This decision of the Fair Work Commission in an unfair dismissal case demonstrates how the legal issues of onus and burden of proof play out in such cases.
“Application for an unfair dismissal remedy – whether applicant deleted emails, calendar entries and documents on respondent’s computer system – whether applicant set-up an automatic redirection of her work emails to another email address – evidence relied upon to ground allegations against applicant not expert evidence – allegations against the applicant not proven on the balance of probabilities – no valid reason for dismissal – no procedural fairness – unfair dismissal – compensation ordered
[1] Ms Sharron Pike (Applicant) has filed an unfair dismissal application (Application) with the Fair Work Commission (Commission) alleging that she was unfairly dismissed (within the meaning of s.385 of the Fair Work Act 2009 (Act)) by her employer, Agius Property Group Pty Ltd (Respondent).
[2] The Respondent denies that it unfairly dismissed the Applicant. It says that the Applicant was rightly dismissed for:
a) serious misconduct (involving the deletion/redirection of work emails, the deletion of calendar entries, and the deletion of other electronic files from the Respondent’s computer system); and
b) on-going poor work performance concerns.
[3] A hearing was conducted to resolve whether or not the Applicant was unfairly dismissed. At the hearing, the Applicant appeared for herself, and Mr Liam Meagher, of Counsel, instructed by Ms Victoria Quayle, Solicitor, Coleman Greig Lawyers, appeared with permission on behalf of the Respondent.
Background
[4] The Respondent is a real estate agency based in the Norwest Business Park. It provides real estate services to clients in and around the Hills Shire (Bella Vista and Baulkham Hills), in New South Wales.
[5] The Applicant worked for the Respondent from 10 November 2023 to 2 September 2024. She was initially employed as a fulltime Business Development Manager (BDM) on a commission only basis.1 In February 2024, the Applicant was appointed to the salaried role of Property Manager.
[6] The Real Estate Industry Award 2020 applied to the Applicant’s employment with the Respondent. A written employment contract between the Applicant and Respondent (in respect of the Property Manager role) dated 12 February 2024 applied to the Applicant’s employment at the time of her dismissal.2
[7] In her role as BDM, the Applicant was responsible for bringing in new business (clients) to the Respondent. Her role substantively consisted of contacting potential clients and inducing them to become the Respondent’s clients.3 She performed this role remotely from the Northern Territory until January/February 2024.4
[8] In her role as Property Manager, the Applicant was responsible for managing all aspects of the rental properties of the Respondent’s various clients.5 In performing this role, the Applicant worked from the Respondent’s office, and remotely from home (in Seven Hills, New South Wales).
[9] In her roles as BDM and Property Manager, the Applicant reported to Mr Alistair Agius, Director, and Ms Denise Abood, General Manager.
23 July 2024 Warning, and alleged performance management
[10] Ms Abood in her evidence, refers to “weekly” meetings in relation to the Applicant’s performance from May 2024.6 The only documentary evidence relied upon in relation to these “weekly” meetings is an email dated 16 May 2024, which raises various operational issues that one might expect to arise in the ordinary course of running of a property management business.7 I do not accept that Ms Abood’s evidence supports any ‘specific’ form of “performance management” of the Applicant. Rather, I accept the Applicant’s evidence that weekly meetings were conducted throughout the Applicant’s employment (with all relevant staff present) as a standard business practice by the Respondent.8
[11] The Applicant was issued a written warning, purportedly regarding her “misconduct in adhering to policy & procedure”, on 23 July 2024 (23 July Warning).9 This warning was handed to the Applicant at a weekly staff meeting in the presence of (or in front of) other employees. The Applicant had no notice or prior opportunity to respond to the allegations made, and conclusions reached, in the warning.10 Despite the Respondent’s Form F3 stating that the 23 July Warning “noted specifically which policies and procedures [the Applicant] had failed to follow”, the 23 July Warning contains no specifics whatsoever beyond generalist references to “previous meetings, emails & discussions” and a broad direction for the Applicant to “improve [her] conduct”.11
[12] An email following the weekly staff meeting on 23 July 2024, identifying issues that the Respondent needs to resolve to pass an audit test by the NSW Department of Fair Trading, is directed to the “PM Team”, as opposed to the Applicant individually.12 In other words, this email highlights general structural and system deficiencies at the Respondent’s business, as
opposed to specific performance or conduct issues only, or only directly, involving the Applicant.
[13] The Respondent says that post the 23 July Warning, the Applicant was individually performance managed.13 The Applicant denies this. The Respondent’s claims in relation to its purported individual “performance management” of the Applicant post 23 July 2024 are not supported by any documentary evidence of the asserted performance discussions that occurred directly with the Applicant.14 I am not satisfied on the evidence before me that the Applicant was individually performance managed by the Respondent post 23 July 2024.
