1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Samrat Kc v Eat House King Square Pty Ltd (U2025/16174) DEPUTY PRESIDENT BINET PERTH, 10 FEBRUARY 2026 Application for an unfair dismissal remedy – dismissal in line with Small Business Fair Dismissal Code – application dismissed. [1] On 8 October 2025, Mr Samrat Kc (Mr Kc) made an application (Application) to the Fair Work Commission (FWC) pursuant to section 394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Eat House King Square Pty Ltd (Eat House). [2] Mr Kc was employed by Eat House as the sole chef in its eatery within the Perth Central Business District (CBD). Mr Kc’s employment ended after a verbal exchange between Mr Kc and the manager of Eat House. [3] On 24 October 2025 Eat House filed a Form F3 - Employer’s response to unfair dismissal application raising the jurisdictional objection that it was a small business employer for the purposes of the FW Act, and that it complied with the Small Business Fair Dismissal Code (SBFD Code).1 Eat House subsequently raised a further jurisdictional objection that Mr Kc was not dismissed but in fact and in law, had repudiated his employment. [4] Eat House declined to participate in a conciliation conference with a staff conciliator and the matter was allocated to my Chambers for determination. On 25 November 2025 and 2 January 2026, the parties participated in conciliation however the matters in dispute could not be resolved. [5] Taking into account the parties’ wishes and circumstances, a hearing, rather than a determinative conference, was determined to be the most effective and efficient way to determine the Application. Consequently, the Application was listed for a hearing in Perth on 5 January 2026 (Hearing). [2026] FWC 394 DECISION [2026] FWC 394 2 [6] Directions for the filing of materials in advance of the Hearing were issued to the parties on 25 November 2025 and amended on 5 December 2025, 8 December 2025 and 9 December 2025 (Directions). Permission to be represented [7] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.2 [8] Eat House sought permission to be represented at the Hearing. [9] Relevantly, section 596(1) of the FW Act provides that a party may only be represented in a matter before the FWC by a lawyer or paid agent with the permission of the FWC. Section 596(2) provides that the Commission may only grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission if: “(a) it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or (b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or (c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.” [10] The decision to grant permission is not merely a procedural step but is one which requires consideration in accordance with section 596 of the FW Act.3 [11] The decision to grant permission is a two-step process. First, it must be determined if one of the requirements in section 596(2) have been met. Secondly, if the requirement had been met, it is a discretionary decision as to whether permission should be granted.4 [12] On the question of representation, Eat House filed detailed submissions. In summary, those were that: a. The jurisdictional objections to the Application raise contentious questions of law and fact, and that the granting of leave to be represented would assist in the efficiency of the proceedings. b. Mr Tony Hannawe, the owner of the business (Mr Hannawe) would not be able to effectively represent Eat House and the efficiency of proceedings would be compromised if Mr Hannawe, was required to cross-examine Mr Kc and deal with the legal issues arising from the jurisdictional objections given his lack of legal knowledge and advocacy skills, his inability to adequately comprehend the authorities cited by Mr Kc and his emotional investment in the contested facts. c. In the preparation of his own materials, Mr Kc has demonstrated a superior comprehension of the relevant legal principles, which exceeded Mr Hannawe’s capacity such as that it would be unfair for Eat House to only be represented by Mr Hannawe. [13] On the question of representation Mr Kc submitted that: [2026] FWC 394 3 a. The legal issues to be determined were without complexity and that conflicting witness statements was not unusual in unfair dismissal applications. b. The fact that he had engaged with the resources provided by the FWC and produced comprehensive materials without legal representation should not be relied on in order to grant leave to a party who had chosen not to do so. c. Fairness does not require permission merely because one party is better prepared. Granting permission on that basis would undermine the statutory presumption that parties ordinarily