Unfair dismissal, serious misconduct and Small Business

This is an extract from a recent unfair dismissal case which deals with the legal and factual implications of the Small Business Fair Dismissal Code to the termination of the employment of an employee for serious misconduct.

“Did the Respondent comply with the Small Business Fair Dismissal Code in relation to the dismissal?

[50] I now turn to consider whether the Respondent complied with the Small Business Fair Dismissal Code (the Code). Section 388 of the Act provides the following in respect of the Code:

“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.”

[51] Section 23 of the Act provides a definition of a “small business employer” for the purpose of the Act. Relevantly, s 23(1) of the Act provides that a “national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time”.

Was the dismissal consistent with the Small Business Fair Dismissal Code – Summary Dismissal?

[52] The Code applies to small business employers with less than 15 employees. A person is not unfairly dismissed if the dismissal is consistent with the Code and immediately before dismissal or at the time notice of the dismissal is given, whichever is earlier, the employer is a small business employer. I have already found that the Respondent was a small business employer at the relevant time of 25 August 2021.

[53] The Code declared by the Minister pursuant to s 388(1) of the Act relevantly provides as follows:

“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.

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.

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.

Procedural matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[54] In Pinawin v Domingo 63, the Full Bench considered whether, in the context of a summary dismissal under the Code, the Commission had to be satisfied that the serious misconduct which was the basis for the dismissal actually occurred:

“[29] … There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a 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 the 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. The circumstances include the experience and resources of the small business employer concerned.

[38] Normally in order to hold a belief on reasonable grounds it will be necessary to have a discussion with the employee about the perceived serious misconduct and pay regard to the explanations and views given by the employee. We are concerned in this case that no discussions took place about the implications of Mr Domingo’s conduct for his future employment. However this is a very unusual case. The employer was very small. The owners knew Mr Domingo well …”

[55] Another Full Bench of the Commission examined the summary dismissal section of the Code in detail in Ryman v Thrash Pty Ltd 64 and concluded as follows:

“[41] In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider that the “Summary dismissal” section of the Code operates the following way:

If a small business employer has dismissed an employee without notice – that is, with immediate effect – on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the “Summary dismissal” section of the Code. All other types of dismissals by small business employers are to be considered under the “Other dismissal” section of the Code.

In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectivity speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.”

[56] While there is no rule of law that defines the degree of misconduct which would justify dismissal without notice, the identified “touchstone” is that of whether the conduct was of such a grave nature as to be repugnant to the employment relationship 65. The Full Bench in Cole v Roy Hill Station Pty Limited relevantly summarised the principles as follows;

“[95] Serious misconduct as understood in the Code, takes its meaning from Regulation 1.07 and in doing so includes wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the employment contract. The notion of wilful or deliberate behaviour amounting to serious misconduct is conduct which strikes at the heart of the employment relationship. That notion has been considered in several well-known authorities, which were well traversed in the decision of Emma Horan v Tren Trading Pty Ltd t/a Dubbo Early Learning Centre. I do not intend to repeat the authorities at length, but rely simply on the precepts that to justify summary dismissal a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions, and such misconduct must at least have the quality that it is ‘wilful’: it connotes a deliberate flouting of the essential contractual conditions.” 66 (citations omitted)

[57] It follows from the above that there are a number of a matters that I must consider in determining whether the Applicant’s dismissal was consistent with the Code. Those matters are;

(1) Was the Applicant’s dismissal a summary dismissal under the Code?

(2) Did the Respondent believe at the time of the Applicant’s dismissal that the Applicant’s conduct was sufficiently serious to justify immediate dismissal?

(3) Was the Respondent’s belief based on reasonable grounds?

Was the Applicant’s dismissal a summary dismissal under the Code?