[14] Mr Agius attached to his witness statement 48 pages of handwritten diary (or audit notebook) entries that he says support his position as to the Applicant’s poor performance.15 The Applicant responded to some of these entries in her reply evidence.16 I was not taken, in any substantive sense, to Mr Agius’ handwritten notes during the hearing. I am not in a position to decipher (or pick through) Mr Agius’ diary entries for the purposes of resolving any issue in these proceedings.
Respondent’s computer authentication software – ‘Duo’
[15] The Respondent uses two-factor authentication software, ‘Duo’, to verify remote logins to its computer system. Duo operates by way of a software application (App) that is installed on a registered user’s mobile telephone device – against his or her relevant login details. When a user attempts to log into their account remotely from a desktop computer or laptop (so as to gain access the Respondent’s computer system), a message is sent to the Duo App on the registered user’s mobile telephone, and must be authenticated (approved) on that mobile telephone device. It is presumed that the mobile telephone device itself also has a passcode, or biometric fingerprint reader (or facial recognition software), to access it.
[16] In this case, the Duo App was installed on the Applicant’s personal mobile telephone device, and she was registered as a relevant user on that device. To gain access to the Respondent’s computer system remotely, the Applicant needed to login and be authenticated via Duo.
[17] Duo does not operate, or is not required, when a user logs into the Respondent’s computer system at the Respondent’s office premises (i.e. it only operates, or is only required, for remote logins). 17 I understand that a user logged in remotely (to their individual account) will be kicked out or overridden by a user who logs in to the same account from the office (i.e. two persons cannot be logged into one user account at the same time, and an office login to a user account takes priority by kicking out the user remotely logged in).18
[18] Aside from Duo, Mr Agius and Ms Abood had access to the Applicant’s user account, including her login details and password.19 In other words, Mr Agius and Ms Abood had the ability to access the Applicant’s user account at the office at any time, and could enable other employees at the Respondent’s office to access the Applicant’s user account. The contention that access to the Applicant’s user account was at all times restricted to only the Applicant, Mr Agius and Ms Abood, cannot be sustained on the evidence.
What did the Applicant do on 26 August 2024?
[19] On 26 August 2024, the Applicant left the Respondent’s office at approximately 2:00PM to go to a routine home/rental inspection.20 Whilst travelling to this routine home/rental inspection, the Applicant says that she suffered a panic attack in her car. As a result of this panic attack, the Applicant decided to attend upon her doctor (GP) for a consultation (check-up/in). She picked up her sister, Ms Teresa Power, on the way (to accompany her to the doctor’s appointment).
[20] At approximately 2:30PM, the Applicant arrived at her GP’s office. She concluded her visit with the GP at approximately 3:02PM. At approximately 3:17PM, the Applicant purchased a bottle of scotch from the nearby bottle shop, and shortly thereafter, purchased some sugar free Cola (as a mixer for the scotch) from the nearby supermarket. The Applicant then drove home directly, arriving home at approximately 3:22PM.
[21] The Applicant did not attend for or perform any work during the period 27 August 2024 to 1 September 2024. She was certified by her medical practitioner as being unfit for work from 26 August 2024 to 1 September 2024.21
[22] The Respondent arranged for someone to attend upon the Applicant’s residential premises on 27 August 2024 to retrieve her work mobile telephone. Given that the Respondent’s clients have the Applicant’s work mobile telephone number to contact her, the Respondent took possession of this phone so as to engage with clients that called during the Applicant’s absence from work.
Remote access to the Respondent’s computer system on 26 August 2024, including the deletion of electronic files and redirection of emails
[23] The Respondent relies upon evidence from Mr James Borg of Teamwork Technology (the IT management provider to the Respondent), to the effect that at 3:26PM on 26 August 2024:
a) there was an external (remote) login, to the Applicant’s user account, on the Respondent’s computer system; and
b) a two-factor authentication message was sent to the Applicant’s Duo App on her registered (personal) mobile telephone, which was approved on that device.
[24] As detailed further below, Mr Borg’s evidence is that he logged into the Respondent’s computer system on 29 August 2024, and saw that on 26 August 2024 Microsoft Outlook emails and calendar entries under the Applicant’s user profile, along with numerous other documents, had been deleted (the Deletion). He also says that he discovered that a redirection rule had been set up for the Applicant’s emails, causing emails sent to the Applicant’s Microsoft Outlook Inbox to be automatically forwarded to another email address.