represent themselves. d. It was unfair to grant Eat House the procedural advantage of representation in circumstances where Eat House had failed to comply with Directions. [14] The Hearing requires the determination of a jurisdictional objection. [15] As observed by Senior Deputy President Richards in CEPU v UGL Resources Pty Ltd5: “[23] It appears to me that where the Respondent (in this case) seeks to agitate a jurisdictional issue then it would follow that representation by a lawyer would be a reasonable course. Jurisdictional issues by their nature are prospectively complex in their own right, and/or else may require a degree of familiarity with court and tribunal jurisprudence or authorities. [24] In the situation currently before me, permission to appear for purposes of any jurisdictional considerations appears to me to be justified. That is, by granting permission for Mr Copeland to appear the efficiency with which the jurisdictional issue is dealt with would be assisted. [25] It also appears to me that permission to appear in the substantive considerations should be granted to Mr Copeland for other reasons. Where jurisdiction is in question, it is important in any subsequent considerations to give close regard to the boundaries of the matters subject to the dispute and any proposed remedy. In such circumstances, a lawyer familiar with jurisdictional argument would ensure the matter would be dealt with more efficiently than would otherwise be the case.” [16] I am satisfied that the nature of the jurisdictional objection creates complexity in the determination of this Application and that the granting of permission for Eat House to be represented will ensure that the relevant legal principles are properly ventilated. [17] Given the complexity arising from the contested evidence tendered and Mr Hannawe’s personal and financial investment in the outcome of these proceedings I am satisfied that the matter may be dealt with more efficiently if permission to be represented is granted. [18] In respect to section 596(2)(b) of the FW Act, ‘effectively’ has been found to mean that: 6 “… the person must be unable to represent himself, herself or itself in a manner that creates a “striking impression”, or which has an “impressive” effect or which is “powerful in effect”.” [2026] FWC 394 4 [19] I am satisfied that Mr Hannawe is unable to represent the business in a manner that creates a ‘striking impression’ or is ‘powerful in effect’. [20] The FWC provides extensive resources on its website in both written and video format in relation to the conduct of proceedings. Before the Hearing commenced, I explained the Hearing process to Mr Kc. The proceedings were conducted without undue formality. Mr Kc was provided with frequent opportunities to seek adjournments at the Hearing. [21] In accordance with the Directions, Eat House filed written submissions in relation to the Jurisdictional Objection and the merits of the Application which detailed the relevant legal principles. This provided Mr Kc with the opportunity to familiarise himself with the relevant legal principles in advance of the Hearing. [22] The evidence in chief was given by way of witness statements filed in advance of the proceedings. Mr Kc, therefore, had the opportunity to prepare any cross-examination questions well in advance of the proceedings. [23] Having considered the submissions of both parties, leave was granted to Eat House to be represented pursuant to section 596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter. [24] At the Hearing, Mr Liam Nicholls (Mr Nicholls), a barrister from Francis Burt Chambers, represented Eat House. Mr Kc represented himself. Evidence [25] The Directions required the parties to file their witness’ evidence-in-chief in advance of the Hearing. [26] In accordance with the Directions, Mr Kc filed two witness statements setting out his evidence in chief.7 [27] At the Hearing, Mr Kc gave further oral evidence and was cross-examined by Mr Nicholls. [28] In accordance with the Directions, Eat House filed witness statements setting out the evidence in chief of the following witnesses: a. Mrs Crystal Hannawe8 (Mrs Hannawe) – Mrs Hannawe is the manager of Eat House and the wife of its owner Mr Hannawe. b. Mr Hannawe9 – Mr Hannawe is the owner of Eat House and is in charge of its day-to- day operations. c. Ms Taylah Wilson (Ms Wilson)10 – Ms Wilson is the stepdaughter of Mr Hannawe and the daughter of Mrs Hannawe, and works at the counter in Eat House. [29] Ms Wilson became seriously ill the night before the Hearing and was admitted to hospital. She underwent surgery on the day of the Hearing. Mrs Hannawe was present with her in the