[58] As set out above at [36], the Respondent confirmed in the Termination Letter dated 25 August 2021 that it had considered the Applicant’s conduct and determined that it constituted serious misconduct. It also determined that the Applicant would be dismissed immediately without notice or payment in lieu of notice. The Respondent relevantly stated in the Termination Letter that;

“Amplified has considered your response and has subsequently formed the view that your conduct constitutes serious misconduct. You publicly disclosed commercially sensitive information including Amplified’s intellectual property (in part for your own personal benefit) in direct contravention of a wide range of fundamental obligations that you owe to Amplified under the Employment Contract and the CIIAA.”

[59] I am satisfied based on the Termination Letter that the Respondent dismissed the Applicant on 25 August with immediate effect on the grounds that he had engaged in serious misconduct. It follows that the “Summary dismissal” section of the Code is applicable, and the “Other dismissal” section of the Code is not relevant to my consideration of the Applicant’s dismissal.

Did the Respondent believe at the time of the Applicant’s dismissal that the Applicant’s conduct was sufficiently serious to justify immediate dismissal?

[60] Mr Davis for the Respondent gave evidence as to his having discovered the on-line posting by the Applicant of the AcmeDS starter kit and details of the Respondent’s unreleased “Teams and Sharing” product on 18 August 2021. He also gave evidence as to the steps subsequently taken by the Respondent to investigate the conduct and to obtain advice both from IP counsel and employment lawyers between 20-24 August 2021. The co-owners of the Respondent reviewed the AcmeDS material, concluded that it was a copy or a derivative of the AmplifiedDS system and also concluded that the Applicant had publicly disclosed unreleased details of the ‘Teams and Sharing’ product. This led them to determine that the Respondents IP had been disclosed publicly without its approval, that being in breach of both the Applicant’s Employment Agreement and CIIAA.

[61] The Applicant contends that the delay between when AcmeDS was discovered by the Respondent on the 18 August and 25 August 2021 when the Applicant was confronted with the alleged misconduct demonstrates that the conduct could not have been viewed as sufficiently serious to justify immediate dismissal. He further submits that if the conduct was so serious as to warrant immediate dismissal, the Respondent ought to have acted more urgently to address the claimed threat posed to its business by the Applicant. The Applicant contends that had the Respondent regarded the Applicant’s conduct as such a serious threat to its business it could have suspended him immediately, cut off his access to the Respondent’s IT systems and undertaken a proper investigation without placing the Respondent’s business at further risk. The Applicant also submits that the Respondent delayed the disciplinary process while the Applicant was finalising an important project for the Respondent, that delay in action again speaking to the overstatement of the seriousness of the conduct claimed by the Respondent.

[62] The Respondent explained the delay as being due to the time required to carry out the investigation and obtain appropriate advice. The Respondent also submits that it was concerned that merely suspending the Applicant may have risked further damage to the business but in any case, the Respondent could not reverse the damage already done by the online posting of the AcmeDS starter kit. As to the allegation that the Respondent deliberately delayed acting on the discovery of the on-line posting of the AcmeDS starter kit, the Respondent rejects that submission and notes that the product launch on which the Applicant was working on during August 2021 was in any case delayed to beyond the date of the Applicant’s dismissal and in these circumstances could not have been a factor in the timing of the Applicant’s dismissal. The Respondent also highlighted that the cost of obtaining external legal advice was greater than the notice period payment that may have been otherwise paid if they had judged the conduct less serious.

[63] I am satisfied on the evidence of the co-owners of the Respondent, Mr Davis and Mr Grainger, that at the time of the Applicant’s dismissal the Respondent held a subjective belief that the conduct of the Applicant was serious and that it justified immediate dismissal. I have reached this conclusion for the reasons set out below.

[64] Firstly, I found Mr Davis and Mr Grainger to both be credible in their evidence as to the seriousness with which they viewed the conduct and their desire to thoroughly investigate the conduct and obtain external advice before raising the matter with the Applicant. They were consistent and open in their responses and made appropriate concessions during cross examination. I also note that the period in question included only 4 clear working days between the discovery of AcmeDS by Mr Davis on the evening of Saturday 18 August 2021 and the Applicant being requested to attend the Zoom meeting on the morning of the 25 August 2021.

