This is an extract from a recent decision of the Fair Work Commission which deals with the often complex issue of what constitutes a valid reason for dismissal, which is an important but not in itself dispositive factor in unfair dismissal cases.
“Section 387(a) – Valid reason for the dismissal
[46]
The AFL submitted that the Deputy President correctly understood that it was required to make findings, for the purposes of s 387(a) of the FW Act, as to whether there was a valid reason for the dismissal of Mr Kalayzich from his employment, and specifically in a case involving alleged misconduct, to make findings as to whether the conduct relied upon by the AFL to justify the termination of his employment had, in fact, occurred and what it involved.
[47]
The AFL submitted that the Deputy President highlighted the elongated duration and coverage of distance of Mr Kalayzich grabbing Mr CS by the shirt, appearing to shake him and dragging him towards a gate, over the course of nearly one minute and over nearly 40 metres. The AFL submitted that this showed the Deputy President rejected the purported self-defence, and that it was inapt to describe Mr Kalayzich’s conduct as ‘a split-second error in judgment’.
[48]
The AFL submitted that Mr Kalayzich bore the onus of establishing that he acted in self-defence. The AFL submitted that the Deputy President’s rejection of any case of self-defence is demonstrated by his description of Mr Kalayzich’s actions in the CCTV footage, and the specific identification of Mr Kalayzich’s ‘mischaracterisations’ in his evidence in cross-examination with regard to what can be objectively discerned from the CCTV footage.
[49]
The AFL submitted that Mr Kalayzich’s specific concerns with the factual findings are no more than his disagreement with how the Deputy President viewed the footage. The AFL submitted that the grounds of appeal and Mr Kalayzich’s submissions do not demonstrate any error of fact, let alone significant error of fact, in circumstances in which the factual findings were based on the Deputy President’s assessment of the CCTV footage. The AFL submitted that the Deputy President clearly understood the thrust of Mr Kalayzich’s case concerning the importance of the security of AFL umpires; it just rejected his evidence that this was why he engaged with Mr CS as he did.
[50]
The AFL submitted that there is no basis for Mr Kalayzich to impugn the Deputy President’s decision as a result of the AFL’s forensic decision not to call Mr CS, noting it was equally open to Mr Kalayzich to summons Mr CS. The AFL submitted that Mr CS was not a critical witness to form the state of satisfaction for the allegations as the CCTV footage was clear-cut. The AFL submitted that Mr CS’ alleged impropriety in engaging with the AFL based on his running activity and where he actually lived are no more than distractions from Mr Kalayzich’s objectively observable and unacceptable conduct.
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Sections 387(b) and (c) – Opportunity to respond
[51]
The AFL submitted that the Deputy President was correct to find that there was no procedural unfairness in how Mr Kalayzich was given access to the CCTV footage during the investigation. The AFL submitted that the allegations were put squarely to Mr Kalayzich in the letter dated 16 April 2025 which was sent to him nearly a week before the interview.
[52]
The AFL submitted that, in relation to the final discussion between Ms Adams and Ms Kane, Ms Adams gave unchallenged evidence that she conveyed only limited information about the 2023 and 2024 interactions she had with Mr Kalayzich in response to a specific question from Ms Kane. The AFL submitted that, as Mr Kalayzich’s earlier interactions with Ms Adams were not factors relied upon to justify the termination of his employment in the letter of termination, there was no need for the AFL to call Ms Kane as a witness.
[53]
The AFL submitted that the only specific alleged procedural unfairness Mr Kalayzich identified was the possibility that being granted greater access to the CCTV footage might have enabled him to identify other umpires who may have been in close physical proximity during the Incident. The AFL submitted that this does not demonstrate any practical injustice in the circumstances, and that Mr Kalayzich called supporting witnesses as he saw fit.
Other matters
[54]
The AFL submitted that to the extent Mr Kalayzich seeks to rely upon the circumstances involving Mr Balta, the Deputy President’s findings on that argument were open on the available evidence, and no appealable error has been established. The AFL submitted that no other errors or manifest injustice affects the Deputy President’s decision overall.