hospital. As a consequence, neither witness was able to attend the Hearing and be [2026] FWC 394 5 cross-examined. As a consequence Eat House sought leave to withdraw their witness statements from evidence. Ultimately, this request was not opposed by Mr Kc. [30] Mr Hannawe gave further oral evidence at the Hearing and was cross-examined by Mr Kc. [31] The parties jointly prepared and filed a digital court book containing the evidence and submissions of the parties prior to the Hearing (DCB). The DCB was admitted at the Hearing as a single exhibit and marked ‘Exhibit DCB’. [32] In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties, even if it is not expressly referred to within the reasons for this decision. Background [33] Mr Hannawe, Mrs Hannawe, and Ms Wilson operate a small fast-food outlet called Eat House in the Perth CBD. Mr Kc commenced permanent employment as a chef at Eat House in or around April 2023.11 [34] Mr Kc was employed as the sole chef and was responsible for all food preparation and cooking. According to Mr Kc, he was the only employee with the necessary food handling certification who could prepare food for sale. Mr Kc says that Mr Hannawe did not have the necessary qualifications. 12 [35] During his employment, Mr Kc was covered by the Fast Food Industry Award 2020 (Award). Mr Kc had been previously employed by Mr Hannawe in other fast-food businesses.13 [36] Mr Kc was rostered to work from 6:30am to 1:30pm, from Monday to Friday.14 [37] At the time of the events which led to the cessation of his employment Eat House employed four permanent employees, Mr Hannawe, Mrs Hannawe, Ms Wilson, Mr Kc and two casual kitchen hands.15 [38] On 22 September 2025, a verbal altercation occurred between Mr Kc, a kitchen hand and Mrs Hannawe. Mr Kc provided inconsistent evidence as to what occurred during that altercation. [39] In the Application filed on 8 October 202516, Mr Kc originally described the altercation as follows: “The female owner walked in grabbed a few tomatoes from the fridge and as a passing comment told the dishwasher to clean the cutlery properly. The dishwasher was unaware of the fact and asked me what was said. I repeated to him what was said by the owner. The female owner than yelled from across pass saying what we were talking about and why I was laughing. I calmly told her that I asked the dishwasher to clean cutlery thoroughly. She then went on a rant about us talking and laughing about her which is untrue. I asked her what her problem was to which she replied with "you are the f****g [2026] FWC 394 6 problem”. I told her I would note tolerate such language or behaviour. Soon, the husband(owner) joined in and asked me to leave and said I needed to go. He made little to no attempt to calm his wife when she was throwing a tirade mid service in front of staff and customers alike. However, he was quick to reprimand and let me know what he would not tolerate me talking back to them, when I just stood up for myself.” I could see this coming ever since I questioned them about my pay, annual leave, super and loading arrangements.” [40] In his submissions filed on 3 December 202517, Mr Kc describes the incident differently claiming that he was instructed to leave because he raised issues about the terms and conditions of his employment on 22 September 2025, rather than because of his altercation with Ms Hannawe: “On 22 September 2025 I raised concerns about unpaid wages, lack of entitlements and wage manipulation during a confrontation at work. In response Mr Hannawe told me to “f&*%ing leave” and that I “had to go” I said: “If that’s what you want, I will leave”.” [41] In his witness statement filed on 5 December 202518, Mr Kc again changed his evidence as to what was said during the exchange on 22 September 2025 stating that: “4. On 22 September 2025, Tony verbally told me “you are finished” which I understood as immediate dismissal”. [42] In the extract from the Application above in paragraph [39], Mr Kc asserted that he replied ‘calmly’ to Mrs Hannawe. At the Hearing, Mr Kc conceded that he swore at her telling her to ‘f&*%k off”.19 [43] In the materials filed by Mr Kc prior to the Hearing, Mr Kc implied that he left the workplace immediately because Mr Hannawe told him he was dismissed. However, in his subsequent materials, Mr Kc conceded that he in fact did not leave the workplace but had remained and completed his shift. [44] Mr Hannawe describes the events which occurred on 22 September 2025 as follows: “6. On 22 September 2025 at about 1:00pm, there was an exchange between the applicant, my wife and the causal kitchen hand, Taki, about the cleanliness of the cutlery in the kitchen. 