[65] Secondly, I am not persuaded by the Applicant’s submission that the dismissal was delayed by the Respondent simply to allow the Applicant to complete an important project. Significantly, the Applicant himself conceded in his evidence that the project had been delayed for a number of reasons and while close to completion, was not finalised at the time of his dismissal. In these circumstances I am not persuaded that the delay from 18 to 25 August 2021 was attributable to the Respondent seeking to benefit from the Applicant’s work before dismissing him.

[66] Thirdly, I accept that the desire of the Respondent to gather relevant information and advice before confronting the Applicant was reasonable in circumstances where the Respondent was a small business and by its own admission was unsophisticated and lacking knowledge in employment law. I am satisfied that the delay between the discovery of the alleged misconduct and action taken to address it was not an inordinate delay that would otherwise call into question whether the Respondent genuinely believed the conduct was sufficiently serious to justify immediate dismissal.

[67] Finally, it was uncontested that the Respondent was a small ‘start-up’ company and did not have significant financial reserves. The Applicant himself perceived that the Respondent had been struggling financially. In these circumstances I accept it would have been ill-advised for the Respondent to spend scarce financial resources on obtaining external legal advice if they did not regard the conduct as sufficiently serious to justify immediate dismissal. The fact the Respondent sought external legal advice serves to reinforce in my view, the genuine belief it held regarding the seriousness of the Applicant’s conduct.

Was the Respondent’s belief based on reasonable grounds?

[68] There are two key elements to the Respondent’s belief that the Applicant’s conduct was sufficiently serious as to justify immediate dismissal. Firstly, that the Applicant released Acme DS on-line, which in the Respondent’s view was a copy or a derivative of AmplifiedDS and as such disclosed confidential design system information and IP of the Respondent. Secondly, that the Applicant disclosed confidential features of the unreleased ‘Teams and Sharing’ product. Both actions were, according to the Respondent, in breach of the Applicant’s obligations under his Employment Agreement and the CIIAA.

[69] Turning to the second element first. The Applicant sought to downplay the significance of the unauthorised disclosure of the ‘Teams and Sharing’ product features and placed weight on the Respondent’s prior promotion of the ‘Teams and Sharing’ product in marketing information which was in the public domain 67. That reliance is with respect, misconceived. The marketing information only states that the product is ‘coming soon’ and contains no details of the features of the new product. The Applicant’s evidence that the product was also discussed with customers in advance of his public disclosure of product features also takes his submission no further. The Applicant was bound by clause 3(b) of his CIIAA which includes the obligation of maintaining the confidentiality of customer communication.

[70] The Applicant was aware that the ‘Teams and Sharing’ product was subject to a particular development and release timetable. He specifically asked Mr Davis about that timetable on 10 June 2021 in response to which he was directed to the ’Amplified board’ where he could locate the schedule. The schedule indicated the planned release of the new product in late August 2021. The Applicant conceded during his evidence that the screen shots and animation he released were not in the public domain at the time of posting and further, that release of company information on social media postings was ‘generally’ discussed before posting. His explanation that he believed he did not have to seek approval prior to disclosing details of the unreleased ‘Teams and Sharing’ product was unsatisfactory in circumstances where he was specifically aware of the timetable of the release of the product.

[71] While I accept that the Applicant in his role may have been interested in promoting the Respondent, he was nonetheless obliged to respect his obligations under the Employment Agreement and the CIIAA not to disclose confidential information without express approval of the Respondent. The release was in specific breach of clause 3(a) of the CIAA.

[72] Turning now to the release of the AcmeDS starter kit by the Applicant, the Respondent submits that any reasonable person would see a striking similarity between AcmeDS and AmplifiedDS in terms of buttons, layouts and screens and that even minor details were the same. The Respondent further contends that AmplifiedDS was proprietary information and copyrightable, that AcmeDS was a derivative and that the Applicant never sought approval or disclosed to the Respondent the development and publication of the AcmeDS product. The Respondent submits that by the Applicant’s public release of AcmeDS which included the Respondent’s IP, he had put the Respondent’s business at risk and was likely to erode customers’ confidence in the Respondent’s preservation of confidential information.

