This is an interesting decision of the Fair Work Commission in a case dealing with the application of the Small Business Fair Dismissal Code and the issue of genuine redundancy in the unfair dismissal jurisdiction.
“This is a decision about whether Mr Belal Allouche should receive an unfair dismissal
remedy from his former employer, Skyco Group Pty Ltd.
[2] Section 385 of the Fair Work Act 2009 (Cth) provides that a person has been unfairly
dismissed if:
(a) The person has been dismissed;
(b) The dismissal was harsh, unjust or unreasonable;
(c) The dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) The dismissal was not a case of genuine redundancy.
[3] Skyco Group employed Mr Allouche on a full-time basis as a concreter from around
October 2022. There is no dispute that he has completed the minimum employment period.
There is also no dispute that Mr Allouche earned less than the high-income threshold. I am
therefore satisfied that Mr Allouche is a person who is protected from unfair dismissal.
[4] Mr Allouche asserts that he was dismissed by telephone on Thursday 6 November
2025; Skyco Group say that he was dismissed after this date when Mr Sandrow Yalda,
director of Skyco Group, decided to stop making wage payments to Mr Allouche. I am
satisfied that Mr Allouche was dismissed and the dismissal took effect when Skyco Group
stopped making wage payments to Mr Allouche on around 13 November 2025. Mr Allouche
applied for an unfair dismissal remedy on 18 November 2025, within 21 days after the
dismissal took effect.
[2026] FWC 2050
DECISION
[2026] FWC 2050
2
[5] Skyco Group is a small business employer. Skyco Group assert that they complied
with the Small Business Fair Dismissal Code when dismissing Mr Allouche.
[6] I am satisfied that this is not a case of genuine redundancy. The employer’s reason for
dismissing Mr Allouche related to his conduct.
[7] So, the issues to be determined in this matter are:
• Whether Skyco Group’s dismissal of Mr Allouche was consistent with the Code; and
• If the dismissal was not consistent with the Code, whether it was harsh, unjust or
unreasonable.
[8] I conducted a determinative conference on 7 May 2026. Mr Allouche gave evidence
on his own behalf and filed materials, including recordings of relevant conversations. Skyco
Group did not object to Mr Allouche’s reliance on the recordings, despite them not being
aware at the time of the conversations that the conversations were being recorded. Mr
Sandrow Yalda, director of Skyco Group, and Mr Julian Matricciani, Project Manager, gave
evidence on behalf of the respondent. Skyco Group also filed witness statements made by Mr
Jordan Cirianni, foreman; Mr Daniel Trajkovski, employee; and Mr Steven Yalda, Mr
Sandrow Yalda’s brother. But as Mr Cirianni, Mr Trajkovski and Mr Steven Yalda did not
attend the determinative conference to confirm their statements, I do not give those statements
much weight.
[9] I have considered the materials filed, including the recordings, the evidence given, and
submissions (arguments) made during the determinative conference. I am satisfied that the
dismissal was unfair, but I do not order Skyco Group to make any payment of compensation
to Mr Allouche. My reasons follow.
Background Facts
[10] Mr Allouche began employment with Skyco Group in October 2022.
[11] On Wednesday 5 November 2025, Mr Allouche attended work. Mr Allouche had an
altercation with Mr Jordan Cirianni, Project Manager. Mr Allouche had asked for assistance
loading a work truck. Mr Allouche says that Mr Cirianni disrespectfully blamed him for the
truck not having the appropriate equipment. Mr Allouche said he had recently returned from
annual leave and that day was the first day he worked with the trucks since his return. Mr
Allouche does not deny that he had an altercation with Mr Cirianni. He said that he was fiery
but only standing up for himself. His view was that Mr Cirianni was disrespecting him and
unfairly blaming him. Mr Cirianni said to Mr Allouche that Mr Allouche had to listen to him.
To this, Mr Allouche responded
I don’t have to listen to you. This is not a dictatorship.
[12] Mr Allouche then went to a different worksite. He later contacted Mr Yalda and
informed Mr Yalda of the altercation with Mr Cirianni, saying that Mr Cirianni should not
have spoken to him in a disrespectful way.