Consideration
Permission to appeal
[55]
There is no right to appeal from a decision of a member of the Commission, and an appeal may only be made with the permission of the Commission under s 604(1) of the FW Act. Ordinarily, permission to appeal is required to be granted under s 604(2) if the Commission is satisfied it is in the public interest to do so and the Commission otherwise has a general discretion as to whether to grant permission to appeal. However, this is an appeal to which s 400 of the FW Act applies. Section 400 provides:
(1)
Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2)
Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[56]
Section 400(1) stipulates that the Commission can only grant permission to appeal a decision under Part 3-2 if it is satisfied that the grant of permission to appeal would be in the public interest. The test in s 400(1) is stringent, imposing a higher threshold for permission to
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appeal with respect to decisions made in unfair dismissal proceedings. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment: O’Sullivan v Farrer (1989) 168 CLR 210 at 216 (Mason CJ, Brennan, Dawson and Gaudron JJ) applied in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78 at [44]-[46] (Buchanan J). In GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, (2010) 197 IR 266, a Full Bench of the Commission identified some of the considerations that may attract the public interest (at [27]):
… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.
[57]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of an appealable error. However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
[58]
Although the question is finely balanced, we are satisfied that it is appropriate to grant permission to appeal in the present matter. The grounds of appeal advanced by Mr Kalayzich give rise to arguable grounds of error. The grounds also raise issues of wider importance in relation to the approach adopted by the Deputy President in relation to the determination of whether there was a valid reason for dismissal, particularly as to the extent to which the circumstances surrounding an allegation of misconduct are relevant to, and must be considered as part of, assessing whether there was a valid reason for dismissal. In relation to the question of permission to appeal, we have also considered the importance of the case to Mr Kalayzich given his long period of employment and the significance to him of his work as an AFL umpire and in coaching other AFL umpires.
[59]
If permission to appeal is granted, an appeal under s 604(1) of the FW Act is by way of rehearing such that the Full Bench can only exercise its powers on appeal if it finds error: Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29; (2025) 99 ALJR 1185 at [53] (Gageler CJ, Gordon and Beech-Jones JJ). In relation to findings such as whether a dismissal was harsh, unjust or unreasonable, or whether there was a valid reason for dismissal, the task is properly understood to involve a discretionary determination such that appellate intervention is only permissible on the bases identified in House v The King (1936) 55 CLR 499: DP World Sydney Ltd v Witherden [2025] FWCFB 133; (2025) 342 IR 253 at [22]-[33] (Witherden). This dictates that appellate intervention is limited to circumstances where the decision-maker at first instance acted upon a wrong principle, or allowed extraneous or irrelevant matters to affect the decision, mistook the facts, failed to take into account some material consideration or made a decision that was unreasonable or plainly unjust.
[60]
An additional constraint applies in unfair dismissal proceedings with respect to findings of fact. Section 400(2) limits the grounds on which an appeal may be brought in an unfair dismissal case to the extent that it is an appeal on a question of fact to grounds that allege the decision involved a significant error of fact. The ‘significance’ of a fact is to be assessed by
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reference to its importance to the decision being made: BP Refinery (Kwinana) Pty Ltd v Tracey [2020] FCAFC 89; (2020) 276 FCR 9 at [22] (Besanko, Perram and Jagot JJ); Witherden at [35]. To be characterised as ‘significant’, a factual error must generally be one that that vitiates the ultimate exercise of the discretion or is foundational to the member’s conclusion: Gelagotis v Esso Australia Pty Ltd T/A Esso [2018] FWCFB 6092 at [43].
Section 387(a) – valid reason for the dismissal
[61]
The principles applicable to the consideration required under s 387(a) are well established at least at a general level. The assessment of whether the reason for the dismissal is ‘valid’ requires the making of an evaluative judgment based on findings and inferences of fact: Maxitanis v Department of Justice and Community Safety [2020] FWCFB 4529 at [50] (Maxitanis). A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced: Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373 (Northrop J). When the reason for termination is based on the misconduct of the employee, the Commission must, if it is in issue in the proceedings, determine whether the conduct occurred and what it involved. A reason would be valid because the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour): Edwards v Giudice (1999) 94 FCR 561 at [7] (Moore J).
[62]
A number of cases have considered the proper approach to determining whether there was a valid reason for the dismissal where the dismissal involved a physical alternation. In Tenix Defence Systems Pty Ltd v Fearnley (AIRC(FB), Print S6238, 22 May 2000) (Fearnley), a Full Bench of the Australian Industrial Relations Commission considered an appeal against a decision of a Senior Deputy President to reinstate an employee who had been involved in a physical fight initiated by a colleague in the workplace. The employer dismissed both employees. The application was brought under what was s 170CE of the Workplace Relations Act 1996 (Cth) (the WR Act). The WR Act required the AIRC to have regard to the criteria in s 170CG(3) to determine whether the termination was harsh, unjust or unreasonable. Section 170CG(3) of the WR Act was in similar terms to s 387 of the FW Act, including that the Commission was required to consider ‘whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer’s undertaking, establishment or service’ (s 170CG(3)(a)) and ‘any other matters that the Commission considers relevant’ (s 170CG(3)(e)).
