discussion about the incident, Debbie did not accept the apology as she did not consider it sincere because of the consistent treatment of disrespect and intimidation. Debbie left the meeting distressed.7 Evidence from the Directors and Managers was that the Applicant acknowledged that she used abusive language and engaged in physically threatening behaviour towards Debbie. It was also the evidence from the Respondent’s representatives that the Applicant was told that such conduct “not only caused distress to colleagues but may also be observed by guests staying at the property, negatively impacting the reputation and professionalism of the business.”8 It is not contested that reconciliation between the Applicant and Debbie was not achieved.
[37] The Code definition of serious misconduct includes theft, fraud, violence and serious breaches of health and safety procedures. With the use of the word includes, serious misconduct is not limited to those examples listed in the definition contained in the Code.
[38] Relevantly, a Full Bench in Ryman v Thrash9 considered the application of the Code, the definition of serious misconduct and what dismissals are dealt with by the “summary Dismissal” section of the Code. The Bench noted the different expressions in the Code but importantly held that summary dismissal means “dismissal without notice arising from the breach of an essential term of the employment contract, a serious breach of a non-essential term of the contract, or conduct manifesting an intention not to be bound by the contract in the future on the part of the employee.” The Bench then considered misconduct that may give rise to summary dismissal to include misconduct, disobedience, incompetence or negligence.10
[39] Further while considering the definition of serious misconduct, the Bench observed that an assessment of the degree of seriousness may constitute a valid reason for summary dismissal and there is no fixed standard but statutory instruments can influence the definition. The view was expressed that the dismissal for serious misconduct is to be read in terms of the meaning in Regulation.1.07 of the Fair Work Regulations 2009. Therefore, the whole definition in Regulation 1.07 is covered by the Code.11
[40] Relevantly Regulation 1.07 provides:
“Meaning of serious misconduct
(1) For the purposes of the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
Examples of serious misconduct–employees
(2) For the purposes of subregulation (1), conduct that is serious misconduct includes the following conduct of an employee:
(a) wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business;
(c) engaging in theft, fraud, assault or sexual harassment in the course of the employee’s employment;
(d) being intoxicated at work;
(e) refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(3) Paragraphs (2)(c) to (e) do not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.”
[41] The Applicant’s conduct was captured by the definition of serious misconduct in respect to conduct causing serious and imminent risk to health or safety of a person or the reputation of the employer’s business. The Respondent held the belief that the conduct was serious enough to affect health and safety of employees. Further at the time of the dismissal the Respondent held the belief that the Applicant’s conduct was sufficiently serious to justify summary dismissal and carried out a reasonable investigation into the matter the day prior. The Respondent had a valid reason and even if there were any deficiencies in the process, the Respondent met the requirements of the Small Business Fair Dismissal Code.
[42] In any event, I am satisfied that the Applicant was not oblivious to the reasons for her dismissal. The dismissal occurred immediately after the meeting which was called to address the incident of 10 March 2025. A meeting no less, where the Applicant read her pre-prepared statement that apologises for her conduct if she hurt anyone. I am satisfied that Mrs Little understood that her conduct of 10 March led to the hours of work restricted to weekends when Debbie was not working and following the mediation where Debbie did not accept the apology, that the reason for dismissal was a reasonable conclusion. Understandably Mrs Little was upset by the decision, and it is unfortunate as she enjoyed going to work and evidently was a good worker. However, her conduct let her down. Her characterisation of sarcasm and intimidatory conduct crossed the line and became a health and safety risk. Mrs Little’s dismissal was immediate (a summary dismissal for serious misconduct) in a telephone call on 13 May 2025, the following day after the failed remediation meeting held by the Respondent between the Applicant and the complainant.
[43] I am satisfied that the Respondent believed on reasonable grounds that the employee’s conduct was sufficiently serious to justify immediate dismissal and had made reasonable investigations into the matter. This satisfies the requirements of the Small Business fair Dismissal Code.
[44] As I find that the Respondent has met the requirements of the Small Business Fair Dismissal Code, I need not consider s.387 of the Act.
Conclusion
[45] Having considered all of the materials before me I am satisfied that the Respondent is a small business covered by the Code. The dismissal was a summary dismissal, i.e. a dismissal without notice. The Applicant engaged in serious threatening conduct affecting the health and safety of employees which is a serious matter covered by both the Code and Regulation 1.07. The Applicant’s alleged intention of sarcastic humour or lack of intention to harm is not relevant. The Respondent held the belief that the Applicant’s conduct was serious and enough to justify summary dismissal. The Respondent reasonably informed itself through taking the complaint and conducting the mediation meeting and this belief was on reasonable grounds. For these reasons I find the Applicant’s dismissal was consistent with the Small Business Fair Dismissal Code. Consequently, per s.385 of the Act, the Applicant was not dismissed unfairly.
[46] Accordingly, the application by for unfair dismissal remedy by Mrs Little against Parkside Inn Geelong Pty Ltd is dismissed.”
Little v Parkside Inn Geelong Pty Ltd [2025] FWC 3063 delivered 13 October 2025 per Yilmaz C