[2026] FWC 2050
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[13] Later that afternoon, Mr Yalda contacted Mr Cirianni and Mr Daniel Trajkovski, a
work colleague of Mr Allouche’s, to find out what had occurred. Mr Yalda formed the view,
after speaking with Mr Cirianni and Mr Trajkovski, that Mr Allouche had not been entirely
truthful about what had happened and that Mr Allouche had not been blameless in the
heatedness of the exchange. He simply informed Mr Allouche and Mr Cirianni that they had
to sort it out themselves, were grown men and had to get along. Mr Yalda thought that both
would “get over it” after a couple of days and moved on.
[14] On 6 November 2025, Mr Allouche says he got a phone call from Mr Cirianni towards
the end of the day, in which Mr Cirianni dismissed him. He then saw updates on his phone
that indicted his future scheduled work was cancelled. Mr Allouche then went to the office to
speak with Mr Yalda.
[15] The parties disagree about the details of what occurred next.
[16] Mr Yalda was in the office with Mr Julian Matricciani, another Project Manager. Both
Mr Yalda and Mr Matricciani say that Mr Allouche came into the office, yelling and swearing
about Mr Cirianni. They say that Mr Allouche got very close to Mr Yalda, and that Mr
Allouche repeatedly said words like
You had that fucking dog call me.
Do I still have a fucking job?
I’ll smash his head in. I’ll kick that fucking dog’s head in.
I should have fucking smashed you years ago.
[17] Mr Yalda and Mr Matricciani say Mr Allouche also threatened Mr Trajkovski, asking
where he was and saying that he would wait for him. They say that they were so concerned,
they contacted Mr Trajkovski and initially asked him to drive around the block rather than
coming back to the office. As Mr Allouche did not leave, they then informed Mr Trajkovski
to take the work vehicle home.
[18] Mr Yalda says he did say to Mr Allouche
There’s no way you got a job at this point.
[19] Mr Matricciani says that they told Mr Allouche to go home and that they would sort it
out tomorrow.
[20] Mr Yalda and Mr Matricciani say that when Mr Allouche left, he punched a
whiteboard on his way out, causing it to dent.
[21] After that, Mr Matricciani says that Mr Allouche sat in his car ‘huffing and puffing.’
Mr Matricciani came and spoke with Mr Allouche to calm him down. After about an hour, Mr
Allouche eventually went home.
[2026] FWC 2050
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[22] Mr Allouche does not deny that he went into the office and that he was angry about
Mr Cirianni calling him to tell him he did not have a job anymore. He was upset because he
was recently married and his wife was about to have a child. He was also upset because he did
not think Mr Cirianni could dismiss him, nor that he should have done it by telephone. He
says he did not, however, make any violent threats. He admits to being fiery, but he says he
never said that he would smash anyone. He agrees that he pushed the whiteboard on his way
out, but that it was not a punch. He also agrees that he sat in his vehicle for a while before
leaving, but to calm down rather than to wait for Mr Trajkovski, and that he only remained for
such a long time because Mr Matricciani came and spoke with him.
[23] I prefer Mr Yalda and Mr Matricciani’s evidence to Mr Allouche’s. Mr Allouche does
not deny the key elements of what occurred; that is, he went to the office angry and upset and
to confront Mr Yalda about the loss of his job. He admits to having a temper and being angry.
He admits to pushing the whiteboard when he left the office. I find that Mr Allouche punched
the whiteboard.
[24] After that, Mr Yalda says he continued to pay Mr Allouche, and they had further
conversations in the days that followed. Those conversations related to whether Mr Allouche
still had a job with Skyco Group.
[25] The further conversations were recorded by Mr Allouche and provided to me as part of
his evidence. The contents of the recordings do not assist Mr Allouche. In the conversations,
Mr Allouche continues to be aggrieved. Both parties swear while speaking with each other. In
one of the conversations, Mr Allouche says (in relation to Mr Cirianni):
He’s a disrespectful cunt, swears at everyone, People aren’t gonna cop it; I’m not gonna cop it.