[25] The Applicant denies that she remotely accessed the Respondent’s computer system on 26 August 2024, or that she otherwise used her registered (personal) mobile telephone device to access the Duo App on that day (i.e. so as to enable her to remotely login to the Respondent’s
computer system after being authenticated on the Duo App). She further denies that she was involved, directly or indirectly, in the Deletion, or the setting up of the redirection rule.
Discovery of the Deletion on 27 August 2024
[26] There is some confusion on the Respondent’s evidence as to how the Deletion was discovered. It appears that on 27 August 2024 Ms Abood instructed other unnamed and unidentified staff to log into the Applicant’s user account at the office to perform some of the Applicant’s work whilst she was away. It was apparently these other unnamed and unidentified staff who brought the Deletion to the attention of Mr Agius and Ms Abood.22
[27] Mr Agius was also aware of the deletion on 27 August 2024.23 Mr Agius directed Mr Borg to investigate the source of the Deletion on 29 August 2024 (i.e. two days after it had been discovered). Notwithstanding the Respondent’s purported serious concerns about the Deletion, the delay in notifying Mr Borg of the Deletion, or otherwise doing anything about the Deletion at the time of, or immediately after its discovery, is wholly unexplained.24
The IT Report about the Deletion
[28] It was not in dispute that Mr Borg is not an IT expert witness, nor was his statement, or the report/s produced by him, an expert report/s.25 That said, I make no suggestion whatsoever that Mr Borg was other than an honest witness. As further explained below, my difficulty with Mr Borg’s evidence is that in cases dealing with allegations said to be supported by computer systems and processes, documentation (especially contemporaneous documentation) is always to be preferred over an honest recollection.
[29] Mr Borg produced an IT incident report on 30 August 2024 outlining what he had observed with respect to the Deletion, and any steps he took in response (First Report).26 A further report, building upon and consolidating the First Report (and correcting errors therein), was created on 2 September 2024 (Second Report).27 In his witness statement filed in these proceedings, Mr Borg made yet further corrections to the Second Report.28
[30] Mr Borg’s evidence can be summarised, by reference to the Second Report and his other evidence before the Commission,29 as follows:
a) Mr Borg logged into the Respondent’s computer system on 29 August 2024 as an ‘administrator’. He thereafter sought and obtained access to the Applicant’s user account on the Respondent’s computer system.
b) Whilst logged into the Applicant’s user account, Mr Borg saw that:
i) the Applicant’s Microsoft Outlook emails (in her Outlook Inbox) and her Outlook calendar entries did not appear (or were blank/empty);
ii) when he went in and recovered the Applicant’s trash (or deleted items), he discovered (after recovery had occurred) that all of the Applicant’s emails (from her Inbox) were in there, having been previously “deleted by a user in the
afternoon of 26 August 2024”. He has not specified the ‘time’ of this deletion, only that it occurred in the ‘afternoon’ of 26 August 2024;30
iii) noting that there were also no emails showing up post the deletion date of 26 August 2024, Mr Borg investigated as to why emails sent to the Applicant’s Inbox post 26 August 2024 (i.e. post the deletion date) were not in her user Inbox. He found that a user had placed a redirection rule for incoming emails, automatically sending them to an external email address. When Mr Borg further investigated this external email address, he found that it was a non-functioning or non-existent email address. In other words, the Applicant’s emails were being forwarded to nowhere under the redirection rule that had been set up; and
iv) a mass deletion (of unidentified and/or unparticularised) computer files on the Respondent’s computer system had occurred “around the same time” (i.e. sometime in the afternoon of 26 August 2024).
c) Mr Borg opened the software Cisco, which shows the date, time and location of remote logins using Duo, and found that:
i) the last remote login on the Applicant’s user account was 3:26PM on 26 August 2024 from IP address “XXX.14”;31
ii) the IP address “XXX.14” was the IP address that the Applicant had used to login remotely from home on 23 August 2024. The Applicant admitted that she had remotely logged in to the Respondent’s computer system using Duo from her laptop at home on 23 August 2024; and
iii) the Duo App verification prompt was sent to a mobile telephone with the IP address “XXX.95”32 and a phone number [withheld] on 26 August 2024. The mobile device used was a Samsung SM-G991B, that had a passcode and biometric fingerprint reader to open the device. The mobile telephone number and device are the Applicants personal mobile telephone number and device. The Applicant’s personal mobile telephone is the only registered device for authentication via the Duo App for her user account on the Respondent’s computer system.
d) Mr Borg was able to recover all of the emails and outlook calendar items deleted, and was also able to recover all the other files that had been deleted. He was unable to recover emails that had been forwarded under the redirection rule (between 26 and 29 August 2024) as those emails had been forwarded before they made their way into the Respondent’s computer system (i.e. these emails were never received by the Respondent’s computer system due to the redirection rule, which forwarded them onto the forwarding email address prior to them first arriving in the Respondent’s computer system).
