Fair Work Commission Dismisses Unfair Dismissal Application for Failure to Follow Directions

The ‘Ugly’ in ‘the Good, the Bad, and the Ugly’ in our FWO v Woolworths Group Limited Podcast from 17 October 2025. An unfair dismissal case has been dismissed for failure to follow directions of the Fair Work Commission (FWC).

The Termination

A worker has been terminated due to an ongoing course of misconduct, including:

repeated failure to follow the employer’s reasonable and lawful directions;
behaving in a disruptive manner during meetings; and
engaging in threatening and inappropriate conduct in breach of the company’s policies.

This conduct created a hostile and unsafe working environment for his colleagues. The employee had also received written warnings for this behaviour in the past. As a result, his employment was terminated for serious misconduct.

The Application

The ex-employee filed an unfair dismissal application with the FWC. On 19 September 2025, on an application from the Respondent, the Commission directed the Application to refrain from contacting the Respondent directly. Further, that all correspondence between the parties should be directed to their representatives and be limited to that which was relevant to the proceedings.

The Applicant was also required to file any evidence and submissions in reply by 7 October 2025, ahead of a 9 October 2025 hearing.

Failure to Follow FWC Directions

Between 30 September and 7 October, the Applicant sent over 205 emails to the Respondent’s representative, 50 of which were sent directly to the Respondent, in contravention of the 19 September Directions.

Many of these emails were nonsensical in nature, consisted of more than 1800 pages, and some contained threats of physical violence. Specifically, on 7 October 2025 the Applicant sent an email to the Respondent’s CEO which included disturbing content referencing “double taps to the head”.

As a result, on 7 October 2025, the Respondent made an application for the FWC to dismiss the proceedings pursuant to section 399A of the Fair Work Act 2009 (Cth). This application was made on the grounds that the Applicant had unreasonably failed to comply with an order of the FWC.

Upon hearing this application to dismiss and noting that the Applicant did not offer any explanation for his conduct, the FWC found in favour of the Respondent and dismissed the unfair dismissal application. The FWC found that the Applicant’s conduct throughout the proceedings was deliberate, vexatious and designed to cause the Employer and staff distress and inconvenience.

Mr Peter Kha v Glenbourne Investments Pty. Ltd. [2025] FWC 3010 (9 October 2025)

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August 8

When Criminal Proceedings and Employment Law Intersect

The ‘Ugly’ in ‘the Good, the Bad and the Ugly’ in our Restraint of Trade part 2 podcast from 8 August 2025.

In an interesting intersection of criminal law and employment law, the Fair Work Commission (FWC) has granted multiple delays in unfair dismissal proceedings initiated by a former teacher, highlighting the complex balance between different jurisdictions, as well as between procedural fairness and employer operations and obligations.

Background

In December 2023, the teacher was charged with four counts of common assault, relating to three different students, arising from events which allegedly occurred in November 2023. The teacher plead not guilty to each charge, and the matter was listed for a 2-day hearing in April 2025.

The November events led to the students taking out apprehended violence orders against the teacher, prompting the Office of the Children’s Guardian to suspend his Working with Children Check (WWCC), which in turn led to his teacher’s accreditation being temporarily suspended.

In light of his inability to attend school premises, or continue teaching generally, the teacher’s employment was terminated in May 2024.

The Original Application and Further Applications for delay

In June 2024, the teacher filed an unfair dismissal application with the FWC seeking reinstatement and compensation. As the relevant criminal charges were due to be heard in April 2025, the Applicant made an application to stay the unfair dismissal proceedings until such a time as the criminal charges had been resolved.

In September 2024, Deputy President Roberts approved this request, noting that there was no serious prejudice to the employer’s case, and found in favour of allowing the Applicant the opportunity to present his case at both the criminal proceedings and before the FWC. Specifically, that the interests of justice were best served by resolving the criminal matter first.

The criminal hearing was then postponed until November 2025. Unsurprisingly, the Applicant made a further request to defer his unfair dismissal hearing, which was again resisted by the employer. The employer stated that the criminal proceedings would not necessarily determine the outcome of the unfair dismissal application as the relevant teaching restrictions may remain in place even if the Applicant is acquitted. Further to this the employer stated that the question before the FWC was whether the employer had a valid reason for dismissal at the time – according to the employer this valid reason was a suspension of his accreditation and restriction on his WWCC, which are essential criteria for the role. Deputy President Roberts noted that it is well established that a valid reason can exist, and the termination may yet be determined as harsh, unjust or unreasonable in the circumstances.