I can be violent; I restrained myself from being violent. I don’t want to punch on to people.
But he is a fucking disrespectful cunt.
[26] Mr Allouche also said
Before I lost my cool, I asked you 3 times do I still have a job here.
[27] It is clear to me that Mr Allouche was aware he had lost his temper during the
conversation on 6 November 2025.
[28] It is also clear that Mr Yalda does not agree that Mr Cirianni was permitted to dismiss
Mr Allouche. He says
I agree with you. What a fucking stupid thing. I told you last week, you have to work out how
to get along with him. You think I don’t think you don’t want to come back? You think I
would just let him say to you, “you’re sacked see you later?” I’m telling you what he did was
wrong. But how are you gonna work here, bro? I’m not gonna dismiss you and not pay you.
[29] Mr Yalda said that he could not have Mr Allouche return to work because other
workers and their spouses were contacting him, worried about Mr Allouche’s threats of
violence. Mr Yalda said that he initially intended to keep paying Mr Allouche until Mr
Allouche found other work. However, Mr Allouche contacted Mr Matricciani and said that he
would be taking the matter to ‘Fair Work’ and VCAT and said something like he was “going
[2026] FWC 2050
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to fuck [Mr Yalda] up”. After that, he only paid Mr Allouche for a week and then stopped
paying him. Mr Yalda says he then did not hear from Mr Allouche until this application was
made.
The Small Business Fair Dismissal Code
[30] The Small Business Fair Dismissal Code is a legislative instrument made under s 388
of the Act. Section 388(2) of the Act provides:
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.
[31] The Code’s Explanatory Memorandum says:
The Code recognises the special circumstances of small business employers by providing
separate, simple rules for small business employers to follow when dismissing an employee.
[32] The Code itself is a one-page document that has two streams:
(1) circumstances relating to summary dismissal, where the employer is not required to give a
reason, notice or warnings; and
(2) other dismissals for valid reasons relating to conduct or capacity to do the job.
[33] In relation to summary dismissal, the Code provides:
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.
[34] In relation to dismissals other than summary dismissals, the Code provides:
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is
at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct
or capacity to do the job.
[2026] FWC 2050
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The employee must be warned verbally or preferably in writing, that he or she risks being
dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the
warning and give the employee a reasonable chance to rectify the problem, having regard to
the employee’s response. Rectifying the problem might involve the employer providing
additional training and ensuring the employee knows the employer’s job expectations.
[35] The Code also deals with procedural matters (having a person assist and providing
evidence of warnings to the Commission).
[36] I am not satisfied that Skyco Group complied with the Code when they dismissed Mr
Allouche. They did not dismiss Mr Allouche summarily, so the first stream is not relevant. In
relation to the second stream, Skyco Group did not warn Mr Allouche that he was at risk of
being dismissed for a reason related to his conduct or capacity. As Skyco Group did not warn
Mr Allouche (orally or in writing), they cannot have complied with the Code.
Harsh, Unjust or Unreasonable
[37] As I am not satisfied that Skyco Group’s dismissal of Mr Allouche complied with the
Small Business Fair Dismissal Code, I now deal with whether the dismissal was harsh, unjust
or unreasonable having regard to s 387 of the Act.
[38] In relation to s 387(a) – valid reason, I am satisfied that Skyco Group had a valid
reason to dismiss Mr Allouche. I am satisfied that Mr Allouche was angry during the meeting
on 6 November 2025, that he yelled and got close to Mr Yalda and punched the whiteboard
when he left. I am satisfied that Mr Allouche’s conduct on 6 November 2025 and afterwards
was threatening and intimidating, and that it caused Mr Yalda, employees of Skyco Group
and their spouses to be fearful. Mr Allouche’s conduct was not conduct that is acceptable in a
workplace, even if he had a grievance. I accept that Mr Yalda could not have Mr Allouche
return to the workplace.
[39] However, as found above, Skyco Group never warned Mr Allouche that he risked
being dismissed because of that conduct, and so they did not notify him, and he did not have
any opportunity to respond to the reason for dismissal. Sections 387(b) –notification and
387(c) –opportunity to respond therefore weigh in favour of a finding that the dismissal was
unfair.