Termination meeting – 2 September 2024
[31] On 2 September 2024, without prior notice, the Applicant was called into a meeting at the Respondent’s office with Ms Abood and Mr Agius, where allegations of her having been the author of the Deletion were put to her. The Applicant denied these allegations. Mr Borg was then called to immediately attend upon the Respondent’s office and participate in the meeting.33 Over the course of further discissions between Mr Agius, Ms Abood, and Mr Borg, the Applicant again denied allegations put to her that she remotely accessed (or logged into) the Respondent’s computer system on 26 August 2024, or was otherwise involved in or responsible for the Deletion.
[32] Ms Abood and Mr Agius formed the view that there was no other reasonable explanation which could explain the Deletion other than it having been undertaken by the Applicant.34 The Applicant’s employment was then terminated verbally, effective immediately. A written letter of termination, dated 2 September 2024, was thereafter issued to the Applicant, which (in part) reads:35
“It has been discovered that there has been a mass deletion of files from the system under your login, done remotely. This has resulted in the complete loss of emails and calendar entries. Furthermore, critical files were deleted […] We also have evidence that you were attempting but failing to forward/redirect emails outside of the organisation.
In addition, you have again failed to comply with policy and procedures. You have been formally warned about this performance issue with a formal written warning dated 23 July 2024. Failure to comply has been discovered on multiple occasions and caused compromise to the business.”36
[33] The Applicant was paid one week’s salary in lieu of notice, along with other statutory entitlements. She maintains that commission payments to which she is entitled and remain owed (or outstanding) to her have not been paid by the Respondent. Further, the Respondent has refused to pay these commissions despite the Applicant’s demands for it to do so.
Relevant law regarding unfair dismissal
[34] Section 385 of the Act qualifies a claim for unfair dismissal: “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.”
[35] The parties are not in dispute as to the following:
(a) the unfair dismissal application was made within the period required by s.394(2) of the Act.
(b) the Applicant is a person protected from unfair dismissal within the meaning of
s.382 of the Act;
(c) the Applicant was “dismissed” by the Respondent within the meaning of s.386 of the Act;
(d) the Small Business Fair Dismissal Code (as provided for in s.388 of the Act) does not apply; and
(e) the Applicant’s dismissal was not a case of genuine redundancy within the meaning of s.389 of the Act.
[36] I accept and make findings consistent with the foregoing position of the parties. It follows that the Applicant is an employee protected from unfair dismissal in respect of her employment with the Respondent, and has filed a valid unfair dismissal application.
Whether the Applicant’s dismissal was harsh, unjust, and/or unreasonable
[37] Section 387 of the Act provides what matters must be taken into account in determining whether a dismissal was harsh, unjust or unreasonable.
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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”.
[38] The terms “harsh”, unjust” and “unreasonable” are to be given their ordinary meaning.
[39] An Applicant (employee) carries the onus to prove that his or her dismissal was unfair.
[40] It is well settled that a statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give a matter(s) weight as a fundamental element in the decision- making process. However, as Kitto J noted in Rathborne v Abel37:
“Finally, to require that regard be had to a particular matter in making a discretionary judgment is not to require that that matter shall be allowed an actual influence upon the ultimate result. The matter is to be considered for such bearing as it may have upon the question to be decided, and it is to be allowed such weight (if any) as the tribunal thinks it ought to be given; but if the tribunal thinks it ought to have no weight, then no weight is required to be given to it: cf. Beresford v. Ward [1961] YR 632, at 634.”38
(my emphasis)
s.387(a) — Whether there was a valid reason for the Applicant’s dismissal which is related to her capacity or conduct
[41] An employer bears the persuasive onus of establishing or proving that there was a valid reason for an employee’s dismissal.39 The level of proof is on the balance of probabilities, at a reasonable level of satisfaction.40 The fact that serious allegations are made does not alter the position in civil proceedings that the level of proof is based upon the balance of probabilities.41
[42] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”, and should not be “capricious, fanciful, spiteful or prejudiced”.42 Further, 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.43
[43] Where a dismissal relates to conduct, the reason for the dismissal may be valid because the conduct occurred and justified dismissal. However, the reason may not be valid because the conduct did not occur, or it did occur but did not justify dismissal.44
[44] 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.45
[45] Given my findings at paragraphs [10] to [14] of this decision, I reject the Respondent’s contentions that it had a valid reason to dismiss the Applicant based upon any performance or conduct issues allegedly involving her.46
[46] The Applicant denies that she received or otherwise approved a Duo authentication message at any time on 26 August 2024, and/or that she performed the Deletion. The Applicant further says that she:
a) was drinking (scotch and cokes) with Ms Power from the time she got home in the afternoon, and then into the mid-evening, of 26 August 2024;
b) did not use or touch her personal mobile telephone (at all), or her laptop (at all), after she got home on 26 August 2024;
c) never had set-up a passcode, or used biometric fingerprint protection, on her personal mobile telephone device (in conflict with the Respondent’s evidence that this device had both forms of access protection on them); and
d) was told by the Respondent (in the meeting attended by Mr Borg on 2 September 2024) that the IP address of the remote authentication login (said to be accessed by her on Duo via her personal mobile telephone using Cisco records) showed the login or authentication location as Galston, New South Wales.47 It is not in dispute that the Applicant was not in Galston on 26 August 2024.