7. The applicant made some indistinct remarks and spoke to Taki the kitchenhand, in their native language. 8. My wife did not understand what was said between the applicant and Taki. 9. The applicant turned to my wife there was an exchange between them the gist of which I did not catch except I heard the words: “F*** off” being spoken. 10. I went to speak with the applicant when I heard him swearing at my wife, his boss. [2026] FWC 394 7 11. I said to the applicant words to the effect: "You need to leave the shop for the day". The applicant said: "I'm not leaving. You'll have to call the cops to get me out of here." There then followed an exchange between us about the applicant claiming that I owe him unpaid wages, which I denied and still deny. 12. The applicant did not leave the work premises as I asked him to do and finished his shift at 2:00pm. 13. Later that afternoon, my other kitchenhand, Kavi, told me, that the applicant had come back to the shop and taken all of his belongings out of the work premises which he had never done before.”20 [45] Later the same night, Mr Hannawe sent Mr Kc the following text message:21 “Hey I know you took all your stuff from the shop just let me know if your not coming in tomorrow so I can organise myself.”22 [46] Mr Kc did not reply. [47] Mr Kc did not turn up for his rostered shift at 6:30am the next day.23 At 6:37am, Mr Hannawe sent another text to Mr Kc:24 “Are u coming” [48] Mr Kc did not reply. [49] At 1:48pm on 23 September 2025, shortly before Mr Kc’s shift was scheduled to end, Mr Hannawe sent an email to Mr Kc informing him that his employment had been summarily terminated for serious misconduct as follows (Termination Email):25 “The decision has been made following your: 1. Failure to attend your scheduled shift on 23 September 2025 without notice; and 2. Inappropriate behaviour that constitutes misconduct.” [50] Mr Hannawe says he did so because he believed Mr Kc’s conduct in removing his belongings from the shop and not replying to his texts indicated that Mr Kc was not coming back to work, leaving the business without a chef, alongside Mr Kc’s behaviour the day earlier, constituted serious misconduct. Mr Hannawe says he was unaware until he subsequently sought legal advice that he did not need to dismiss Mr Kc as Mr Kc had already abandoned his employment.26 [51] Mr Hannawe says that the inappropriate behaviour he refers to in the Termination Email was as follows:27 a. Mr Kc routinely arriving late for work without warning. b. Mr Kc refusing to take scheduled breaks. c. Mr Kc leaving the workplace during the course of his shift to purchase additional supplies notwithstanding being instructed by Mr Hannawe to send a kitchen hand instead. [2026] FWC 394 8 d. Mr Kc refusing to follow directions given to him by Mrs Hannawe or any other female staff members. e. Mr Kc threatening Mr Hannawe with a metal meat mallet and being restrained by a kitchen hand. f. Mr Kc rolling his eyes and sighing when customers placed orders. g. Mr Kc taking personal phone calls during the course of his shift. h. Mr Kc storing empty recycling bottles unhygienically contrary to direction. [52] At the time his employment ended, Mr Kc’s weekly income was $968.80. [53] The Mr Kc seeks an order for compensation as a remedy. Is Mr KC protected from unfair dismissal? [54] An order for compensation may only be issued if: a. Mr Kc was unfairly dismissed; b. Mr Kc was protected from unfair dismissal at the time of his dismissal; and c. Mr Kc made the Application within the time period prescribed in the FW Act. [55] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed, the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period and one or more of the following apply: a. a modern award covers the person; b. an enterprise agreement applies to the person in relation to the employment; c. the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the Fair Work Regulations 2009 (Cth) is less than the high income threshold. [56] For the purposes of Part 3-2 of the FW Act, a person is an employee if they are employed by a national system employer. There is no dispute regarding this and I am satisfied that Eat House is a national system employer and Mr Kc is therefore, a national system employee. [57] Depending on the number of employees employed by an employer, the minimum employment period is either six or twelve months. Mr Kc commenced permanent employment with Eat House on or before 11 September 2023.28 Mr Kc employment ended on or around 23 September 2025.29 I am therefore satisfied that at the time his employment ended, Mr Kc was an employee who had completed a period of employment of at least the minimum