So, Deputy President Roberts again found in favour of the Applicant, citing his original reasoning, and placing emphasis on a lack of substantive changes in the situation. The criminal charges remained the same, the Applicant’s plea remained the same, the remedies sought remained the same, and the Applicant was not responsible for the delay to the criminal proceedings. So, while the delay to the unfair dismissal proceedings was undesirable, this was outweighed by the risk of injustice to the Applicant should he be required to give evidence in the Fair Work Commission prior to the criminal proceedings.

Key Take Aways

This case underscores the tensions between an employee’s right to a fair hearing and an employer’s duty to maintain a safe and compliant workplace. It also illustrates the FWC’s nuanced approach to procedural fairness, especially when criminal proceedings are ongoing.

For legal professionals, this case serves as a reminder to consider the broader implications of criminal allegations on employment status, particularly in regulated sectors like education. It also highlights how external legal processes can influence internal employment decisions.

Stay tuned for a resolution of this one, with the proceedings now expected to take place in November this year.

Mr Jamie Richards v All Saints Greek Orthodox Grammar [2025] FWC 1924 (24 July 2025)

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July 29

Compensation plus Confirmation of Coexistence of Claims Across Jurisdictions

The ‘Good’ in ‘the Good the Bad the Ugly’ from our 29 July 2025 podcast on Restraint of Trade, Part 1.

An ex-employee received a big win in an unfair dismissal case, after nearly a decade of service with a healthcare and IT recruitment agency based in Sydney.

Background

An employee had not received a pay review in 2 years, and in the current cost of living crisis, asked for what he considered a long overdue review. The Company’s director responded to this request, noting he had little choice despite the Company struggling financially. Eventually an agreement was reached for a $5,000 pay increase.

Unfortunately, this agreed pay rise was not reflected in the next pay slip. The employee enquired about the missing pay increase and was advised by the director that:

his base salary was enough;
they had not agreed on a pay rise; and
asked whether he wanted to continue working there or not.

The employee was then blocked from the company email system, meaning he was unable to respond or perform his duties. Later, the director initiated a chain of text messages which culminated in the employee being terminated, effective immediately. The employee was not paid notice of termination, his annual leave entitlements, long service leave entitlements or his commissions.

The Application

The employee lodged an unfair dismissal claim which was upheld by Deputy President Boyce. DP Boyce determined that he had been dismissed, and that that dismissal was unfair. In determining the amount of compensation DP Boyce considered that the employee would have remained employed for a further six months, if it had not been for the unfair dismissal, resulting in an award for compensation of approximately $45,000 plus super to be paid to the employee.

The employer made an application to reduce this amount due to the business’s financial hardship, and further requested any compensation be payable by instalments over a 12-month period.

DP Boyce noted that the onus falls on employers to bring relevant evidence as to the specific impacts of compensation on the viability of the business when seeking reductions. In this case, the evidence presented was unsatisfactory to establish the specific impacts the proposed compensation would have on the business. As such, no reduction was made.

Further to this, the employer failed to specify in any detail how many instalments he proposed to make, or how much the company could afford to pay in each instalment. As such, DP Boyce ordered that the compensation be paid to the Applicant across a 6-week period. Any failure to meet one of the ordered instalments would result in the entire balance being payable immediately.

Concurrent Applications in Various Jurisdictions

It was acknowledged that the Applicant had made claims in the Federal Circuit and Family Court and the NSW Industrial Relations Commission for his unpaid entitlements relating to annual leave, long service leave, unpaid commissions, and notice of termination. The Fair Work Commission noted that the current award for compensation was for unfair dismissal only, and it was separate to, and did not impact any of the other claims for entitlements payable to him under statute or contract.

Key takeaways

This decision serves to:

Reinforce the need for procedural fairness and protection of employee rights under Australian Law;
Highlight the requirement of clear and reliable evidence in such proceedings; and
Confirm that unfair dismissal rulings can coexist with separate claims for entitlements.

Ilias Kadji v Sigma Resourcing Pty. Ltd. [2025] FWC 1737 (20 June 2025)

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July 11

Heat of the Moment Resignation Questioned, but Ultimately, Dismissal Found not to be Unfair

The ‘Bad’ in ‘the Good, the Bad and the Ugly’ from our 11 July 2025 podcast on Working From Home, is a striking Fair Work Commission (FWC) decision where an organisation has successfully defended the dismissal of a worker who had issued chilling threats to his managers, despite claims the employee had resigned in the “heat of the moment.” The case offers a powerful reminder of the standards surrounding workplace conduct and resignation protocols.

