Andrew Murrell v Bundaleer Care Operations Limited [2026] FWC 2839

1 Fair Work Act 2009 s.394—Unfair dismissal Andrew Murrell v Bundaleer Care Operations Limited (U2026/1041) DEPUTY PRESIDENT DEAN CANBERRA, 29 JULY 2026 Application for unfair dismissal remedy – dismissal not unfair – application dismissed [1] This matter concerns an application made by Mr Andrew Murrell (Applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for unfair dismissal. [2] The Applicant was employed by Bundaleer Care Operations limited (Respondent) from April 2024 as a Maintenance Officer until he was dismissed on 23 January 2026. [3] The application was heard on 13 May 2026. The Applicant appeared on his own behalf and Mr James Mattson of Bartier Perry appeared with permission for the Respondent. [4] For the reasons set out below, I find that the Applicant was not unfairly dismissed. Events leading to dismissal [5] The Applicant’s employment was governed by the Bundaleer Care Services NSWNMA and HSU NSW Enterprise Agreement 2017-2020. [6] The matters relied on by the Respondent in dismissing the Applicant were set out in a letter dated 8 January 2026 which is in the following terms: Dear Andrew, Following our recent communication on 8 January 2026, regarding some serious concerns that have come to our attention, we write to formally outline the allegations discussed and to provide you with an opportunity to respond. In accordance with the principles of natural justice and our commitment to fair and transparent processes, no decision has been made at this time. You are invited to provide a written response to the allegations set out below by COB 12 January 2026. Relevant Policies and Prior Directions [2026] FWC 2839 DECISION -- 1 of 14 -- [2026] FWC 2839 2 You are employed by Bundaleer Aged Care and are required to comply with all lawful and reasonable directions, including those arising from: • Apollo Care’s Code of Conduct • Apollo Care’s Drug and Alcohol Policy • Workplace Health and Safety Obligations You have also been issued with specific instructions, including direct instructions from your manager on the morning of 20 October 2025, confirming that: • The consumption of alcohol on Apollo Care premises is strictly prohibited, including after hours, unless expressly approved by management in accordance with the Drug and Alcohol Policy; and • You were provided with, and requested to read, a copy of the Drug and Alcohol Policy. Allegations Allegation 1 – Consumption of Alcohol on Workplace Premises On 23 December 2025, it is alleged that you consumed alcohol on Apollo Care premises, specifically at the maintenance shed at Bundaleer, after your shift had concluded, despite having been clearly instructed that alcohol consumption on site is prohibited. We note that: • There was no approved or authorised event permitting alcohol consumption on this date; • Management has confirmed that no permission was granted for alcohol consumption on site; • Records indicate you had finger-scanned off duty earlier in the day but remained on site into the evening; and Witness information indicates that you confirmed you had consumed alcohol onsite, including advising that you had “a couple of drinks”. Allegation 2 – Failure to Follow Lawful and Reasonable Directions It is alleged that by engaging in the conduct described above, you failed to comply with clear, lawful, and reasonable management directions that had previously been issued to you, including directions that alcohol consumption on site must cease immediately. Allegation 3 – Incorrect Claim for Call-Out Payments It is alleged you claimed two call-out payments for work performed on 26/11 in circumstances where: • You attended to two separate maintenance tasks in different areas during the same call out period; and • You were entitled to only one call-out payment. It is alleged that claiming two call-out payments in these circumstances was not consistent with Apollo Care’s expectations regarding accurate and honest reporting of work performed and payments claimed. Seriousness of the Allegations -- 2 of 14 -- [2026] FWC 2839 3 The matters outlined above are considered serious. Consuming alcohol on site, failing to comply with lawful and reasonable directions, and claiming payments not properly owed raise concerns regarding workplace safety and are inconsistent with Apollo Care’s policies, values, and expectations of employee conduct. If substantiated, the conduct described above may constitute serious misconduct and may result in disciplinary action, up to and including termination of employment. If substantiated, these concerns conflict with: A) Alcohol and Drug Policy 22. Apollo Care (through Managers) may from time to time permit the consumption of alcohol at Apollo Care initiated events or functions with management consent and oversight. 23. Consumption of alcohol may only be approved by a manager and may only be approved for staff outside their rostered shift times. B) Clause 3 of the Code of Conduct: 3. Employees, volunteers and service providers are required to behave in a way that reflects Apollo Care’s four sentinel behaviours: • Putting residents and clients first • Safety and quality in everything we do • Work together to achieve together • Use resources wisely C) Clause 4 of the Code of Conduct 4. Employees are required to apply the learning and insights gained through the culture program to their daily work, including contributing positively to the workplace culture, supporting respectful and collaborative relationships, and demonstrating behaviours that align with our organisational behaviours. D) Clause 5 of the Code of Conduct: 6. Employees, volunteers and service providers are required to: • Comply with applicable laws and Apollo Care policies. • Behave honestly and with integrity in all aspects of