[47] It is trite that the allegations made against the Applicant (by the Respondent), as to the deletion of electronic materials on the Respondent’s computer system, are serious. Such allegations, to be proven, need to be supported by specific and cogent evidence (i.e. for findings (including by way of inference) to be made). The Applicant points out that the allegations made against her go against her own personal work ethic, and significantly impact upon her reputation (that she has worked hard to maintain over the many years that she has worked in the real estate industry).48 She completely denies that she deleted any emails, files or calendar entries as alleged by the Respondent, on 26 August 2024, or at any other time, or that she set-up a redirection rule in respect of her emails (again, on 26 August 2024, or at any other time). As to this latter issue, the Applicant’s evidence is that she does not even know how one might set up an email redirection rule (in Outlook or any other email program), and has never set one up.
[48] The short point in this case is that the evidence of Mr Borg, including his reports, do not contain the underlying evidence to support the conclusions made therein. Mr Borg’s evidence does not include any underlying information or data to show that the Deletion even occurred, let alone what was deleted, or what was recovered. Indeed, Mr Borg’s evidence does not even contain the alleged (specific) email address to which emails were apparently sent (pursuant to a purported self-forwarding or redirection rule). He also provides no evidence (e.g. screen shots) to prove that the Applicant’s Outlook Inbox or Outlook calendar entries were empty (deleted) when he viewed them on 29 August 2024, or that her Outlook emails were subject to a redirection rule.49 Significantly, the redirection rule that was set up, based upon Mr Borg’s own
evidence, was to a non-functioning or non-existent email address (i.e. even if the Applicant did set up the redirection rule, the emails were not being forwarded to an email address associated with the Applicant, or an email address that anyone could access, as on Mr Borg’s evidence, the email address did not exist).
[49] The Applicant freely and voluntarily offered up her laptop for examination (including forensic examination) to the Respondent at the 2 September 2024 meeting. The Respondent rejected this 50offer. To my mind, the Respondent in all of the circumstances of this case, and noting the serious allegations that the Applicant was being confronted with at the meeting on 2 September 2024, had no logical or rational explanation for rejecting the Applicant’s offer to examine her laptop.51 From the perspective of time, there is no evidence to suggest that the Respondent needed to have its allegations against the Applicant resolved on 2 September 2024, and not thereafter. From the perspective of the Respondent avoiding further exposure to the Applicant engaging in any ‘further’ unauthorised access to the Respondent’s computer system, the Applicant had already been locked out as a user of the Respondent’s computer system on 29 August 2024.
[50] As at 2 September 2024, I am unaware of any good reason as to why the Respondent could not have availed itself of the Applicant’s offer for her laptop to be examined. If the Applicant needed to be suspended from work pending the results of such examination, so be it, but a suspension is not a dismissal. In my view, even a cursory examination of the Applicant’s laptop might have definitively determined whether or not that laptop was used to remotely access the Respondent’s computer system on 26 August 2024. At the very least, such examination might identify the time that the laptop was turned on and/or off on 26 August 2024, or had been otherwise used for any purpose post 3pm on 26 August 2024 (noting that the Applicant’s evidence is that she did not access or otherwise use her laptop computer at all after she got home from her doctor’s visit on 26 August 2024. This is supported by the evidence of her sister, Ms Teresa Power, who resides with the Applicant and was physically present with the Applicant from 3:26pm on 26 August 2024 to 8:30/9:00pm that evening consuming scotch and coke in the lounge room)).
[51] As to the conclusions in Mr Borg’s evidence that the IP addresses (associated with the Duo authentication and remote laptop login that occurred on 26 August 2024) only point to the Applicant, I do not consider that I can be equally satisfied from the evidence52 that I can make such a finding.
