Conduct discovered after termination justified dismissal: FWC

In an unfair dismissal case highlighting the implied duty of good faith and fidelity owed by an employee, an account manager succeeded in arguing she had had been dismissed but failed to convince the Fair Work Commission (FWC) the dismissal was unfair.

Background

The applicant in the matter was engaged as an account manager and team leader of a team of bookkeepers that serviced a group of clients of the respondent. Following the acquisition of another company, the applicant claimed her workload increased, leading to complaints about performance. ​ The respondent initiated formal performance management processes, culminating in a first formal warning issued on 14 May 2025. ​

On 15 May 2025, the applicant sent an email indicating her intention to terminate her employment, citing unfair treatment and proposing terms for her exit.

Dismissal

The respondent objected to the unfair dismissal application on the basis that the applicant was not dismissed but voluntarily resigned her employment on 15 May 2025. Alternatively, the respondent said that in the event the applicant was dismissed, there was a valid reason for her dismissal and that the dismissal was not otherwise harsh, unjust or unreasonable and therefore not unfair.

In determining the matter, Deputy President Slevin of the FWC concluded the applicant was dismissed on the employer’s initiative. ​The dismissal was characterized by the respondent’s actions, including disabling her access to company systems and notifying staff of her resignation, which indicated a termination rather than a voluntary exit. ​The Deputy President emphasised that a reasonable person would interpret the respondent’s conduct as a termination of employment. ​

Valid reason

The respondent argued that the applicant was dismissed for serious misconduct, specifically for covertly negotiating employment with a client of the respondent.  The Deputy President noted that while the respondent could not rely on the restraints clause in the applicant’s contract of employment for dismissal, the applicant’s actions breached her implied duty of good faith and fidelity.  The Deputy President found the applicant misled the respondent about her job application status and acted in a manner that conflicted with the employer’s interests, which justified the dismissal. ​

Procedural fairness

The applicant was not notified of the reason for her dismissal prior to its occurrence, which typically weighs in favour of finding a dismissal harsh or unreasonable.  However, the lack of notice was largely due to her own conduct, as the respondent was unaware of the reasons until after the dismissal. ​There was no request for a support person during discussions about her dismissal, rendering this a neutral factor. ​

Consideration of other factors

The respondent is not a small business and has human resources expertise, which they utilised in the dismissal process. ​The Deputy President considered the applicant’s length of service and the context of her workplace but noted that she was actively seeking to leave on her own terms. ​

Conclusion

The Deputy President concluded that the dismissal was not harsh, unjust, or unreasonable, and therefore, the applicant was not unfairly dismissed. The Deputy President went on to note that, even if the applicant had been unfairly dismissed, compensation (which the applicant sought) would be inappropriate as the applicant had commenced work as a contractor with a client of the respondent’s shortly after her dismissal, earning more than she would have with the respondent. ​

Ms Cheryl Della Marta v CBK NSW Pty Ltd [2025] FWC 3219