the provision of care and/or services. • Perform their duties to the best of their ability and work in a manner that is consistent with this Code of Conduct and Apollo Care policies. • Be reliable and punctual in the provision of care and services. • Follow reasonable directions from managers and supervisors Opportunity to respond We are offering you an opportunity to respond in writing to the above allegations, explain your actions and detail to why you should not receive any disciplinary action. Please submit your response by close of business, 12/1/26. We will schedule a meeting with you after we have received your response and provide you with an outcome. We would also caution you not to seek out information as to who has brought these matters to our attention. This may create an uncomfortable environment for staff & residents and may -- 3 of 14 -- [2026] FWC 2839 4 cause new matters to arise. Retaliation against other staff will not be tolerated. Kind reminder that this matter is strictly confidential. The details of the allegations, your response, and any related discussions should not be discussed with staff or residents. Any unauthorised disclosure may compromise the integrity of this process and could lead to further disciplinary action. Andrew, we understand that this may be a challenging time. We encourage you to access the company’s Employee Assistance Program (EAP) through [name redacted] by calling [number redacted]. If you have any questions, please contact me via email. Yours sincerely, Marsha Blackbell Residential Service Manager [7] The Applicant responded on 12 January 2026 as follows: Re: allegations Allegation 1 CONSUMPTION OF ALCOHOL ON WORKPLACE PREMISES (23rd December) Other than me allegedly saying I had a couple of drinks to someone (witness) I did nothing wrong, Nor can that person be considered as a witness to this allegation if they only know what was told to them and didn’t actually see what is alleged. Allegation 2 FAILURE TO FOLLOW LAWFUL AND REASONABLE DIRECTION With my explanation on the above allegation there is no grounds for this allegation to hold any substance towards me as I didn’t fail to follow any direction Allegation 3 INCORRECT CLAIN FOR CALL OUT PAYMENT This allegation is completely unfounded as all I did was report my call outs as per request to be sent off by Michael to rostering and Marsha for approval to be paid. I have no say in whether it gets approved, all I did was supply the accurate information I was asked for in detail. Whether this gets approved or not I have no say over that. As per in the past I would be asked about call outs, I would detail them with times, dates, reason’s locations, all these details are necessary as to whose budget the call out fee would be paid by, And then it would be approved or denied by the manager responsible. Kind regards Andrew [8] The Respondent then sent a letter dated 16 January 2026 asking the Applicant to show cause as to why his employment should not be terminated. The letter was in the following terms: Dear Andrew, -- 4 of 14 -- [2026] FWC 2839 5 We write further to our Opportunity to Respond letter dated 8 January 2026, your written response dated 12 January 2026, and the information obtained as part of our investigation. Following careful consideration of all available information, including your response and the evidence provided, we have now completed our investigation into the allegations raised. Our findings are outlined below. Findings Allegation 1 – Consumption of Alcohol on Workplace Premises It was alleged that on 23 December 2025, you consumed alcohol on Apollo Care premises in breach of direct instructions you had received, knowing that this was prohibited behaviour. This allegation is substantiated on the balance of probabilities based on the following: Multiple individuals independently reported that you admitted to them you had consumed “a couple of drinks” on site. In your written response, you also admitted that you told a colleague you had “a couple of drinks.” Management did not provide approval for alcohol consumption on site on that day. Your statement that the witness “did not see” the conduct does not negate your own verbal and written admissions. Allegation 2 – Failure to Follow Lawful and Reasonable Directions It was alleged that you knowingly breached clear and reasonable directions prohibiting alcohol consumption on site. This allegation is substantiated as: • You had been expressly instructed on 20 October 2025 that consumption of alcohol on Apollo Care premises is strictly prohibited, including after hours, unless expressly approved by management in accordance with the Drug and Alcohol Policy • You were provided with, and requested to read, a copy of the Drug and Alcohol Policy. • No permission was given for alcohol consumption on 23 December 2025 • The substantiated conduct in Allegation 1 is in breach of these clear and reasonable instructions. Allegation 3 – Incorrect Claim for Call-Out Payments It was alleged that you incorrectly claimed two call-out payments for work performed on 25 November 2025 where you were only entitled to one. This allegation is substantiated based on the following: Your email dated 25 November clearly states: “Heads up all 2 call outs tonight”, please see below: From: Andrew Murrell Sent: Tuesday, 25 November 2025 8:20 PM To: Marsha Blackbell; [name redacted]; [name redacted]; [name redacted] Subject: 2 call outs Heads up all 2 call outs tonight one for ILU21 tree limbs through ceiling Two lost off power to court 7 tripped power Andrew Murrell | Maintenance/Grounds Officer -- 5 of 14 -- [2026] FWC 2839 6 The second maintenance task occurred while you were already on site from the first call-out and within the same hour. Under these circumstances, only one call-out payment was applicable. While