[52] The Respondent relied upon legal correspondence in these proceedings to support a contention that the Applicant had a ‘motive’ to make the Deletion, as she was being pursued and threatened by her former employer with litigation (and claims for debt/damages) in relation to breaches of contract and equitable covenants.53 I do not consider it necessary in these proceedings for me to make any factual findings about these matters, or to make inferences as to the Applicant’s motives.
[53] The Respondent submits that the evidence of Mr Borg, along with the evidence of Mr Agius and Ms Abood, is sufficient to establish that the Applicant, on the balance of probabilities, conducted the Deletion. It further says that the Applicant’s poor work performance54 bolstered the validity of its overall reasons for dismissing the Applicant
(although Mr Agius, the decision-maker, stated in his evidence that he considered the Deletion alone enough for him to reasonably justify the Applicant’s dismissal).55 I do not agree.
[54] Having regard to the evidence, and my findings at paragraphs [17] to [18], [28] to [30], and [48] to [51], of this decision, I do not accept that the Respondent has proven on the balance of probabilities that the Applicant, by herself, or with another, conducted the Deletion on 26 August 2024, or on any other date, or that she otherwise set-up a redirection rule on her work emails. It follows that I find that the Respondent’s reasons for dismissing the Applicant (on the basis that she accessed the Respondent’s computer systems and deleted files), is not a sound, defensible or well-founded reason for her dismissal on 2 September 2024.
[55] Given that the Respondent did not have any valid (sound, defensible, or well founded) reason/s for dismissing the Applicant, this weighs in favour of a finding that the Applicant’s dismissal was harsh, unjust, and unreasonable (i.e. unfair).
s.387(b) – Whether the Applicant was notified of the valid reason
[56] Proper consideration of s.387(b) of the Act requires a finding to be made as to whether the Applicant “was notified of that reason” and given an opportunity to respond to same.
[57] Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a) of the Act.56 Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,57 and in explicit, plain and clear terms.58
[58] Given my finding that there was no valid reason for the Applicant’s dismissal, the criteria under s.387(b) of the Act does not arise for consideration.
s.387(c) – Whether the Applicant was given an opportunity to respond to any reason related to her capacity or conduct
[59] In order to be given an opportunity to respond for the purposes of s.387(c), the employee must be made aware of allegations concerning the employee’s conduct so as to enable them to respond to the allegations and must be given an opportunity to defend themselves. As Justice Moore has stated in Wadey v YMCA Canberra:59
“the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That… does not constitute an opportunity to defend.”60
[60] Whilst I accept that the Applicant had an opportunity to defend herself at the 2 September 2024 meeting, that opportunity was significantly limited. I do not accept that the Applicant was provided with proper notice of the allegations being made against her, or adequate time to properly prepare her responses.
[61] I have found there was no relevant valid reason for the Applicant’s dismissal. In Chubb Security Australia Pty Ltd v Thomas61, a Full Bench of the Australian Industrial Relations Commission (AIRC) said in respect of s.170CG of the pre-reform Workplace Relations Act 1996 (WR Act), as the WR Act was prior to the Work Choices amendments:
“Further, it is not, we think, possible to have regard to s.170CG(3)(b) until a finding has been made with regard to s.170CG(3)(a). Section 170CG(3)(b) refers to ‘that reason’; that is ’a valid reason’, being the term used in s.170CG(3)(a). If there is no valid reason, s.170CG(3)(b) has no application. Neither, we think, has s.170CG(3)(c).”62
[62] Sections 170CG(3)(a) to (c) of the pre-reform WR Act is relevantly similar to ss.387(a) to (c) of the Act. It follows that the criteria under s.387(c) of the Act does not arise for consideration in this case.
s.387(d) — Whether there was any unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to dismissal
[63] The Applicant was not offered the opportunity to bring a support person to the Termination Meeting.63
[64] As noted by a Full Bench of this Commission, “[t]he subsection is not concerned with whether or not the employee was informed that he or she could have a support person present”.64 I treat this criteria as a neutral consideration in this case.
s.387(e) — Whether the Applicant was warned about that unsatisfactory performance before her dismissal
[65] A warning for the purposes of s.387(e) of the Act must clearly identify:
• the areas of deficiency in the employee’s performance;
• the assistance or training that might be provided;
• the standards required; and
• a reasonable timeframe within which the employee is required to meet such standards.65
[66] In addition, the warning must “make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.”66 In order to constitute a warning for the purposes of s.387(e), it is not sufficient for the employer merely to exhort their employee to improve their performance.67
[67] Given that the 23 July Warning is so deficient and lacking in both detail and substance, I place no weight upon it in determining whether or not the Applicant’s dismissal was harsh, unjust or unreasonable. I thus treat s.387(e) of the Act as a neutral consideration in this case.