[63]
In that matter, the Senior Deputy President determined that there was no valid reason for the dismissal as the applicant was not a willing participant in the fight, that the aggressor and the initiator of the fight was the other employee, that the applicant’s conduct did not contribute to the confrontation which turned into the fight and that in so far as the applicant punched the other employee, the applicant was reacting to a real threat to his physical well-being. The Full Bench examined numerous authorities considering dismissal where fighting or assault had been established including AWU-FIME Amalgamated Union v Queensland Alumina Limited (1995) 62 IR 385 at 393, Torbet v Commissioner for Public Employment (1993) 51 IR 445 at 450, Mobil Oil v Giuffrida (AIRC(FB), Print N4832, 11 September 1996) and Qantas Airways Limited v Cornwall (1998) 83 IR 102 at 110; [1998] FCA 865; (1998) 84 FCR 483 at 492 (Cornwall). The following extract from the decision of the Full Federal Court (Burchett,
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Cooper and Finn JJ) in Cornwall (at 492) which the Full Bench referred to is pertinent to the matter before us:
We have already stated that the respondent, in the present case, struck his supervisor. That is not now in dispute. Nor is it in dispute that Qantas acted on this conduct as a reason when it terminated the respondent’s employment. The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.
[64]
The Full Bench concluded that based on these authorities, in determining whether there is a valid a reason for a termination of employment arising from a fight in the workplace, the Commission should have regard to all of the circumstances in which the fight occurred including, but not limited to (at [25]):
•
whether the terminated employee was provoked and whether he or she was acting in self defence;
•
the employer’s need to establish and retain discipline amongst its employees; and
•
the service and work record of the employee concerned.
[65]
The Full Bench concluded (at [62]) that the Senior Deputy President’s conclusion that there was no valid reason for the termination of the applicant’s employment was reasonably open to him and dismissed the appeal.
[66]
In B v Australian Postal Corporation [2013] FWCFB 6191; (2013) 238 IR 1 (B v Australia Post), the Full Bench considered the relationship between the reference to ‘valid reason’ in s 387(a) and a finding of ‘harsh, unjust and unreasonable’. The Full Bench observed (at [21]) that, in any given case, there will be a range of matters, beyond those specified in s 387(a) to (g), which bear upon whether the dismissal is ‘harsh, unjust or unreasonable’ and therefore are ‘relevant matters’ that must be considered pursuant to s.387(h). The Full Bench then said (at [22]):
Often it will not make any difference to the ultimate outcome whether a particular circumstance is considered pursuant to s.387(a) in determining whether there is a valid reason, or as a relevant matter pursuant to s.387(h), leading to the ultimate determination of whether the dismissal was “harsh, unjust or unreasonable”. However, in some cases it may matter greatly. That will tend to be so when the particular misconduct, shorn of the personal circumstances of the employee and the broader context beyond the particular acts or omissions that are said to constitute the misconduct, is clearly a matter that a reasonable employer is entitled to take seriously.
[67]
In that case, the Full Bench was dealing with employees who had been dismissed for emailing pornography in breach of their employer’s policies. After considering various authorities in relation to the approach to determining whether there was a valid reason for dismissal, the Full Bench said (at [35]-[36]) that it is the reason of the employer, assessed from the perspective of the employer, that must be a ‘valid reason’ and that a substantial and wilful breach of a lawful and reasonable policy will often, if not usually, constitute a ‘valid reason’ for dismissal. The Full Bench stated (at [40]-[41]) that, while the accessing, sending or receipt and storage of pornography will typically contravene an employer’s policy and that
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contravention will usually constitute a ‘valid reason’ for termination, a dismissal may be ‘harsh, unjust or unreasonable’ notwithstanding the existence of a ‘valid reason’ for the dismissal.
[68]
The Full Bench then identified (at [42]) the following three broad categories in which circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall:
(1)
The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.
(2)
The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]
(3)
The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. (This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents).
[69]
The Full Bench then said (at [43]):
The determination of whether there was a valid reason proceeds by reference to the matters in category (1) and occurs before there is a consideration of what Northrop J described as “substantive fairness” from the perspective of the employee. Matters in categories (2) and (3) are then properly brought to account in the overall consideration of the whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason”.