Background

An employee had allegedly engaged in concerning conduct in the workplace, including:

Watching disturbing content and playing inappropriate music at work;
Regularly using female bathrooms despite being asked not to;
Accusing a co-worker of illicit and inappropriate activities;
Operating a forklift then stating he would fail a drug test; and
Stating to co-workers that he had been in prison with another volunteer for the organisation, and that that volunteer had been incarcerated for murder.

The employer scheduled a performance management meeting, in which a formal warning was to be issued. The meeting quickly unravelled, with the employee losing his temper.

The Incident

During the meeting, the employee reportedly became confrontational and threatening, inciting bikie violence and telling his managers that they “better watch their backs” and “there is a bullet with your name on it”. The incident culminated in a heated resignation, where he declared, “I’m done. I’m out of here,” and tossed his keys at management. He then collected his belongings and left.

Later, the employee sent a text message asking when he could return to work. Management confirmed via text message that his resignation had been accepted, and he would not be returning to work. The employee denied resigning and asserted that his employment had been terminated.

An application to the FWC for remedies for unfair dismissal was lodged shortly after. The employer resisted this application with a jurisdictional objection, asserting that the employee was not dismissed, rather he had resigned, and in the alternate, if there was a dismissal it was not unfair as the employment came to an end due to serious misconduct.

The Commission’s Analysis

Commissioner Schneider concluded that it was likely that a resignation did occur at the conclusion of the meeting, however, he acknowledged that the resignation had occurred in a heated moment and suggested that the employer should have provided the employee an opportunity to reconsider his resignation, after a cooling off period. He further noted that while resignations “may usually be taken as they come, in some circumstances, there arises a duty to clarify a resignation.”

After hearing competing evidence on the resignation, Commissioner Schneider noted that if a resignation had not occurred, he would be satisfied that a dismissal at the initiative of the employer had occurred. However, that dismissal was not unfair given the seriousness of the employee’s conduct at the meeting.

As such, the application was dismissed. This case serves as a timely reminder to employers that:

Heat of the moment resignations are not always final; employers should allow time for reflection after emotionally charged exchanges and seek confirmation or clarification after the fact.
Threats alone justify summary dismissal; safety in the workplace is paramount.
Emphasis on the importance of adequate documentation during performance management processes, the production of and reliance on verbal and written warnings, file notes of conversations and plans for a performance review assisted the employer in this case.

Mr Thor Dewar v Pek Care [2025] FWC 1587 (1 July 2025)

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November 28

Work Christmas Parties – Employees May Risk More Than Their Dignity

The silly season is fast approaching and the annual work Christmas parties will be starting to happen. The combination of end-of-year cheer and alcohol can create some less than ideal situations for employers. Most employers will start the new year with a ‘forgive and forget’ attitude to the embarrassing dancing or terrible karaoke singing. It is also reasonable to expect that one or two employees in any given year will drink a little more alcohol at the end of year party than they initially intended. While this may involve a loss of dignity, generally this conduct is regarded by both employers and colleagues as part of the fabric of the modern workplace. But what happens when an employee goes too far? At what point does ‘drunken cheer’ become a disciplinary issue.

Employees should be aware that their behaviour at these events may affect their employment. Their behaviour can result in the issuing of a warning, a final warning or worst-case scenario, termination of their employment, even if the event occurs after work hours.

However, employers should not discipline an employee for out of hours conduct too hastily. An employee may only be disciplined for out of hours conduct in circumstances where the situation is found to be work related.

The requirements for when conduct is work related was set out in B. Rose v Telstra Corporation Limited [1998] AIRC 1592, and are:

objectively the employee’s conduct is likely to seriously damage the employer/employee relationship;
the employer’s interests are damaged; or
the employee’s conduct was incompatible with their employee duties.

The Fair Work Commission recently provided a reminder of this outcome in the case of Mr Bradley Drake v BHP Coal Pty Ltd [2019] FWC 7444. The case involved two unfair dismissal applications of Mr Drake and Mr Bird. At their crew’s Christmas party last year, Mr Drake and Mr Bird were involved in a verbal and physical altercation with another employee, Mr Maunder. Mr Drake further admitted to making offensive comments to a Ms H, saying “do you have fake tits?” and “all the girls have them, you can’t come to [excavator] strip 44 unless you have fake boobs”. Mr Drake and Mr Bird asserted that they did not know that the party was organised by BHP or that BHP had contributed to the Christmas party. They believed it was an employee organised event and if they had known they would have acted differently.

BHP commenced an investigation into the situation after Mr Maunder made a complaint that he had been punched by two employees at the Christmas party. During their interviews both Mr Drake and Mr Bird said they could not remember if they had punched Mr Maunder. Following the investigation BHP found that both Mr Drake and Mr Bird had punched Mr Maunder and they were both terminated. Mr Maunder was also terminated but requested the opportunity to resign which was agreed to.