employment period. [58] There is no dispute, and I am satisfied, that the Award covered Mr Kc’s employment and that Mr Kc earned less than the high income threshold at the time his employment came to an end. [59] Section 394(2) requires an application to be made within 21 days after the dismissal took effect. [2026] FWC 394 9 [60] It is not disputed and I find that the Mr Kc was dismissed from his employment on or after 22 September 2025 and made the Application on 8 October 2025. I am therefore satisfied that the Application was made within the period required in subsection 394(2) of the FW Act. [61] There is no dispute and I am satisfied that Mr Kc is therefore protected from unfair dismissal. Was Mr Kc unfairly dismissed? Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that: a. the person has been dismissed; b. the dismissal was harsh, unjust or unreasonable; c. the dismissal was not consistent with the SBFD Code, and d. the dismissal was not a case of genuine redundancy. Has Mr Kc been dismissed? [62] The term “dismissed” is defined in section 386 as follows: “386 Meaning of dismissed (1) A person has been dismissed if: (a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or (b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.” [63] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. [64] The expression ‘termination at the initiative of the employer’ is a reference to a termination that is brought about by an employer and which is not agreed to by the employee.30 A termination is at the employer’s initiative when the employer’s action ‘directly and consequentially’ results in the termination of employment, and had the employer not taken this action, the employee would have remained employed.31 There must be an action by the employer that either intends to bring the relationship to an end, or has that probable result.32 [65] In determining whether a termination is at the initiative of the employer, it is necessary to examine all the circumstances including the conduct of the employer and the employee.33 [66] After considering all the evidence, in particular the matters listed below: [2026] FWC 394 10 a. Mr Hannawe’s evidence remained consistent with his earlier filed written evidence whereas significant inconsistencies appeared in Mr Kc’s evidence. b. Mr Kc’s inconsistent written and oral evidence of what was said during the altercation. c. Mr Kc’s inconsistent written and oral evidence as to when he raised his concerns about alleged underpayments. In his Application, he says that he raised it before 22 September 2025 and that the altercation was used as an excuse for the termination of his employment. He later claimed that he raised his concerns during his discussions with Mr Hannawe after the verbal altercation with Mrs Hannawe, and that it was the raising of these complaints at that time which caused his dismissal. d. When questioned about the ‘evolution’ and inconsistencies of his evidence, Mr Kc admitted in cross examination that he was “learning more while [he] was filing the case” including “doing more research on the Internet” and if “needed to add [evidence], [he] was going to add it”.34 e. Mr Kc’s initial evidence that he was dismissed by Mr Hannawe immediately following the altercation, however, his subsequent evidence that he remained at Eat House following the altercation and completed his shift. f. The integral role Mr Kc played in the business as the only chef and the improbability that Mr Hannawe would summarily dismiss him given the impact that would have on what is micro business and the primary income stream for Mr Hannawe and his family. g. Mr Hannawe’s evidence that he was surprised to find out that Mr Kc had subsequently returned to the workplace and removed his belongings. h. Mr Hannawe’s two contemporaneous messages querying whether Mr Kc would attend his rostered shift in light of the removal of his belongings. i. Mr Kc’s initial evidence that he was not rostered to work on 23 September 2025 and his subsequent concession that he was. j. That Mr Kc did not respond to either message from Mr Hannawe noting that he had already been dismissed. [67] I find that a verbal altercation occurred between Mr Kc and Mrs Hannawe. Mr Hannawe did not tell Mr Kc he was dismissing him but simply told Mr Kc to go home to defuse the situation. Mr Kc refused to leave the workplace and completed his shift. [68] I also find that after leaving work, Mr Kc decided he did not wish to continue his employment with Eat House and returned to the workplace to collect his belongings. Mr Kc did not attend his next rostered shift and did not respond to messages asking him to confirm his intention to return to