The degree to which the size of the Respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal (s.387(f)); and 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 (s.387(g))
[68] The Respondent does not employ dedicated human resources management specialists. There is no evidence to suggest that the size of the Respondent’s enterprise impacted upon the procedures it followed in effecting the Applicant’s dismissal. Neither party put forward any substantive or relevant submissions that go directly to either of the criteria under ss.387(f) and
(g) of the Act.
[69] Whilst the small size of the Respondent’s business, and the absence of dedicated human resource management specialists or expertise in the Respondent’s employ, detrimentally impacted upon the procedures it followed in effecting the Applicant’s dismissal, I consider it appropriate to treat both of the criteria under ss.387(f) and (g) as neutral considerations in this case.
s.387(h) – Any other matters that the Commission considers relevant
[70] Procedural fairness is one factor that the Commission may take into consideration under s.387(h) of the Act when deciding if a dismissal has been harsh, unjust or unreasonable. It concerns the decision-making process followed, or the steps taken by a decision maker, rather than the actual decision itself.68 Ordinarily, procedural fairness requires that an allegation be put to a person, and that they be given a reasonable opportunity to prepare their response (or go away and prepare their response), before a decision is made.69 Further, although s.387(d) of the Act does not require an employer to inform an employee that they may have a support person present, that matter may be relevant in all of the circumstances (and taken into account under s.387(h)).70 In my view, there was an absence of substantive procedural fairness in effecting the Applicant’s dismissal in this case, and in issuing her with the 23 July Warning. This weighs in favour of a finding that the Applicant’s dismissal was harsh, unjust and/or unreasonable.
[71] The Respondent has gone to significant lengths in these proceedings to justify the Applicant’s dismissal on the basis that the Applicant was a poor performing or otherwise unreliable employee. I do not accept on the evidence before that there is any real substance to these assertions. Indeed, the contemporaneous documentary evidence points to the contrary. Relevantly, I do not accept that in the circumstances of this case, any of the Respondent’s assertions as to the Applicant’s performance and conduct weigh against a finding that the Applicant’s dismissal was harsh, unjust or unreasonable.
Was the Applicant’s dismissal unfair?
[72] I have made findings in relation to each of the criterion specified under s.387 of the Act (as relevant). I have also considered and given due weight to each of the criterion therein as a fundamental element in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.71
[73] In relation to the criterion set out under s.387 of the Act, I have found that:
(a) the absence of a valid reason for the Applicant’s dismissal weighs in favour of a finding that the Applicant’s dismissal was harsh, unjust and unreasonable;
(b) the absence of a procedural fairness in effecting the Applicant’s dismissal weighs in favour of a finding that the Applicant’s dismissal was harsh, unjust and unreasonable; and
(c) other relevant criterion are either not relevant, or neutral considerations.
[74] In view of the findings and conclusions set out in this decision, I find that the Applicant’s dismissal was harsh, unjust and unreasonable (i.e. unfair).
Remedy
[75] Being satisfied that the Applicant:
(a) has made a valid application for an order granting a remedy under s.394 of the Act;
(b) was a person protected from unfair dismissal; and
(c) was unfairly dismissed within the meaning of s.385 of the FW Act;
I may, subject to the Act, order the reinstatement of the Applicant, or the payment of compensation to her.
[76] Under s.390(3) of the Act, I must not order the payment of compensation to the Applicant unless:
a. I am satisfied that his or her reinstatement is inappropriate; and
b. I consider that an order for payment of compensation is appropriate in all the circumstances of the case.
[77] In all of the circumstances, I am satisfied that the reinstatement of the Applicant to the employment of the Respondent is inappropriate. The Applicant does not seek reinstatement, and the Respondent does not want her back in its workplace.
[78] As I have found that reinstatement is inappropriate, I must now consider whether an order for compensation is appropriate under s.390(3)(b) of the Act. A Full Bench of the Commission 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, and whether an applicant has suffered financial loss may be a relevant consideration.72
[79] I am satisfied that the Applicant has suffered a financial loss, and having considered all of the circumstances of this case, it is appropriate to order her compensation for her unfair dismissal. My reasons and assessment of the amount to be awarded to the Applicant follow below.
[80] The long-established approach to assessing compensation in unfair dismissal matters was set out in Sprigg v Paul Licensed Festival Supermarket (Sprigg),73 which the Full Bench of this Commission has since applied under the current Act.74
[81] I summarise the Sprigg formula as follows:
i) estimate the remuneration that employee would have received if the employer had not terminated the employment unfairly;
ii) deduct monies earned since termination;
iii) discount the remaining amount for contingencies; and
iv) calculate the impact of taxation.
