Taking a soft approach can come back and bite you

One Minute Summary

The employee breached his obligations on multiple occasions. These instances could be classed as ongoing misconduct.
The company responded with a soft, non-confrontational approach. No warnings were issued.
After the employee sent a message that he would be looking for a new job, the employer accepted that message as the employee resigning. When the employee denied resigning the employer sent a letter affecting summary dismissal.
Fair Work allowed the summary dismissal under the Small Business Fair Dismissal Code. A termination with notice under the Dismissal Code requires the employee to have been warned. This had not occurred.

Mr Waye lodged his Fair Work unfair dismissal application after being terminated from Entire Building Services (EBS) on 12 August 2025. Entire undertakes commercial building maintenance such as replacing locks and door handles, ‘patch and paint’ jobs and safety works. Mr Waye undertook maintenance duties on a day by day basis usually working by himself.

He was terminated without notice for multiple reasons as follows:

‘Breach of Motor Vehicle Policy -continual use of your company vehicle for personal reasons, including personal jobs, continual fines for parking, fines have not been paid.
‘The company vehicle has not been maintained in accordance with expected standards – requiring considerable repairs.
‘Purchasing materials for personal use on company account without permission, failure to notify us of your purchase on our account, failure to pay the invoice.
‘Submitting false time sheets claiming overtime that is untrue.
‘Failure to provide an invoice/receipt for tools purchased on company account.

While the Commission did ultimately dismiss Mr Waye’s unfair dismissal application, the decision provided some interesting learnings. As we have seen in countless Fair Work Commission decisions, an employer may have solid reasons for a termination but the termination was still deemed unfair for procedural and other unrelated reasons.

In her decision Commissioner Tran found that the termination was in line with the Small Business Fair Dismissal Code.

“As I have found that Mr Waye’s dismissal was consistent with the Code, I do not have to consider whether the dismissal was unfair. For completeness, I would have found that the employer had valid reasons for dismissing Mr Waye but that the procedural failings, despite being a small business, would have weighed in favour of a finding that the dismissal was unfair. “

Under the Dismissal Code a termination can be either a summary dismissal for serious misconduct or a dismissal with notice following warnings. No proper warnings occurred prior to termination in this case.

Given the circumstances this was the correct outcome in this case. However, I suspect other Commission members could well come to a different conclusion on whether this was a proper summary dismissal under the Dismissal Code.

We’ll examine some of the important lessons from this decision.

Key learnings

A positive for the employer was that whenever new employees commenced, they were issued with a copy of the employee handbook and company policies. The company kept a signed record from each employee acknowledging receipt of the documents, that they had read them and that they will abide by them ‘as a condition of their continuing employment with EBS’.

In relation to the Policies and Handbook key parts those documents were regularly discussed at toolbox meetings and irregular email reminders were sent to employees. The regular refreshers are essential as the employer would find it difficult to rely on the exact wording of the policy as time progressed. Memories fade without reinforcement.

Relevant to this case were the Motor Vehicle Use Policy (which disallowed use of the vehicle for personal travel other than to/from work) and the Vehicle Tracking Policy (which clearly informed employees that their vehicle location would be tracked and the data would be used to cross check the location of staff). The Motor Vehicle Use Policy also clearly stated that fines were the responsibility of the employee.

EBS was sent invoices from suppliers for personal work undertaken by Mr Waye in respect to after-hours private jobs. EBS did not have a problem with employees undertaking personal after-hours jobs provided they did not relate to EBS clients. However, in this case it is unclear why EBS paid those invoices for Mr Waye. The amounts were added to a repayment schedule for Mr Waye along with several other items. Where this occurs, the employee is able to argue that the matter had been dealt with at the time (via the repayment schedule) and should not be included in any future disciplinary process.

Mr Waye purchased tools at Bunnings with the company credit card. The employee claimed the tools were required for a legitimate client job. EBS added them to the repayment schedule for Mr Waye as mentioned above. It was unclear what formal authorization was required for employees to initiate such purchases. Where a small business has good trustworthy employees it often does not see the need to introduce such guidelines or it feels those good employees will be offended where it does put in place authorization procedures.

EBS also received and paid a number of ‘final demand’ parking fines incurred by Mr Waye – and added them to his repayment schedule. Mr Waye raised the same defense stating that as the fines had been added to his repayment schedule they had been dealt with – and should not have been raised again in a disciplinary manner.

In relation the invoices, the tools and the parking fines, the EBS owner had discussions with Mr Waye but none of those discussions could be classed as a warning. The Decision acknowledged that while discussions had taken place it was not made clear to Mr Waye that he could be terminated if such behaviours continued.

EBS correlated Mr Waye’s job sheets with GPS data and found discrepancies that indicated he was falsifying the job information including starting late and finishing early. Mr Waye claimed this was a part of ‘the give and take’ and that on occasions he worked overtime but had not include it on job sheets or claimed extra pay. He therefore felt entitled to start late and finish early.

Employers need to be clear on employee expectations in such situations. How should this be recorded and paid/deductions made AND does this practice require a discussion to take place on acceptable time keeping practices.

The GPS data also showed Mr Waye clearly breaching the ‘no personal use’ part of the motor vehicle policy on multiple occasions after hours and on his rostered day off. He claimed that he was given permission in a discussion with the owner which was denied.

While it does not clearly state it in the decision, it appears as though EBS admin staff were on the ball in picking up Mr Waye’s wayward practices, however management preferred a low key / non-confrontational approach when raising those breaches with him.

On Friday 8 August 2025, Mr Waye had a bit of a tantrum when a newer employee was allocated the Triton ute claiming he had asked to drive the Triton some months prior. He then stated “I do good work for Entire but this has left a sour taste mate, my work quality won’t drop off, but I’ll be looking for another job..”

Several days later Mr Waye sent an early txt message stating he would be sick that day. The owner responded with “Hey Brad, I took your message last Friday as a resignation with Entire as you are now looking for another job…..” Mr Waye responded denying he had resigned and sought a letter of termination. EBS then forwarded a termination letter affecting a summary dismissal.

In relation to the above the Commissioner stated “I am of the view that, despite the text messages … the employer did believe it had grounds to summarily dismiss Mr Waye. It appears from Mr Shaun O’Dwyer’s text message that the employer saw an opportunity to misunderstand Mr Waye’s message and accept a resignation that was not offered. That does not detract from the conduct for which the employer nevertheless believed, on reasonable grounds, that it could dismiss Mr Waye.”

Mr Waye’s txt message was not a resignation.

The employer took a soft non-confrontational approach to managing Mr Waye’s transgressions. Thankfully, (and surprisingly) the Commission decided that the various instances of misconduct could justify a summary dismissal by the employer as there were no prior warnings in place to justify a termination with notice.

Summary termination is (usually) only justified for very serious and immediate misconduct and usually involves an investigation – to confirm the allegations because they are so serious. Employers requiring assistance with disciplinary matters are encouraged to seek help early.

Kind Regards

Michael Schmidt

M 0438 129 728

[email protected]

www.hunteremployeerelations.com.au