work. [69] I am satisfied that Mr Hannawe did not dismiss Mr Kc on 22 September 2025. [70] Eat House submits that Mr Kc abandoned his employment before the Termination Email was sent in error by Mr Hannawe. It was therefore unnecessary for Mr Hannawe to send the Termination Email to Mr Kc and of no legal effect as Mr Kc had at the time it was sent already abandoned his employment and the employment relationship had come to an end. [71] What constitutes abandonment of employment was considered by a Full Bench in the context of the award modernisation review process:35 [2026] FWC 394 11 “[21] “Abandonment of employment” is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. This may be termed a renunciation of the employment contract. The test is whether the employee’s conduct is such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it. Renunciation is a species of repudiation which entitles the employer to terminate the employment contract.5 Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations. [22] Where this occurs, it may have various consequences in terms of the application of provisions of the FW Act, [including]…if the employee lodges an unfair dismissal application, then the application is liable to be struck out on the ground that there was no termination of the employment relationship at the initiative of the employer and thus no dismissal within the meaning of s 386(1)(a).” [72] Generally, abandonment of employment arises in circumstances where an employee is absent from the workplace without reasonable excuse or had failed to communicate with the employer to provide an excuse for why they were absent.36 [73] Given the integral part Mr Kc knew that he played in the business as the only chef, the size of the business and financial impact on it of his failure to attend a shift without notice I am satisfied that the following conduct engaged in by Mr Kc was such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it: a. Mr Kc’s removal of his belongings from the workplace, b. Mr Kc’s refusal to respond to messages asking him to confirm his intention to return to work, and c. Mr Kc’s failure to attend his rostered shift. [74] I find that on, or before, 1pm on 23 September 2025, Mr Kc abandoned his employment with Eat House. Was the dismissal consistent with the Small Business Fair Dismissal Code? [75] Even if Mr Kc’s conduct did not constitute abandonment of employment, I am satisfied that Eat House was a small business for the purposes of the SBFD Code and that Mr Kc’s dismissal was consistent with the SBFD Code. [76] Section 388 of the FW Act provides that a person’s dismissal was consistent with the SBFD Code if: [2026] FWC 394 12 a. immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and b. the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal. [77] There is no dispute that Eat House was a small business employer within the meaning of s.23 of the FW Act at the relevant time, having fewer than 15 employees (including casual employees employed on a regular and systematic basis). [78] The SBFD Code was declared by the Minister for Employment and Workplace Relations on 24 June 2009 and provides as follows: “Small Business Fair Dismissal Code Commencement The Small Business Fair Dismissal Code comes into operation on 1 July 2009. Summary Dismissal It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report. Other Dismissal In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job. The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations. Procedural Matters [2026] FWC 394 13 In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity. A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.” [79] If Mr Kc’s employment did not come to an end earlier by way of abandonment then in the alternative, he was summarily dismissed for serious misconduct. [80] In Pinawin v Domingo, a Full Bench of the then Fair Work Australia explained the test to be applied for summary dismissal under the SBFDC as follows:37 “[29] There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly, it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held. [30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.” [81] The belief may be on reasonable grounds if the person making the decision to dismiss had personally witnessed the conduct.38 [82] Regulation 1.07 of the Fair Work Regulations 2009 (Cth) defines serious misconduct as “wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment”, or “conduct that causes serious and imminent risk to the health and safety of a person; or to the reputation, viability or profitability of the employer’s business.”39 Serious misconduct also includes a “refusal