[82] While Sprigg’s case sets out the method, I must nevertheless take account of all the circumstances of the case, and the specific criteria listed under s.392 of the Act.75
[83] The overall consideration is that the level of compensation must be appropriate (i.e. neither clearly excessive, nor clearly inadequate) having regard to all of the circumstances of the case.76
[84] Section 392(2)-(6) of the Act, reads:
“(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) The total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period–the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
Section 392(2)(a) – Viability
[85] The Respondent has not filed any evidence regarding this factor. I am not persuaded that my consideration of this factor means that I should not make an order for compensation, or reduce any amount of compensation to be ordered.
Section 392(2)(b) – Length of service
[86] The Applicant was employed by the Respondent for around 10 months. This is a relatively short period of time, however, in the circumstances of this case, I consider that the
Applicant’s length of service does not support reducing or increasing any amount of compensation to be ordered.
Section 392(2)(c) – Remuneration the person would have received
[87] As stated by a majority of the Full Court of the Federal Court in the He v Lewin77 (and as quoted in Zeng v Conrock Australia Pty Limited):
“[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.”
[88] I consider that the Applicant, but for her being unfairly dismissed, would have remained in the Respondent’s employ until the end of 2024, noting that she had planned to resign (provide notice) in December 2024, and travel for 12 months from January 2025.78
Section 392(2)(d) – Efforts to mitigate loss
[89] The Applicant’s evidence as to her attempts to mitigate her loss identify that she obtained alternative employment on 23 October 2024.79 No evidence was put before me as to the income received by the Applicant in her new employment. I proceed on the basis that her income in her new employment was at least equal to her income with the Respondent.
Section 392(2)(e) & (f) – Remuneration and income earned
[90] The Respondent paid the Applicant one week’s pay in lieu of notice. This amount is to be deducted from any ultimate compensation amount awarded to the Applicant.
Section 392(2)(g) – Any other matter
[91] I am not aware of any other matter to be considered in determining the amount of compensation to be awarded to the Applicant.
Section 392(3) – Contribution to dismissal by misconduct not relevant
[92] I do not find that any misconduct by the Applicant contributed to her dismissal. I will not reduce any compensation awarded to the Applicant on the basis of misconduct.
Section 392(4) – Shock, distress etc disregarded
[93] I have not ordered an amount of compensation for shock and distress given that I am not permitted to do so.
Taxation
[94] Consistent with prior decisions,80 I propose to order payment of a gross (i.e. before tax) amount of compensation, to be taxed as income according to law. I therefore take into account issues of taxation, but leave such issues to applicable taxation legislation.
Section 392(5) Compensation Cap
[95] At the time of her dismissal, the Applicant’s annual salary was $80,000 per annum (inclusive of superannuation).81
[96] Under s.392(5) of the Act, the compensation cap is the lesser of 26 weeks of the Applicant’s pay, or half the amount of the high income threshold.
[97] I am unable to award the Applicant any compensation in excess of 26 weeks of her annual salary (i.e. $40,000). This amount is below the high income threshold.
Conclusion on Remedy
[98] Having weighed each of the considerations under section 392, I find it appropriate to grant the Applicant a compensation amount that is equivalent to the income that she would have received had she not been unfairly dismissed by the Respondent, being the time between her termination on 2 September 2024, and up until 23 October 2024 (being the date that she commenced her new employment), less the one week’s notice period paid to her by the Respondent. I make no deduction for contingencies. I take this period of time to be 6 weeks, or the gross sum of $9.230.82 (i.e. 6 x $1,538.47 per week).
[99] In all the circumstances, my evaluative assessment is that the appropriate remedy in this matter is an order compensating the Applicant for her unfair dismissal in the gross amount of
$9,230.82.
[100] Section 381(2) of the Act is a significant overarching object of Part 3-2 of the Act. It is expressed as follows:
“381 Object of this Part
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was used by Sheldon J in Re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”
[101] In my judgment, the outcome in this case is consistent with the object of Part 3-2 of the Act of providing a ‘fair go all round’ to both the Applicant (as employee) and the Respondent (as employer).
[102] I will issue an order that the Respondent pay to the Applicant the sum of $9,230.82 gross, taxed in accordance with law, payable within 13 days. An Order [PR785853] to that effect will be issued contemporaneously with, and separately to, this decision.”
Pike v Agius Property Group Pty Ltd [2025] FWC 113 delivered 4 April 2025 per Boyce DP