[70]
More recently, a different Full Bench considered the correct approach when determining whether a dismissal was harsh, unjust or unreasonable in the context of a breach of a drug and alcohol policy Sydney Trains v Reece Goodsell [2024] FWCFB 401; (2024) 335 IR 1 (Goodsell) In that case, the Full Bench distilled a number of principles from previous Full Bench decisions dealing with breaches of drug and alcohol policies including, relevantly:
[116] …where breach of a lawful and reasonable drug and alcohol policy is the reason for dismissal, the Commission must consider whether the breach simpliciter is of sufficient gravity to constitute a sound, defensible, well-founded, and therefore valid reason for dismissal under s. 387(a). In considering this question, circumstances raised in mitigation relating to the general context in which the breach occurred, or personal to the dismissed employee, are not to be considered for the purposes of mitigating or derogating from the analysis and conclusion in relation to s. 387(a). Personal context may include that the dismissed employee did not display visible signs of impairment, or that there was no intention on the part of the employee to breach the policy, or that the dismissed employee was dealing with personal issues at the relevant time or matters such as the age and employment record of the dismissed employee. General context may include inconsistencies in the application of the policy or its terms, or a lack of understanding at the workplace about an important aspect of the policy, or whether the employer has properly explained the implications of the policy.
[117] Contextual matters cannot derogate from the validity of a reason for dismissal based on a breach simpliciter of a lawful and reasonable policy. This involves a decision making process
whereby the validity of a reason for dismissal under s. 387(a) is considered separately from mitigating factors found to be relevant under s. 387(h). All the matters in s. 387 – substantive,
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procedural and contextual – are then required to be considered and weighed in the overall assessment of whether a dismissal is harsh, unjust or unreasonable. Notwithstanding a finding
under s. 387(a) that there was a valid reason for dismissal related to breach of a drug and alcohol policy, it may be reasonably open to the Commission to find that in all the circumstances of a particular case, the dismissal was unfair, when other matters in s. 387 are considered and weighed, including mitigating factors in s. 387(h).
[71]
This analysis suggests that the approach in Fearnley in relation to whether misconduct constitutes a valid reason for dismissal presents some differences compared to the approach adopted in B v Australia Post and Goodsell. In each of the three cases, the employee was dismissed due to a breach of the employer’s policy. In B v Australia Post and Goodsell, the employee’s breach of the employer’s policy in respect of emailing pornography and failing a drug test was considered misconduct and a valid reason for dismissal. In Fearnley, the Full Bench said that the applicable policy prohibiting fighting was relevant but not determinative of the matter and noted the Senior Deputy President’s observations that the policy recognised that the reasons for an employee being involved in a fight need to be considered. The Full Bench in Fearnley found no error in the Senior Deputy President’s decision that the applicant’s original and continued involvement in the fight was in his own self defence and that he was therefore not satisfied that there was a valid reason for the dismissal.
[72]
The approach of the Full Bench in Fearnley was applied by a Full Bench of this Commission in Jetstar Services Pty Limited v Ishtak [2013] FWCFB 7030; (2013) 236 IR 274 in concluding on a rehearing of an unfair dismissal application that there was a valid reason for dismissal in respect of an employee who was dismissed. In that case, the Full Bench found (at [58]) that the physical actions of the applicant occurred in the context of a heated verbal exchange in which the applicant and another employee both used offensive language towards the other, that there was no suggestion of prior inappropriate physical action by the applicant towards other employees (or previous disciplinary action against him) and, that the applicant’s actions were at the lower end of the spectrum in terms of physical altercations in the workplace. The Full Bench concluded (at [59]) that while serious and warranting disciplinary action, it was not satisfied that the nature of the physical assault by the applicant, when assessed in the full circumstances of the incident, in itself provided a valid reason for the termination. However, the Full Bench concluded that the physical assault in combination with the dishonesty of the applicant toward his employer during its investigation process provided a valid reason for his dismissal.
[73]
More recently, the approach in Fearnley was endorsed in the Full Bench decisions of Newton v Toll Transport Pty Ltd [2021] FWCFB 3457; (2021) 307 IR 140 and Central Queensland Services Pty Ltd v Weule [2025] FWCFB 239 (Weule). In Weule, for example, the Full Bench found no error in the finding by a Deputy President at first instance that there was no valid reason for the applicant’s dismissal because the applicant was attacked by another employee, the applicant had an objectively reasonable basis to consider that he needed to defend himself and that the actions the applicant took were proportionate and reasonable having regard to the events and the conditions on the haul road at the time.