to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.”40 [83] Mr Hannawe’s evidence is that Mr Kc engaged in a number of incidents of misconduct which Mr Hannawe personally witnessed. These included: a. Mr Kc routinely arriving late for work without warning. [2026] FWC 394 14 b. Mr Kc refusing to take scheduled breaks. c. Mr Kc leaving the workplace to purchase additional supplies during the course of his shift, notwithstanding being instructed by Mr Hannawe to send a kitchen hand instead. d. Mr Kc refusing to follow directions given to him by Mrs Hannawe or any other female staff members. e. Mr Kc threatening Mr Hannawe with a metal meat mallet while being restrained by a kitchen hand. f. Mr Kc rolling his eyes when customers placed orders. g. Mr Kc storing empty recycling bottles unhygienically contrary to Mr Hannawe’s directions. h. Mr Kc swearing at Mrs Hannawe. i. Mr Kc refusing to leave the workplace as directed. j. Mr Kc refusing to respond to confirm he would attend work on 23 September 2025. k. Mr Kc failing to attend work on 23 September 2025. [84] I accept Mr Hannawe’s evidence in relation to these incidents. To the extent that some of these incidents might be characterised as less serious, a series of incidents viewed cumulatively may still amount to serious misconduct, even if these incidents alone would not constitute serious misconduct.41 [85] I am satisfied that these incidents cumulatively and the following incidents separately constituted serious misconduct: a. Mr Kc threatening Mr Hannawe with a metal meat mallet and being restrained by a kitchen hand. b. Mr Kc failing to comply with directions in relation to the performance of his work and his attendance at work. c. Mr Kc failing to attend work in circumstances where he was the sole chef in a micro business notwithstanding the impact his absence would inevitably have on the reputation, viability and profitability of the business. [86] Therefore, I am satisfied that the cumulative incidents described in paragraph 84 alongside the individual incidents within paragraph 86 constitutes serious misconduct. [87] I am satisfied at the time of Mr Kc’s dismissal, Mr Hannawe believed that Mr Kc’s conduct was sufficiently serious to justify immediate dismissal. As Mr Hannawe had witnessed this conduct I am satisfied that his belief was based on reasonable grounds. [88] I also accept that Mr Hannawe had repeatedly raised his concerns regarding the majority of Mr Kc’s conduct (save for warning him not to continue picking up personal phone calls) with him. [89] I am not satisfied that Mr Kc’s dismissal was inconsistent with the SBFD Code, or that he was unfairly dismissed. [90] The Application is therefore dismissed. [91] An Order42 to this effect will be published with this Decision. [2026] FWC 394 15 DEPUTY PRESIDENT Appearances: S Kc for himself L Nicholls for the Respondent Hearing details: 2026 Perth 5 January Printed by authority of the Commonwealth Government Printer <PR796526> 1 Digital Court Book (DCB) 23-35. 2 Warrell v Walton (2013) 233 IR 335, 341 [22]. 3 Warrell v Fair Work Australia [2013] FCA 291. 4 Ibid. 5 [2012] FWA 2966, [23] – [26]. 6 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Ltd (Project Aurora) [2012] FWA 2966 at [16]. 7 DCB (n1) at 14-15 and 112. 8 DCB (n1) at 81-82. 9 Ibid at 83-85. 10 Ibid at 81-82. 11 Ibid at 14, 77 and 88. 12 FWC Audio Recording of the Proceedings (Audio Recording), 5 January 2026. 13 DCB (n1) at 14. 14 Ibid at 98. 15 DCB (n1) at 83. [2026] FWC 394 16 16 Exhibit R1 - Form F2 Application for unfair dismissal. 17 DCB (n1) at 6. 18 Ibid at 14. 19 Audio Recording (n12). 20 DCB (n1) at 83. 21 Ibid at 20. 22 Ibid at 20. 23 DCB (n1) at 112. In his submissions Mr Kc asserted that he was not rostered to work on 23 September 2026 however under cross examination he conceded he was rostered to work but did not attend. 24 Ibid at 20. 25 Ibid at 21-22. 26 Ibid at 84. 27 Ibid at 87-100. 28 DCB (n1) at 87. 29 Form F2 (n16). 30 Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645; Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 at [75]. 31 Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645. 32 Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769 at [24]. 33 O’Meara v Stanley Works Pty Ltd (PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at [23]. 34 Audio Recording (n12). 35 Abandonment of Employment [2018] FWCFB 139 [21]-[22]. 36 Sharpe v Mcg Group Pty Ltd [2010] FWA 2357 [29]. 37 [2012] FWAFB 1359. 38 Pinawin T/A RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359 [28]-[29]. 39 Fair Work Regulations 2009 (Cth) Regulation 1.07, (2)(a)-(b). 40 Ibid at (2)(e). 41 Grundy v Brister and Co [2019] FWC 3242. 42 PR796527.