[40] Section 387(d) – unreasonable refusal of a support person is not relevant as there
were no discussions relating to the dismissal. Section 387(e) is not relevant as the dismissal
did not relate to performance.
[41] I have considered sections 387(f) and (g) being the degree to which the size of the
employer’s business (which is small) and the lack of dedicated human resource
management specialists or expertise impacted the procedures followed in effecting the
dismissal. No process was followed at all; and I am not satisfied that the size of the business
and its lack of human resources knowledge is a matter that weighs against a finding that the
[2026] FWC 2050
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dismissal was unfair. Some attempt to provide procedural fairness to the applicant should
have been made; none was.
[42] I have also considered s 387(h) other matters raised by Mr Allouche, being the
manner of the dismissal (by telephone and effected by someone without the authority to do
so) and his personal circumstances. Mr Allouche is mistaken that the telephone call dismissed
him. I understand that he is aggrieved by it, but I do not consider it relevant. Skyco dismissed
Mr Allouche about a week after that telephone call, when they stopped paying him after he
seemed unwilling to resolve matters with Mr Cirianni. Skyco Group were aware of Mr
Allouche’s circumstances, and I am of the view that the dismissal was harsh.
[43] Mr Allouche also raised that he was dismissed because he said that he would take
Skyco Group to ‘Fair Work’ or commence VCAT action. Mr Yalda’s clear evidence was that
when he was informed of this, he understood that Mr Allouche did not intend to try to work
things out with Mr Cirianni and took the statement as a further threat to the business. While it
is not lawful to dismiss a person for exercising their workplace rights, including in relation to
making applications for unfair dismissal remedy, Mr Allouche’s words (that he was going to
fuck [Mr Yalda] up) confirmed for Mr Yalda that he should finally remove Mr Allouche from
the workplace. This reinforces the valid reason Skyco Group had for dismissing Mr Allouche;
it does not weigh in favour of a finding that the dismissal was unfair.
Conclusion regarding Harsh, Unjust or Unreasonable
[44] Although I am satisfied that Skyco Group had a valid reason for dismissing Mr
Allouche, in weighing all the factors in s 387, I consider the dismissal to be unfair. The
dismissal was unreasonable as Skyco Group failed to notify Mr Allouche of its reasons for
dismissal and failed to give him an opportunity to respond to those reasons. I also consider
that the dismissal was harsh considering Mr Allouche’s personal circumstances, of which
Skyco Group were aware.
Remedy
[45] As I have found Mr Allouche’s dismissal to be unfair, I may order a remedy.
Reinstatement is not appropriate
[46] I am of the view that reinstatement would not be appropriate in this case. Mr Allouche
did not seek reinstatement; and further gave evidence that he obtained new employment
which started on 6 February 2026. Further, the valid reason for his dismissal was threats of
violence against individuals who remain employees of Skyco Group. In these circumstances,
reinstatement would not be appropriate.
Is an order for compensation appropriate in all the circumstances?
[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 whether to order a remedy in a case where a dismissal has been found to be unfair
[2026] FWC 2050
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remains a discretionary one, (Nguyen v Vietnamese Community in Australia [2014] FWCFB
7198 at [9]) and that 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 in all the circumstances of this case that it is appropriate to order
compensation, but that the compensation amount is nil. This is because the employer did have
a valid reason, and if they had followed a fair process to dismiss Mr Allouche I expect that it
would take no more than a week, given the circumstances, the nature of the conduct and the
nature of the business, to have warned Mr Allouche, listened to his reasons and to reach a
conclusion that dismissal was an appropriate outcome. However, I am of the view that Mr
Allouche’s conduct contributed to his dismissal and therefore reduce the amount of
compensation to nil.
Conclusion
[49] I am satisfied that Skyco Group’s dismissal of Mr Belal Allouche was unfair.
Although I consider it appropriate to order compensation, the compensation amount is nil due
to Mr Allouche’s conduct contributing to the dismissal. There is no need to make an order in
these circumstances.” Mr Belal Allouche v Skyco Group Pty Ltd [2026] FWC