[74]
During the appeal hearing, Mr Kalayzich’s legal representatives referred to Maxitanis. That decision concerned an appeal against a finding that there was a valid reason for the dismissal of the applicant, a correctional officer who was dismissed after using force when restraining a prisoner. The Full Bench found (at [54]-[60]) that the Commissioner’s conclusion
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that the applicant’s conduct during the incident constituted a valid reason for his dismissal was in error for a number of reasons including that the Commissioner failed to take into account a number of important contextual considerations including that the prisoner had a psychiatric illness and a history of aggressive behaviour and volatility towards prison staff, the Commissioner assessed the applicant’s conduct purely by reference to the CCTV footage without bringing to bear the other evidence of the witnesses to the incident and that the Commissioner took no account of the actions the applicant took in relation to the prisoner before his use of force, and characterised his use of force as ‘premature’. On rehearing the matter, the Full Bench concluded (at [70]) that there was no valid reason for the dismissal as it did not consider the use of force by the applicant on the prisoner to be unreasonable or unnecessary and that it was necessary to take into account the fact that the applicant was faced with an aggressive and psychiatrically ill person, feared he was about to be assaulted, was required to make a split-second judgment as to how to respond, and did not inflict any injury upon the prisoner.
[75]
Having regard to these authorities, we believe that the apparent tension between the approach to considering valid reason in cases of misconduct in Fearnley, Maxitanis and Newton on one hand, and B v Australia Post and Goodsell on the other, can be reconciled. In the later cases, the reason relied upon was constituted by the alleged breach of policy. The contravention of the policy in relation to email use or drug and alcohol testing was itself treated as providing a valid reason for dismissal. Given the nature of the contraventions involved, any circumstances that might have explained or mitigated the seriousness of the conduct were more appropriately considered as an ‘other relevant matter’ under s 387(h). A physical altercation in the workplace of the type dealt with in Fearnley, Maxitanis and Newton necessarily involves more than one person. In those circumstances, it is difficult to conceive of a situation in which an employer could form the view that an employee’s involvement in a physical altercation at work was a valid reason for dismissal without considering the circumstances in which the altercation occurred. If an employee initiates the altercation without provocation and continues to be the aggressor throughout the altercation, this will clearly amount to misconduct and be a valid reason for the dismissal. However, if the altercation is initiated by another person and any acts of aggression by the employee are limited to preventing the other person from injuring the employee, it is unlikely that the employee’s actions would constitute a valid reason for dismissal. In cases where it is less clear how the altercation started and the extent of the involvement of the employee and the other person or persons, the employer would need to carefully examine all of the circumstances in which the altercation occurred in order to determine the extent of the employee’s culpability and whether there was a valid reason to dismiss the employee. It is necessary that such circumstances are considered by the Commission when determining an unfair dismissal application as part of its assessment as to whether there is a valid reason for dismissal under s 387(a) rather than only as mitigating factors, or as to whether dismissal was a proportionate response, under s 387(h).
[76]
With that background, it is necessary to consider the submissions made on behalf of Mr Kalayzich concerning whether the Deputy President properly considered the context in which the altercation between him and Mr CS took place. In his grounds of appeal, and submissions in relation to the appeal, Mr Kalayzich submits that the Deputy President failed to consider a long list of matters said to constitute relevant considerations. Arising from the written and oral submissions made on the appeal and doing the best we can to discern the substance of the appeal grounds, Mr Kalayzich appears to refer to two categories of matters which he alleges the Deputy President failed to consider.
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[77]
The first category is that Mr Kalayzich contends that the Deputy President failed to consider the ‘vital context’ in which the incident occurred. The elements of the context to which Mr Kalayzich referred on appeal were that the AFL failed to comply with the Work Health and Safety Act 2011 (NSW), the importance of the safety, integrity and security of the umpires, the hiring arrangements and conditions of entry of the North Sydney Oval meant that Mr Kalayzich was an ‘authorised person’ able to give instructions to persons attending the ground, that Mr Kalayzich was the most senior umpire present and had a responsibility to protect the security of the session and that Mr CS was a trespasser at law.