Deputy President Asbury found on the balance of probabilities that Mr Bird did not punch Mr Maunder but was involved in a verbal altercation with Mr Maunder which ended in both Mr Bird and Mr Maunder grabbing each other by their shirts. It was found, on the balance of probabilities, that Mr Drake started the verbal altercation with Mr Maunder and that Mr Drake punched Mr Maunder more than once. Additionally, Deputy President Asbury held that the Christmas party had the requisite connection to BHP and that it was more probable than not that Mr Drake and Mr Bird knew that the Christmas party was organised by BHP. Deputy President Asbury provided that if this was incorrect there was sufficient factors to establish that the event was work related:

90 people attended, consisting of 60 employees and 30 family members;
they were gathered at one venue;
they were gathered for a common purpose, to celebrate Christmas;
the employer/employee relationship will be seriously damaged when an assault between two employees happens in a public place in front of other employees;
where a large group of employees gather to drink alcohol in a public place in a town where BHP is a large employer the action of employees can damage the interests of BHP; and
members of the public being present will increase the damage to BHP’s interests.

Deputy President Asbury stated that employees should not need to be told that when they gather in large numbers in a public place after work hours that their employment may be at risk if they get into altercations, either with another employee or a member of the public.

It was held that Mr Drake’s dismissal was valid and not unfair. Mr Drake had breached BHP’s Charter of Values and the Code of Business Conduct. Whereas, Mr Bird’s dismissal was held to be unfair as it was harsh, unjust and unreasonable. It was harsh because it was disproportionate to the gravity of Mr Bird’s conduct, Deputy President Asbury stated that the conduct, verbal altercation and grabbing Mr Maunder by the shirt, amounted to a final warning, and the dismissal affected Mr Bird’s personal and economic situation. It was unjust because Mr Bird was not guilty of the misconduct alleged to be the reason for his dismissal and because BHP incorrectly found that Mr Bird had punched Mr Maunder. It was unreasonable as the inferences used by BHP to find that Mr Bird had punched Mr Maunder were not available. An order for Mr Bird to be reinstated was issued. However, Mr Bird’s conduct at the Christmas party and during BHP’s investigation resulted in a deduction of 75% in the order for lost remuneration.

Take Home

Employees should be aware that their actions at the work Christmas party, or other work functions, can affect their employment.

Employers should carefully consider the criteria to establish that the function is work related before disciplining an employee due to conduct at out of hours functions. Employers should also take measures (including undertaking an investigation if appropriate) to substantiate any claims of employee misbehaviour, as well as providing appropriate procedural fairness to any employee throughout any disciplinary process. Procedural fairness requirements include putting the employers concerns relating to the employee’s conduct to the employee, and giving them an opportunity to respond prior to making any final decision, and providing the employee with the opportunity to have a support person present at all meetings in which termination of employment may be an outcome.

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September 19

Enterprise Agreements – Better Off Overall Test

There are two steps to obtaining approval for a new enterprise agreement. The first step is for employees to vote on whether they approve of the proposed enterprise agreement. If the majority of employees vote in favour of the new enterprise agreement the agreement progresses to the second step.

The second step in approving a new enterprise agreement is obtaining approval from the Fair Work Commission (the FWC). One of the key factors that the FWC needs to be satisfied of before approving a proposed enterprise agreement is whether the enterprise agreement passes the Better Off Overall Test (the BOOT).

So what is the BOOT? What does better off overall mean? Who must be better off?

Legislative Authority

The BOOT is outlined in section 193 of the Fair Work Act 2009 (Cth) (the FW Act). To pass the BOOT employees and prospective employees covered by the proposed enterprise agreement need to be better off overall when compared to the relevant award/s. It is a consideration of the terms of the enterprise agreement that are more and less beneficial to employees compared to similar terms in the relevant award/s to determine if employees are better off overall. When undertaking the BOOT the FWC ignores any individual flexibility arrangements that the employer may have with any employees covered by the proposed enterprise agreement. The time for determining if employees are better off is the time the application is made with the FWC, known as the test time.

What is Better Off Overall?