you stated that approvals are managed by others, you were responsible for submitting accurate and truthful claim information. The information you provided indicated two call-outs when only one was payable. Breaches Identified Your conduct has been found to be inconsistent with: • Apollo Care’s Drug and Alcohol Policy • Apollo Care’s Code of Conduct • Workplace Health and Safety obligations • Lawful and reasonable directions from management The substantiated conduct raises serious concerns regarding workplace safety, compliance with organisational policies, integrity in reporting, and trust and accountability. Show Cause – Opportunity to Respond Given the seriousness of these substantiated findings, you are now required to show cause in writing as to why your employment should not be terminated. You are invited to provide a written response addressing any mitigating factors you wish to be considered and why termination of your employment should not occur. Your response must be submitted by COB 19/1/2026. No final decision has been made at this time. Your response will be carefully considered before any outcome is determined. Confidentiality We would also caution you not to seek out information as to who has brought these matters to our attention. This may create an uncomfortable environment for staff & residents and may cause new matters to arise. Retaliation against other staff will not be tolerated. Kind reminder that this matter is strictly confidential. The details of the allegations, your response, and any related discussions should not be discussed with staff. Any unauthorised disclosure may compromise the integrity of this process and could lead to further disciplinary action. Andrew, we understand that this may be a challenging time. We encourage you to access the company’s Employee Assistance Program (EAP) through [name redacted] by calling [number redacted]. If you have any questions, please contact me via email. Yours sincerely, Marsha Blackbell Residential Service Manager [9] The Applicant’s response, dated 19 January 2026, was as follows: … Allegation 1 is based on multiple people gossiping and spreading rumors among the workplace which is a DIRECT breach of the workplace bullying and harassment policy. In my written -- 6 of 14 -- [2026] FWC 2839 7 response, there was no written admission from me saying I had a couple of drinks as it was only alleged. I would also like to make it very clear that this allegation is completely false. Allegation 2 is unsubstantiated as allegation number 1 is false and as per your instruction on the 20th of October no alcohol has been consumed onsite. Allegation 3 is completely unfounded as I followed normal processes in providing accurate and truthful details about the call outs I received on the 25th of November as per below. I am not aware of the details of what does and doesn’t constitute a payable call out, timelines and locations of call outs. I was simply reporting the call outs I have received as per process I was shown upon starting my employment. From: [Name redacted] Sent: Monday, 8 December 2025 7:14 AM To: Rostering Cc: Marsha Blackbell; Andrew Murrell Subject: Andrew Murell Call-Out’s Hi This fortnight Andrew had the following callouts. 25/11/25 6:08pm Call out 1 RV ILU 21 tree on roof waited with ILU resident till SES arrived call from marsha 25th/11/25 6:50pm Call out 2 RAC loss of power in court 7 faulty toaster tripped the fuse call from RN’s 6/12/25 11:06am Call out 3 RAC close windows in courts 1,2,5,6, due to smoke from local fires attended closed windows as requested call from marsha 7/12/25 8:50am Call out 4 RV plumbing issue in ILU 12 cant turn hot water off attended made safe organised plumber for monday call from INS direct Regards [Name redacted] Maintenance/Grounds Officer … [10] The Applicant’s employment was terminated by letter dated 23 January 2026 as follows: … Dear Andrew, We write further to our Show Cause letter dated 14 January 2026. We have carefully considered your most recent response received on 19 January 2026, along with all available evidence obtained as part of our investigation. After doing so, our findings remain unchanged. The allegations are substantiated on the balance of probabilities, as outlined below. -- 7 of 14 -- [2026] FWC 2839 8 Findings Allegation 1 – Consumption of Alcohol on Workplace Premises You denied this allegation in your Show Cause response. However, in your initial written response to the Opportunity to Respond letter, you did not deny stating that you had consumed “a couple of drinks.” Specifically, in your written response dated 12 January 2026, you stated: “Other than me allegedly saying I had a couple of drinks to someone (witness) I did nothing wrong. Nor can that person be considered as a witness to this allegation if they only know what was told to them and didn’t actually see what is alleged.” This statement acknowledges that you told a colleague that you had “a couple of drinks.” Your response does not deny that this statement was made. Instead, it challenges the credibility of the witness on the basis that they did not directly observe the conduct. The wording “they only know what was told to them and didn’t actually see” indicates that you admitted to them having had “a couple of drinks.” This supports the conclusion that you consumed alcohol on site on that day. On the balance of probabilities, this allegation remains substantiated. Allegation 2 – Failure to Follow Lawful and Reasonable Directions You were expressly instructed on 20 October 2025 that alcohol consumption on Apollo Care premises is strictly prohibited, including after hours, unless expressly approved by management in accordance with the Drug and Alcohol Policy. You were also provided with, and requested to read, the Drug and Alcohol Policy. No