[78]
In relation to those matters, it is correct to say that the Deputy President did not specifically refer to the safety implications of a member of the public being present whilst the AFL umpire training was taking place in the consideration section of his decision in which he dealt with whether there was a valid reason for dismissal. However, the reasons of the Deputy President must be read as a whole. In our view, it is sufficiently clear from the decision that the Deputy President was conscious of the contextual considerations referred to by Mr Kalayzich. At first instance, safety and security considerations and Mr Kalayzich’s responsibilities with respect to safety and security were raised in his written submissions dated 25 July 2025 as matters which arose under s 387(h). Those matters were said to support the contention that Mr Kalayzich was primarily driven by a concern for the health and safety of those under his care and their belongings when confronting Mr CS. The Deputy President (at [105]-[106]) expressly addressed those contentions in his decision, including referring to the lack of training or policy guidance on how to handle non-participants on the field and the submission that Mr Kalayzich’s conduct should be evaluated in this risk and responsibility setting.
[79]
In closing oral submissions, the reference to health and safety legislation and the responsibilities of the AFL, and Mr Kalayzich with respect to the participants in the AFL umpire training, was perhaps advanced as a more general contextual consideration. However, we do not believe the proper inference to be drawn from the Deputy President’s decision is that he ignored, or was not conscious of, these matters in assessing whether there was a valid reason for dismissal. There was no dispute that Mr CS should not have been present at the closed training session or that Mr Kalayzich was entitled to ask Mr CS to leave. The Deputy President earlier noted (at [12]) that Mr CS did not belong to any of the groups who were supposed to be on the Oval and accepted (at [14]) that Mr Kalayzich told Mr CS that training was about to start and that the Oval was private property. The Deputy President (at [75]) recorded the submissions advanced by Mr Kalayzich in relation to access to the venue, his responsibility for safety and that he was attempting to achieve security at the venue. We do not accept that the Deputy President failed to consider those submissions or the factual matters underlying the submissions in considering whether there was a valid reason for dismissal.
[80]
The second category is that Mr Kalayzich contends that the ‘Consideration’ section of the Deputy President’s decision proceeds on an oversimplification of the incident with Mr CS. Mr Kalayzich emphasises that the incident escalated in a number of stages being that Mr Kalayzich engaged Mr CS in conversation to explain that the Oval was a closed venue and attempted to reason with Mr CS, that Mr CS ignored the request and attempted to move around Mr Kalayzich and that Mr CS initiated physical contact by grabbing Mr Kalayzich on the shoulder. Mr Kalayzich submits that it was only at this point that he reacted physically by
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moving Mr CS towards the exit. Having regard to this course of events, issues of provocation and self-defence were relevant and should have been considered by the Deputy President.
[81]
The ‘Consideration’ section of the Deputy President’s decision did not set out, in detail, the course of events described by Mr Kalayzich. Again, however, it is necessary to read the reasons of the Deputy President as a whole. Earlier in his decision, the Deputy President (at [11]-[24]) made factual findings as to what occurred in the incident. The Deputy President recorded that Mr Kalayzich approached Mr CS and accepted Mr Kalayzich’s evidence as to what was said between the two men. The Deputy President accepted that Mr CS refused to leave and attempted to recommence running and that the physical altercation commenced with Mr CS grabbing Mr Kalayzich on his right shoulder. The Deputy President then stated that the CCTV footage showed that, following the contact by Mr CS, Mr Kalayzich wrestled, man handled and frog-marched Mr CS towards a gate on the oval. The Deputy President stated that Mr Kalayzich grabbed at Mr CS’ shirt and appeared to shake Mr CS and drag him towards the gate; and that at one stage Mr Kalayzich let go of Mr CS’ shirt, pushed Mr CS backwards, and ‘shaped up’, with his fists partially raised by his side.
[82]
Although there is some lack of clarity as to what conduct the Deputy President described (at [88]) as involving ‘violent and abusive behaviour (both physical and verbal)’, it is sufficiently apparent (particularly from the reference to the CCTV footage and witness evidence in the preceding paragraph) that he was referring to the earlier findings in relation to the incident. We do not believe a fair reading of the decision supports the view that the Deputy President failed to determine whether there was a valid reason for dismissal based on the conduct of Mr Kalayzich understood in the full context in which it occurred, including that he was endeavouring to have Mr CS leave the Oval and that Mr CS refused and initiated physical contact with Mr Kalayzich. The Deputy President evidently did not accept that the conduct of Mr CS justified Mr Kalayzich’s response by way of provocation or self-defence. We do not consider that this means the Deputy President failed to understand or consider that Mr Kalayzich’s conduct occurred in those circumstances.