Recently the FWC has provided additional clarification on the BOOT in BOC Limited (Gas & Gear – Victoria) Certified Agreement 2019 [2019] FWCA 5544. Deputy President Colman reviewed the application by BOC Limited to approve the proposed enterprise agreement. The National Union of Workers (the NUW) argued that the enterprise agreement did not pass the BOOT for prospective employees. Under the proposed enterprise agreement future employees were unable to accrue rostered days off for overtime worked. The FWC provided calculations that the higher rate of pay offered to employees meant that prospective employees were better off financially under the proposed enterprise agreement. The NUW further argued that future employees were unable to have the ‘intangible’ or ‘lifestyle’ benefits that came with taking RDOs or accruing time off in lieu for overtime worked and that this loss of ‘intangible’ or ‘lifestyle’ benefits should be taken into consideration when conducting the BOOT. Deputy President Colman stated that it was not inherently more beneficial to take RDOs and time off in lieu compared to receiving overtime payments. This was a subjective consideration. Individual employees would have different views on whether RDOs and time off in lieu compared to a higher rate of pay was more beneficial.

Deputy President Colman further stated that the BOOT focuses on objective and verifiable considerations. The assessment of whether an employee is better off under the proposed agreement is not a line by line comparison. Nor is it against the FW Act for an enterprise agreement to trade off conditions. The test is whether employees are better off overall under the enterprise agreement as a whole. The BOOT does not take into account the personal preferences of each individual employee. Deputy President Colman held that under the proposed enterprise agreement current and prospective employees were better off. The higher rate of pay outweighed the loss of ability to accrue RDOs and take days off in lieu of overtime.

Who has to be Better off Overall?

Section 193 of the FW Act sets out that to pass the BOOT the enterprise agreement is to be better off overall for ‘each award covered employee, and each prospective award covered employee’. FW Act sections 193(4) and (5) define who is an award covered employee and who is a prospective award covered employee. An award covered employee is an employee that is both covered by the proposed enterprise agreement and who at the test time is covered by a current modern award, the award covers the employee’s duties and the award covers their employer. A prospective award covered employee is a person if at the test time could have been employed by the employer and meets the requirements of an award covered employee. Use of the word ‘each’ means that all award covered employees and prospective award covered employees must be better off under the new enterprise agreement.

An example of how this is applied is seen in Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited; the Australian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited [2016] FWCFB 2887. This case concerned an appeal against the approval of the Coles Store Enterprise Agreement 2014-17. The appeal was made by Mr Hart, an employee of Coles, and the Australasian Meat Industry Employees Union (the AMIEU). The approved enterprise agreement had a higher hourly rate of pay compared to the award, but it had lower penalty payments for evenings, weekends and public holidays. The Full Bench of the FWC reviewed direct wage comparisons of certain employees who were most adversely affected by the enterprise agreement. The Full Bench also took into consideration other benefits under the approved enterprise agreement, including:

non-contingent benefits, such as additional penalties for ordinary hours, rest and meal breaks and payment while on annual leave;
wage increases;
benefits contingent on choice, such as pre-approved leave arrangements, blood donor leave and defence service leave;
benefits contingent on circumstances, such as accident makeup pay, carer’s leave, compassionate leave, emergency services leave, natural disaster leave and redundancy pay; and
unquantifiable benefits, such as enhanced wellbeing, supporting non-work activities, domestic violence support and care responsibility support.

The Full Bench outlined certain cautions when considering the other benefits, mainly the difficulty in determining the value of the benefits as not all employees would access these benefits. Reasons for not accessing the benefits included:

certain employees would not remain employed by Coles for the whole period of the agreement and so would not receive all the wage increases;
choosing not to take the benefit; or
their particular circumstances meant they were unable to take the benefit.

The Full Bench held that the agreement did not pass the BOOT. Not all employees were better off under the agreement. Employees who primarily worked during the lower penalty rate times, part-time and casual employees, would experience a significant monetary loss. Additionally, not all employees would receive the other benefits.

This case is consistent with BOC Limited (Gas & Gear – Victoria) Certified Agreement 2019 [2019] FWCA 5544 outlined above. In forming their decision, the Full Bench did not consider the personal preferences of each employee for each benefit. The Full Bench conducted an objective assessment of better off overall for all employees.

Take Away

The BOOT is a test used by the FWC to ensure employees are not disadvantaged compared to other employees covered by the relevant award/s. The FWC compares the proposed enterprise agreement against the relevant award to ensure employees and prospective employees are better off. It is not a line by line comparison of each condition to determine whether employees and potential employees are better off. It is an objective test to determine whether employees are better off overall under the proposed enterprise agreement compared to the applicable award. Conditions under a proposed enterprise agreement can be traded off, if overall the employees are better off.

Each employee and prospective employee who is covered by a current award, whose duties are covered by an award and whose employer is covered by an award must be better off under the proposed enterprise agreement. It is not the majority of those employees that have to be better off overall, all employees are to be better off. However, when making their decision the FWC does not consider the subjective personal preferences of each employee.

For a step-by-step guide on the bargaining process please see the article by my colleague Helen Carter.

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