[73] At the core of the Respondent’s concern is that of the similarities between the AcmeDS and AmplifiedDS and what appears to the Respondent to be a copy (with some modifications). The Applicant rejects the charge that AcmeDS is either a copy or a derivative of AmplifiedDS. He contends that buttons, colours, style of boxes and fonts are not copyrightable and are standard across website designs. He also contends that he has developed a particular approach to creating a visual design and layout of screens over many years. The Applicant submits that significantly, he did not disclose Respondent’s IP in patent searching which is the core of their business.

[74] A comparison of AcmeDS and AmplifiedDS reveals great similarities which in my view are not easily explained as mere chance. See for example the visual similarities between the two design systems 68. The ‘progress’ (page 1) bars are identical, the ‘Alert’ colours (page 2) are identical, and the ‘Tooltip’ (page 2) are also remarkably similar. Only minor labelling differences can be seen in comparing the menu bar (page 3). The visual similarities continue to be seen in the comparison of components and layouts69 even though different colours are used. There is in my view an overwhelming visual similarity of the two design systems.

[75] Further, the software code used in AcmeDS and AmplifiedDS appears the same 70. The Applicant attributes this to standard shapes and font sizes and that Apple IOS requires particular code to be used for that system. Why the code was almost identical was not satisfactorily explained by the Applicant in circumstances where shadow opacity and radius are all design elements that could have been different according to the Respondent, a point not rebutted by the Applicant.

[76] I am also satisfied that the similarities between the two design systems go beyond the visual elements as can be seen in the comparison of prototypes and screens 71 between the AcmeDS and AmplifiedDS. A comparison reveals for example use of the term ‘active’ and ‘archived’ on the ‘Projects’ screen of both the AmplifiedDS and AcmeDS systems as well as having a great visual similarity. Similarly, the ‘Invite’ button appears the same in both systems. I also accept the Respondent’s submission that the design systems use the “exact same boilerplate text.”

[77] The Applicant resisted the proposition that AcmeDS was a copy or derivative of the Respondent’s design system, which he had developed. I found that denial unconvincing in circumstances where he agreed that he had developed AcmeDS on his work laptop, acknowledged that he had access to the Respondent’s Figma files within which the AmplifiedDS development resided, acknowledged he had limited Figma experience before joining the Respondent and agreed that he had worked closely with Mr Davis on Figma during his employment with the Respondent. These circumstances reinforce the likelihood that the Applicant developed his Figma knowledge and skills during his employment with the Respondent which he made use of in developing AcmeDS. It also supports a conclusion that AcmeDS was a copy or a derivative of AmplifiedDS.

[78] While the Applicant expressed the belief that buttons, sliders, colours and font sizes were all standard elements of a website design system, I note that in launching AcmeDS he did so under a Creative Common License 4.0, meaning any subsequent use of the AcmeDS system by other users required attribution. Why AcmeDS was licensed and required attribution when used by others, was not reconciled by the Applicant with his belief that AmplifiedDS was not so protected, save for the patent searching IP. I further observe that the Applicant’s knowledge of and/or concern for copyright and IP rights appeared superficial at best, as can be seen by;

  • his failure to read the Tailwind UI license despite claiming to have purchased his own license;
  • his concession that the Figma code of AcmeDS was largely identical to AmplifiedDS but he did not think it was copyrightable;
  • his concession that he had used Heroicons icons despite those icons being protected by copyright;
  • his failure to check or consider the Dribble IP and license implications when he launched AcmeDS; and
  • his concession that Figma screenshots were ‘somewhat confidential’.