[83]
To the extent that Mr Kalayzich complains that the Deputy President failed to take into account that the AFL did not fairly consider the evidence as part of the investigation process, that submission does not assist determination of the question of whether there was a valid reason for dismissal. Whether there is a valid reason for dismissal turns upon the facts established on the evidence in the proceedings before the Commission rather than whether the employer reasonably believed, after undertaking proper inquiries, that the alleged misconduct was established or justified dismissal: see, for example, Edwards v Giudice (1999) 94 FCR 561 at [6] and Australian Meat Holdings Pty Ltd v McLaughlin (1998) 84 IR 1 at 13-14 (see also CSL Ltd (t/as CSL Behring) v Papaioannou [2018] FWCFB 1005; (2018) 273 IR 168 at [77] in relation to dismissal on grounds of capacity).
[84]
There is one further aspect of the Deputy President’s decision on the valid reason question to which reference should be made. In paragraph [88] of the decision, the Deputy President concluded that dismissal was ‘a proportionate response’ to the conduct of Mr Kalayzich. It has been said that the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal and whether dismissal was a proportionate response to the conduct will be a relevant matter under s 387(h): Sydney Trains v Hilder [2020] FWCFB 1373 at [26](8) and [30]. However, no ground of appeal was advanced in relation to that aspect
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of the Deputy President’s decision. In any event, in the context of this decision, we do not think that the reference to whether dismissal was a ‘proportionate response’ was intended by the Deputy President to convey more than the statement in the preceding sentence that, in his view, the conduct justified dismissal.
Sections 387(b) and (c) – Opportunity to respond
[85]
With respect to the Deputy President’s conclusions about s 387(b) and (c), Mr Kalayzich makes, in substance, three submissions. First, Mr Kalayzich submitted that the AFL failed to particularise that it was proceeding on the basis of an unprovoked escalation by Mr Kalayzich and that, as a result, failed to provide adequate particulars of serious allegations against him. Mr Kalayzich submits that the Deputy President fails to deal with those issues. Second, Mr Kalayzich submitted that the Deputy President ignored the significance of the AFL denying him the opportunity to analyse the CCTV footage and the fact that Mr Kalayzich could not fairly respond to the allegations for the purposes of s 387(c). Mr Kalayzich also submitted that the Deputy President instead criticised his failure to complain about his limited access to the CCTV footage. Third, Mr Kalayzich submitted that the Deputy President did not address the procedural deficiency arising from the two alleged prior incidents being part of a final discussion between Ms Adams from Human Resources and the final decision maker, Ms Kane, prior to the decision to dismiss.
[86]
In relation to the first matter, this was not the subject of any submissions made by Mr Kalayzich before the Deputy President. Mr Kalayzich did not submit to the Deputy President that he had been denied the opportunity to respond to the reasons for dismissal because he was provided with inadequate particulars of the allegations. In those circumstances, no appealable error could arise. In any event, we consider that the letter dated 16 April 2025 provided specific details of the allegations of misconduct against Mr Kalayzich and the show cause letter of 29 April 2025 provided details of the findings made in relation to the allegations. Those pieces of correspondence provided sufficient information to provide Mr Kalayzich with an opportunity to respond to the reasons for his dismissal and we do not consider that any deficiency in the process leading to his dismissal arises from the fact that the incident was not described, in terms, as involving an unprovoked escalation on the part of Mr Kalayzich.
[87]
In relation to the second matter, the Deputy President considered Mr Kalayzich’s submissions and observed that, as the events shown in the CCTV occurred only fourteen days prior, Mr Kalayzich could reasonably be expected to generally be able to recall those events at the meeting on 22 April 2025. The notes of that meeting attached to the statement of Ms Adams indicate that the Deputy President’s assessment was correct as they recorded Mr Kalayzich’s version of the initial verbal exchange between Mr Kalayzich and Mr CS, that the physical contact during the altercation was initiated by Mr CS and that Mr CS had grabbed Mr Kalayzich’s fingers and bent them back. Mr Kalayzich does not allege that the AFL was aware that he had concerns about not being able to properly view the CCTV footage prior to being required to respond to the allegations and prior to the dismissal. Mr Kalayzich was given an opportunity to respond to the reason for dismissal and did so. We do not accept Mr Kalayzich’s submission that the fact that he did not complain about the adequacy of his access to the CCTV footage at the time was irrelevant. The failure of Mr Kalayzich to request greater access to the CCTV footage at the time suggests that he did not discern at the time that greater access was necessary to respond to the allegations of misconduct. We consider that the Deputy President
[2026] FWCFB 190
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was correct to find that Mr Kalayzich was given an adequate opportunity to respond to the reason for his dismissal notwithstanding that he was not provided with a copy of the CCTV footage outside of the meeting on 22 April 2025. It follows that there is no appealable error in the Deputy President’s consideration of this matter.
