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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March 12

Toot Toot, Chugga Chugga, Big Fat Lie

Being a working parent, whether it is full-time, part-time or as a casual, can be hard. There is the juggling act between an employee’s duties to their employer and wanting to give their children every opportunity and experience before they are too old to not like them anymore. In the workplace there are still some negative perceptions around working parents, whether they are actual or imagined. For example, working parents can feel guilty for requesting a day of annual leave to take their child to a children’s concert, such as the Wiggles or Justine Clarke. Some parents take the risk of having a ‘sickie’ to alleviate this guilt. However, working parents who do this risk their jobs. The case of Sean Mamo v Robjan Pty Ltd t/a Yarrawonga Toyota [2019] FWC 7900 is an example of a working father who took this risk and lost.

Sean Mamo v Robjan Pty Ltd t/a Yarrawonga Toyota [2019] FWC 7900

Mr Mamo, a father of a young son, had his claim for unfair dismissal rejected by the Fair Work Commission (the FWC). Mr Mamo claimed a day of personal/carer’s leave informing his employer that his son was unwell. However, Mr Mamo’s son was in fact not sick. The reason for the leave was so Mr Mamo could take his son to a Wiggles concert. Mr Mamo believed any request for annual leave would be rejected. A photograph of Mr Mamo and his son at the Wiggles concert was posted to social media and shown to Mr Mamo’s employer. When asked about his leave Mr Mamo first denied that he had taken his son to a Wiggles concert. However, when shown the photo Mr Mamo admitted to falsely claiming personal/carer’s leave.

Deputy President Colman held that Mr Mamo had not been unfairly dismissed. It was not an unfair dismissal because his employer had a valid reason for dismissal. Falsely claiming personal/carer’s leave amounts to misconduct because it is a breach of an employee’s duty of good faith, it obtains a financial advantage by deception and claims a legitimate right to be absent from work when there is none based on the facts. Mr Mamo deliberately misleading his employer was of sufficient gravity to warrant his dismissal.

What are the legitimate reasons for taking paid personal/carer’s leave and what is an employee’s duty of good faith?

Personal/Carer’s Leave

Paid personal/carer’s leave is one of the 10 National Employment Standards in the Fair Work Act 2009 (Cth) (the FW Act). An employee is entitled to 10 days of paid personal/carer’s leave per year. Any unused paid personal/carer’s leave is accrued from year to year. Section 97 of the FW Act outlines that an employee is only able to take paid personal/carer’s leave if:

they themselves are sick or injured; or
to provide support or care for a member of the employee’s immediate family or household because that member is sick, injured or if there is an emergency.

Under section 107 of the FW Act an employer can request from the employee proof of the reason for the leave. This is usually in the form of a medical certificate but can also be provided in a statutory declaration.

In Mondelez v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) [2019] FCAFC 138 the Federal Court outlined the principles for paid personal/carer’s leave. Particular to this situation the Federal Court stated that a day taken for paid personal/carer’s leave is an authorised absence from work if, and this is the key, only if an employee is sick or injured or a member of their family or household is sick, injured or involved in an emergency. An employee is unable to take paid personal/carer’s leave for any other reason, such as attending a Wiggles concert.

Duty of Good Faith

Though not expressly written in an employment contract there are certain duties employers and employees owe to each other that are implied by law into the employment contract. One of these duties is the duty of good faith. For employees the duty of good faith requires an employee to act faithfully in the performance of their duties and to act for the benefit of their employer. Employees are also not to act in a way that would or would likely damage the trust and confidence between the employer and employee. Dishonestly taking paid personal/carer’s leave is not acting faithfully and would damage the trust and confidence that an employer has with their employee if the deception is discovered.

Take Home

It is important for employees to understand what paid personal/carer’s leave can and cannot be used for. If employee’s dishonestly use this leave, they risk being terminated for misconduct. Though it might be tempting for an employee to have a ‘sickie’ in order to take their children to a Wiggles concert, or for some other personal reason, they risk their employment. If employers are concerned about any paid personal/carer’s leave taken by employees, they are able to ask for evidence of the reason for taking the leave.

If you are interested in reading more about the interpretation of a day for paid personal/carer’s leave please see my previous blog.

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February 20

Are Customer Surveys an effective Performance Assessment Tool?

Determining what tools to use to assess how an employee’s performance should be evaluated can be tricky for employers. In some professions and industries, it can be an easy decision. For example, employees in sales can be assessed based on the dollar amount of sales each month, or employees in manufacturing can be assessed on the quantity of items produced. In professions and industries that primarily provide customer service, the decision on how an employee’s performance can be evaluated becomes tricky.

Customer service cannot be quantified like sales and production. For these professions and industries, employers may choose to rely on customer feedback to evaluate employee performance. However, employers risk the employee making an unfair dismissal claim for using this method if the way customer feedback is collected and evaluated is not carefully considered.

This was shown in a Fair Work Commission (the FWC) case where an employee’s performance was assessed based upon the responses to the company’s customer service surveys.

Mr Kris Brennan v ASG Brisbane Pty Ltd T/A Audi Indooroopilly [2019] FWC 7630

Mr Brennan was employed as a Service Advisor for Audi Indooroopilly. Service Advisors are the contact point for Audi customers who require or want mechanical work for their vehicles. Mr Brennan’s performance was assessed using the average score of the five-question customer service survey, known as the Customer Experience Marker (the CEM). Mr Brennan and the other Service Advisors at Audi Indooroopilly were required to have a CEM score above the national average for each surveying month. In February 2019 Mr Brennan received a first and final warning letter. The warning letter set out that if Mr Brennan’s CEM score did not improve, his employment may be terminated. Mr Brennan’s CEM score continued to be below the national average. On 22 March 2019 Mr Brennan attended a meeting with Mr Nicholson, Aftersales Manager, who provided Mr Brennan with a letter of termination.

When determining that Mr Brennan was unfairly dismissed Commissioner Hunt disapproved of the requirement for the Service Advisors to have a CEM score above the national average. Commissioner Hunt set out the following deficiencies in relying on the CEM:

not all customers completed the customer service survey;
the questions in the survey concerned the overall service received by customers not only the service and delivery of services of the Service Advisors;
there could be a multitude of reasons for a low CEM score and not just for reasons caused by the Service Advisor;
requiring Service Advisors to be in the top 50% of all Audi Service Advisors disregards the fact that 50% of Service Advisors must be in the bottom 50%; and
just because a Service Advisor was in the bottom 50% of all Service Advisors did not mean that the Service Advisor’s performance of their duties was not satisfactory.

Commissioner Hunt held that there was no valid reason for dismissal due to the deficiencies in relying upon the CEM score for evaluating Mr Brennan’s performance. Mr Brennan was awarded 12 weeks wages minus two weeks for the payment of notice he received on his termination.

Tips

Employers should be aware of the deficiencies when relying upon customer surveys to assess employee performance. Not all customers will complete customer surveys. Those that do are usually customers who have had a negative experience and wish to lodge a complaint. There is also the risk that when completing the surveys, customers may be influenced by other factors or services received and not just the services provided by a particular employee.

Customer surveys should be used with caution to assess employee performance. They should not be the only assessment tool used when evaluating employee performance. Relying only on the customer surveys risks the chance of a successful unfair dismissal claim resulting in compensation for the terminated employee.

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