Unfair Dismissal: FWC Rejects Employer’s Grounds in Bullying Case

By Gaby Grammeno Contributor

The supervisor was employed as a leading hand carpenter with a building company, supervising his own crew.  

A week into his employment, management found his conduct inappropriate and unacceptable when he was said to have damaged equipment and pointed a nail gun near another worker’s head. He was given an official ‘first and final warning’, and the company director warned all employees that that if they blatantly disrespected other employees’ property and he had to step in to resolve the matter, extreme cases might result in termination of employment. 

In September 2024 the director began a review of the company’s carpentry business, as he was concerned it might be underperforming financially and he’d received reports of conflict and mismanagement in the team. 

As part of this review, the supervisor was asked to carry out performance reviews for his team members and provide reports. The director followed up with each team member about these performance reviews. Though most of the feedback he received about the supervisor was positive, he was left feeling that there was an underlying issue in the team that no one wanted to speak about. 

In January 2025 the director became aware of an Instagram post featuring a photo of the supervisor, apparently working for another builder.  

On further investigation he found that the supervisor – who’d been neglecting some of his duties – had been contracting directly to the other builder and using several of the employer’s other employees in working for the other business. 

On 10 February, the director met with the supervisor to discuss his dissatisfactions. During the meeting he found the supervisor dishonest, and lost trust and confidence in him. The director believed it was agreed that the supervisor’s employment would continue for another six weeks. 

A follow-up letter confirmed the remaining period of employment ‘and then we agree to amicably part ways’. 

After the meeting the director received complaints about the supervisor’s bullying and abusive behaviour towards his team members. Two said they’d resign if they couldn’t feel safe at work, and one actually did resign on 11 February, saying he’d been ill-treated by the supervisor. 

The director also found that the supervisor had falsified his timesheets on occasion, and used his company vehicle for extensive personal travel, contrary to company policy. 

On reviewing the supervisor’s timesheets and more discussions with other worker, the director formed the view that the supervisor had been in breach of his employment contract and had engaged in serious misconduct. This prompted him to arrange another meeting with the supervisor on 12 February, which was also attended by the construction manager. 

At the meeting, the director told the supervisor of his complaints and said his serious misconduct warranted immediate termination of his employment. 

He emailed the supervisor the same day setting out ten reasons for sacking him, including verbal abuse, bullying and physical threats to his crew members, defrauding the business with inaccurate timesheets and overtime not completed, using business equipment, vehicles, fuel and personnel for the other builder.  

The supervisor’s view was that his employment contract didn’t preclude him from doing out-of-hours work for another employer, he’d only been doing a bit of ‘cash work’ after hours, and he hadn’t brought the subcontracting opportunities to his employer’s attention because there was plenty of inhouse work for the carpentry team at the time.  

The supervisor believed he’d been sacked unfairly and applied to the Fair Work Commission for an unfair dismissal remedy.  

In the Commission 

The supervisor was adamant that during the 12 February meeting, the director had only mentioned a generalised complaint by an unidentified employee about an unspecified incident. He said that he enjoyed a good relationship with all workers, and that the allegations of bullying and harassment of other staff, damaging their equipment of making physical threats were never raised with him before his dismissal.  

He denied the allegations of timesheet fraud, using the company vehicle for extensive personal use and consuming alcohol while driving the company vehicle. 

He said he’d told the boss of his second job in December 2024, that he needed it to make ends meet during his wife’s maternity leave, and that his boss didn’t object or make further enquiries. Even at the 10 February meeting the director evidently hadn’t believed it warranted immediate dismissal, as he said an amicable separation after six weeks was agreed.  

On cross-examination of the director and the construction manager during the hearing, the concessions made and unreliable recollections of the meeting led Deputy President Ian Masson to conclude that the matters listed in the termination email were not put to the supervisor during the 12 February meeting, and that the decision to sack the supervisor was made before that meeting.  

Clearly, the supervisor was not notified of a valid reason before the decision was made to sack him, and he’d had no opportunity to respond to the allegations of misconduct, explain his behaviour or try to persuade the employer that dismissal was not appropriate. This was a significant procedural failure, and weighed strongly in favour of a finding that the dismissal was unfair. 

Deputy President Masson also accepted that there was nothing in the supervisor’s contract prohibiting work for another employer, so he hadn’t been in breach of his contract and the employer could not rely on this as a ground for immediate dismissal. 

No evidence was provided that the timesheet fraud had occurred, and the employer had not properly investigated the allegations of bullying, property damage, abusive and threatening behaviour or given the supervisor the chance to tell his side of the story, so taking the allegations at face value was also not a reasonable ground for dismissal. 

Deputy President Masson did accept that the supervisor’s use of the company vehicle when working for the other builder was in breach of the company’s vehicle use policy. However, he took the view that this misconduct was not serious enough to justify summary dismissal. 

These considerations led the Deputy President to the conclusion that the dismissal was not supported by a valid reason, and consequently, not consistent with Small Business Fair Dismissal Code. 

He found the dismissal unjust, unreasonable and therefore unfair. 

It was not appropriate for the supervisor to be reinstated because the business no longer employed a carpentry team. The Commission ordered the employer to pay the worker $$7,335 (six weeks’ wages less 25% for misconduct) in lieu of reinstatement. 

What it means for employers 

If dissatisfactions with a worker’s conduct and job performance prompt an impulse to terminate the person’s employment, it pays to get advice on how to avoid the many pitfalls in the termination process. Call Business NSW’s Work Advice Line on 13 29 59 for help in deciding how to proceed. 

Read the decision 

Cox v Hill and Muller Pty Ltd [2025] FWC 1653 (17 June 2025)