[79] It follows from the above and I am satisfied that the similarities between AcmeDS and AmplifiedDS are such as to enable the Respondent to reasonably conclude that the former was a derivative of the latter. I am further satisfied that the Respondent had a reasonable basis to conclude that AcmeDS was an ‘Invention’ as defined at clause 4(b) of the CIAA and it fell within the following description provided in that definition;

“……..I understand that “Company Inventions” means any and all Inventions that I may solely or jointly author, discover, develop, conceive, or reduce to practice during the course of providing services under the Relationship or otherwise in connection with the Relationship, except as otherwise provided in Section4(g) below.”

Did the Applicant’s conduct constitute serious misconduct?

[80] While the Code refers to matters that serious misconduct includes, those being “theft, fraud, violence and serious breaches of occupational health and safety procedures,” the description is not exhaustive such that other forms of misconduct not described would fall outside of the meaning of the term serious misconduct. Relevantly, regulation 1.07 of the Fair Work Regulations 2009 (FW Regs) defines serious misconduct as follows;

“1.07  Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee 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.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault; or

(iv) sexual harassment.

(b) the employee being intoxicated at work

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

………………”

[81] I am satisfied that the Applicant’s conduct constituted serious misconduct as that term is defined within regulation 1.07 of the FW Regs for the following reasons.

[82] I am satisfied that the Applicant’s conduct was deliberate and wilful as evidenced by the Applicant’s refusal to remedy the concern raised by the Respondent, by removing the AcmeDS product from public access. I also note he has not complied with a term of his CIAA that required him to sign and return a ‘termination certificate’ stating that he no longer has any of the Respondent’s confidential information or property in his possession. An inadvertent disclosure of the Respondent’s confidential IP could have been reasonably and quickly remedied by the Applicant. The fact that he has declined to do so tells against the conduct being inadvertent but rather, speaks to the conduct being deliberate and wilful.

[83] I also accept the Respondent’s submission that the protection of its IP is critically important given that the value of its business derives from the IP of its software products. Unauthorised disclosure of the Respondents IP and/or confidential information holds the potential to damage the Respondent’s business and the confidence that customers may hold in the Respondent’s protection of confidential information. In these circumstances, I am satisfied that the Applicant’s conduct of on-line posting of AcmeDS as well as the unreleased details of the Respondent’s ‘Teams and Sharing’ product caused ‘serious and imminent risk’ to the Respondent’s business.

Did the Respondent’s carry out a reasonable investigation?

[84] I now turn to consider the investigation undertaken by the Respondent which the Applicant contends was inadequate in the circumstances of what he says is a complex matter.

[85] As set out in the evidence, the Respondent undertook an investigation following Mr Davis discovering the AcmeDS starter kit and the released confidential ‘Teams and Sharing’ product details on 18 August 2021. In conducting its investigation, it undertook a comparison of the AcmeDS and AmplifiedDS systems, sought IP counsel advice and written employment law advice before meeting with the Applicant at 9.00am on 25 August 2021 during which meeting Mr Davis detailed the allegations.

[86] The Applicant submits that the Respondent could not have had reasonable grounds to form a genuine belief as to the conduct justifying immediate dismissal due its failure to conduct a reasonable investigation. The elements of a reasonable explanation said to be missing are firstly, the Respondent ought to have put the allegations in writing to the Applicant, as requested by him, and afforded him an opportunity to respond in a considered way. Secondly, the Respondent failed to obtain a forensic software expert opinion on whether AcmeDS was a copy or derivative of AmplifiedDS thereby breaching the Respondent’s IP rights. Finally, the Applicant says that the Letter of Termination makes no mention of the ‘theft and fraud’ he is now alleged to have engaged in.

[87] In respect of the claimed failure of the Respondent to put the allegations in writing, on any reasonable view of the Zoom meeting conducted at 9.00am on 25 August 2021 which was recorded 72, the allegations and/or concerns were calmly explained to the Applicant by Mr Davis. While the Applicant says he was surprised and shocked at being confronted by Mr Davis, that reaction was not apparent. Rather, the Applicant appeared calm, declined to respond to questions and requested some time to seek some advice. He was then afforded a further opportunity to respond to the concerns at the 2.00pm meeting at which he was accompanied by his legal representative. He again chose not to engage substantively with the allegations according to Mr Davis, which evidence was not rebutted by the Applicant.