[88]
In relation to the third matter, Ms Adams gave evidence that she disclosed earlier the incidents involving Mr Kalayzich in 2023 and 2024 to the ultimate decision-maker, Ms Kane, shortly before Mr Kalayzich’s employment was terminated on 8 May 2025. Ms Adams’ evidence was that she conveyed only limited information about the 2023 and 2024 incidents to Ms Kane in response to a specific inquiry. The 2023 and 2024 incidents were not referred to as matters which the AFL relied upon in deciding to terminate Mr Kalayzich’s employment. There is no evidence that those matters were relied upon by the AFL in making the decision to dismiss Mr Kalayzich. It follows that there is no appealable error arising from the Deputy President not specifically addressing this matter in the decision.
[89]
For those reasons, no error has been demonstrated in the Deputy President’s consideration of the factors in s 387(b) and (c).
Section 387(h) – Other relevant matters
[90]
In his submissions on the appeal, Mr Kalayzich contended that the Deputy President did not have regard to Mr Kalayzich’s submissions in relation to obligations that Mr Kalayzich claims he had in relation to safety and security in determining that there was a valid reason for the termination. In the proceedings before the Deputy President, Mr Kalayzich raised these matters as a consideration under s 387(h) rather than to the question of valid reason under s 387(a). The Deputy President considered these matters under s 387(h) but appeared to reject that Mr Kalayzich’s conduct was motivated by safety and security concerns, finding (at [106]) that Mr Kalayzich simply wanted Mr CS off the Oval immediately. This finding was available to the Deputy President based on the evidence which Mr Kalayzich gave at the hearing. Further, the Deputy President earlier referred (at [40]) to the evidence of Hayden Kennedy that an important part of Mr Kalayzich’s role was to ensure a safe environment extending to both persons and possessions, however the Incident did not involve security of persons or possessions. In our view, it was not necessary for the Deputy President to make more specific findings in relation to Mr Kalayzich’s safety and security obligations given his findings that Mr Kalayzich’s conduct was not motivated by such obligations. Accordingly, there is no appealable error arising from that matter.
[91]
Mr Kalayzich submitted that evidence was presented before the Deputy President which is not referred to in his decision that the AFL co-ordinated the national game including via Codes of Conduct applicable across players, clubs and officials. Mr Kalayzich submitted that this is important context to the comparability of treatment of others such as players by the AFL. The Deputy President specifically dealt with Mr Kalayzich’s submissions about the AFL’s disciplinary response to Mr Balta, who plays for the Richmond Football Club, when referring to Mr McBurney’s evidence and accepted (at [103]) Mr McBurney’s evidence that if any of the AFL’s employees or umpires engaged in similar conduct to that which Mr Balta was reported to have engaged in, then the inevitable result would be termination of employment. Mr Kalayzich’s submissions about differential treatment were considered by the Deputy President.
[2026] FWCFB 190
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There is no appealable error in the Deputy President not referring to each piece of evidence relied upon by Mr Kalayzich in support of this submission.
[92]
To the extent that Mr Kalayzich submits that the Deputy President failed to properly assess the proportionality of dismissal such that a split-second decision made in an unsafe context resulted in the end of a 40-year career, the submission involves an invitation for the Full Bench to substitute its view for the conclusion of the Deputy President as to whether the dismissal was harsh, unjust or unreasonable. This is certainly a case in which reasonable minds might differ. The history of Mr Kalayzich’s employment, in particular, might have persuaded some members of the Commission that his dismissal was harsh. However, that is not sufficient to demonstrate appealable error given the broad evaluative, and discretionary, assessment required to be made by a member of the Commission in an unfair dismissal case.
Conclusion and disposition
[93]
We are satisfied it is in the public interest to grant permission to appeal. However, we do not consider that any error has been demonstrated in the decision of the Deputy President and the appeal must be dismissed.
[94]
The Full Bench makes the following orders:
(a)
Permission to appeal be granted; and
(b)
The appeal be dismissed.”
Appeal by Kalayzich v Australian Football League [2026] FWCFB 190delivered 30 July 2026 per- Gibian VP, Dobson DP and Wright DP