permission was granted for alcohol consumption on 23 December 2025. Given the substantiated finding in Allegation 1, this allegation remains substantiated on the balance of probabilities. Allegation 3 – Incorrect Claim for Call-Out Payments In your Show Cause response, you denied the allegation stating it is completely unfounded as you followed normal processes in providing accurate and truthful details about the call outs. You also included an email from the Maintenance Manager dated 8 December 2025, however, the information in his email is based from your initial email dated 25 November 2025 which states, “Heads up all 2 call outs tonight.” The second maintenance task occurred while you were already on site from the first call-out and within the same hour. A call-out applies when you are required to attend site when you are not already present. Under these circumstances, only one call-out payment was applicable. Your email indicated two call-outs when only one was payable. On the balance of probabilities, this allegation remains substantiated. Additional Considerations In determining the outcome, we also considered the broader context of your conduct, including: • A pattern of challenging lawful and reasonable management directions, including challenging the direction not to smoke in the maintenance shed • Complaints received from external community members about alcohol consumption being witnessed at the maintenance shed, causing reputational damage to the facility • Your continued denial of substantiated conduct and lack of insight into the seriousness of these matters Apollo Care expects all employees to act honestly, comply with reasonable directions, and uphold workplace safety and professional standards. Trust, integrity, and accountability are fundamental expectations under our Code of Conduct. Outcome – Termination of Employment -- 8 of 14 -- [2026] FWC 2839 9 Given the seriousness of the substantiated findings, the pattern of conduct, and the loss of trust in your ability to comply with organisational expectations and standards, your employment with Bundaleer Aged Care is terminated effective today 23 January 2026. Final Pay You will receive: • payment of all hours worked up to and including your final day, • payment of any accrued but untaken annual leave entitlements • two weeks’ notice in lieu of working You are required to return any Apollo Care property in your possession. Reminder of Ongoing Confidentiality Obligations You are reminded that all matters relating to this investigation, including the allegations, findings, outcome, and any related correspondence, remain strictly confidential. You must not discuss this matter with staff, residents, community members, or any other third parties, nor seek to identify individuals who provided information as part of the investigation. Any unauthorised disclosure or conduct that may interfere with the integrity of this process, create discomfort for others, or cause reputational harm to the organisation may result in further action being taken. Andrew, we understand that this may be a challenging time. We encourage you to access the company’s Employee Assistance Program (EAP) through [REDACTED] by calling [REDACTED]. If you have any questions, please contact me via email. Yours sincerely, Marsha Blackbell Residential Service Manager … Consideration Protection from Unfair Dismissal [11] There is no dispute and I am satisfied that the Applicant is a person protected from unfair dismissal by virtue of s.382 of the Act. I now turn to consider if the dismissal was unfair within the meaning of the Act. Was the dismissal unfair? [12] A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following: 385 What is an unfair dismissal A person has been unfairly dismissed if the FWC is satisfied that: (a) the person has been dismissed; and (b) the dismissal was harsh, unjust or unreasonable; and (c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and -- 9 of 14 -- [2026] FWC 2839 10 (d) the dismissal was not a case of genuine redundancy. Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388. [13] There is no dispute that the Applicant was dismissed and that subsections (c) and (d) do not apply. Was the dismissal harsh, unjust or unreasonable? [14] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account: a. whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and b. whether the person was notified of that reason; and c. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and d. any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and e. if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and f. the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and g. the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and h. any other matters that the FWC considers relevant. [15] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd as follows: “... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”1 1 (1995) 185 CLR 410, 465 (McHugh and Gummow JJ). -- 10 of 14 -- [2026] FWC 2839 11 [16] In cases involving misconduct, the Commission must determine, on the balance of probabilities, whether the misconduct alleged to have occurred by the employee did actually occur. The Commission must make such a finding on the evidence before it. [17] The onus is on the Applicant to demonstrate that the dismissal was unfair. [18] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.2 Valid reason - s.387(a) [19] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”3 and should not be “capricious, fanciful, spiteful or prejudiced”.4 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.5 [20] There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight as a fundamental element in the decision making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable. [21] Having considered all the evidence, I