[88] There is no statutory requirement that allegations of misconduct must be put in writing to an employee to enable a response to be provided and to render the investigation ‘reasonable’. While putting allegations in writing may be desirable in many circumstances, it is to be borne in mind that the employer in the present case is a small business employer. It is sufficient in my view that the Applicant understood the particulars of the allegations that were put against him and was provided with an opportunity to provide his side of the story. I am satisfied in respect of both those actions having been taken. That the Applicant chose not to fulsomely respond at either the 9.00am or 2.00pm meetings on 25 August 2021 does not render the investigation deficient.

[89] In respect of the second point, Mr Davis conceded in his evidence that the Respondent did not engage the services of a forensic software expert as part of its investigation of AcmeDS. Mr Davis made the point in response to the Applicant’s criticism, that he was the CEO of a software company which gave him a sound understanding of the matters of concern to the Respondent. I am not persuaded that the absence of a forensic software experts’ opinion or report rendered the investigation deficient in circumstances where the company was engaged in software development and the principals of the Respondent have knowledge of the relevant subject matter. I note for the sake of completeness that neither party called evidence in the proceedings before me from either IP specialists or forensic software experts that might have aided their respective cases. It is also regrettably the case that any evidence that might have been otherwise available from the Applicant’s former company laptop was lost when he ‘wiped’ it ‘clean’ before returning it to the Respondent.

[90] I agree with the Applicant’s submission that the terms “theft and fraud” were not used in the termination letter issued to the Applicant on 25 August 2021. While the Respondent may now seek to characterise the conduct with use of that hyperbole, it does not alter the test of which I must be satisfied and that is whether the Respondent had a reasonable basis on which to form a genuine belief at the time of the dismissal that the Applicant’s conduct was sufficiently serious to justify immediate dismissal. That assessment is to be made at the time of the dismissal, not how the Respondent may seek to variously characterise the conduct now. The basis for the dismissal was clearly set out in the Termination Letter and it is those reasons which I must be satisfied were based on reasonable grounds.

[91] It follows from the above and I am satisfied that the Respondent carried out a reasonable investigation before deciding to terminate the Applicant’s employment.

Conclusion on reasonable grounds

[92] The Applicant’s conduct in releasing confidential information and the IP of the Respondent without its prior approval, through the AcmeDS product and details of the unreleased ‘Teams and Sharing’ product, were the basis for his summary dismissal. That conduct was in breach of the Applicant’s obligations under both his Employment Agreement and CIIAA. The Applicant’s conduct was the subject of a reasonable investigation which included the allegations being put to the Applicant for a response prior to his dismissal being affected. The Applicant’s conduct was deliberate, wilful, and caused ‘serious and imminent risk to the Respondent.

Conclusion

[93] For the reasons set out above, I am satisfied that;

(1) at the time of the Applicant’s dismissal, the Respondent was a small business employer within the meaning of s.23(1) of the Act;

(2) on 25 August 2021, the Respondent dismissed the Applicant with immediate effect and without notice, on the ground that the Applicant had engaged in serious misconduct;

(3) the Respondent genuinely believed that the Applicant had engaged in conduct that was sufficiently serious to justify immediate dismissal;

(4) the Respondent carried out a reasonable investigation in the circumstances; and

(5) the Respondent’s belief that that the Applicant’s conduct was sufficiently serious to justify immediate dismissal was based on reasonable grounds.

[94] I am therefore satisfied that the Applicant’s dismissal was consistent with the Code. It follows that his application for an unfair dismissal remedy must be dismissed. An order giving effect to this decision will be separately issued.”

Mansfield v Amplified AI Pty Limited (2021) FWC 6702 delivered 30 December 2021 per Masson DP