find that there was a valid reason for the Applicant’s dismissal. [22] The Respondent called evidence from seven of its staff, six of whom were not required for cross examination. This included evidence from a staff member who had been told by the Applicant that he had been drinking on site on 23 December 2025. The relevance of that particular day was that another employee who was drinking with the Applicant had a serious car accident after leaving the workplace while under the influence of alcohol. Evidence was also given by the Applicants manager who had issued him with the direction in October 2025 that he was not permitted to drink alcohol on site, and specifically not in the maintenance shed after work. [23] Also of note is that on 5 January 2026 the Applicant’s wife, also an employee of the Respondent, told Ms Blackbell that the Applicant had been drinking on site after work on 23 December 2025, which she subsequently confirmed in an email to Ms Blackbell. Around one week later, the Applicants wife sought to withdraw that email saying she was in an emotional and vulnerable state at the time. 2 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69]. 3 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373. 4 Ibid. 5 Walton v Mermaid Dry Cleaners Pty Limited (1996) 142 ALR 681, 684. -- 11 of 14 -- [2026] FWC 2839 12 [24] I accept the evidence of the Respondent’s witnesses, most of which was unchallenged. [25] As a result, I am satisfied and find that the Applicant was given a direction not to consume alcohol on site in October 2025, and was given a copy of the Respondent’s alcohol policy at the same time, but did consume alcohol on site in breach of the direction and the Respondent’s policy. [26] In terms of the call out payments, I am not satisfied on the evidence that the Applicant intended to claim two payments on the day in question. The Respondent had in its possession the times of the two call outs that day, being 6.08pm and 6.50pm respectively. It should have been evident that the two tasks the Applicant was called to do were likely done within the same call out and could easily have been checked with the Applicant before making payment. At the same time, the Applicant should have been aware he was paid for two call outs in circumstances where he was not entitled to two payments. On balance however, I am not satisfied that the Applicant engaged in deliberately dishonest behaviour in this regard. [27] As a result of my finding that the Applicant consumed alcohol on site in breach of the direction and policy, I am satisfied there was a valid reason for his dismissal. Notification of the valid reason and opportunity to respond - s.387(b) and (c) [28] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,6 in explicit terms7 and in plain and clear terms.8 In Crozier v Palazzo Corporation Pty Ltd,9 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following: “As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 10 [29] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to 6 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]. 7Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151. 8 Previsic v Australian Quarantine Inspection Services Print Q3730. 9 (2000) 98 IR 137. 10 Ibid, 151. -- 12 of 14 -- [2026] FWC 2839 13 respond to this concern.11 This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.12 [30] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to the Applicant before the dismissal was effected. [31] Given the correspondence set out earlier, I am satisfied that the Applicant was notified of the reason for his dismissal and given an opportunity to respond to the matters that resulted in his dismissal. Unreasonable refusal by the employer to allow a support person - s.387(d) [32] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present. [33] The Applicant’s own evidence confirms that he was not denied a support person. Warnings regarding unsatisfactory performance - s.387(e) [34] A warning for the purposes of s.387(e) must clearly identify: a. the areas of deficiency in the employee’s performance; b. the assistance or training that might be provided; c. the standards required; and d. a reasonable timeframe within which the employee is required to meet such standards.13 [35] The warning must also “make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.”14 [36] The Applicant was not dismissed for unsatisfactory performance and so this criterion is not relevant. Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g)) [37] I am satisfied that the size of the Respondent and its dedicated human resource expertise did not impact on the procedures followed by it in effecting the dismissal, and the process was undertaken to a standard that would be expected of an organisation of its kind. [38] Other relevant matters - s.387(h) 11 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7. 12 RMIT v Asher (2010) 194 IR 1, 14-15. 13 McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd [2013] FWC 3034, [32]. 14 Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44]. -- 13 of 14 -- [2026] FWC 2839 14 [39] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant. [40] I have taken into account the Applicant’s employment record and length of service. Conclusion [41] Having carefully considered each of the required matters, I am not satisfied that the Applicant has discharged his onus of proving that the dismissal was harsh, unjust or unreasonable. Accordingly, I am not satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the Act, and so this application is dismissed. DEPUTY PRESIDENT Appearances: A Murrell on his own behalf. J Mattson of Bartier Perry for Bundaleer Care Operations Limited. Hearing details: 2026. By video: May 13. Printed by authority of the Commonwealth Government Printer <PR812583> -- 14 of 14 --