Workplace Misconduct Beyond the Office Door: When Does a Pre-Shift Lift Altercation Justify Dismissal Under the Fair Work Act 2009?

Based on the authentic Australian judicial case [2025] FWC 1471 (U2024/12281), this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing:

Fair Work Commission

Presiding Judge:

Commissioner Lim

Cause of Action:

Application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth)

Judgment Date:

28 May 2025

Core Keywords:

Keyword 1: Authentic Judgment Case
Keyword 2: Unfair dismissal
Keyword 3: Out of hours conduct
Keyword 4: Connection to employment
Keyword 5: CCTV evidence
Keyword 6: Valid reason

Background (No Result Spoilers)

The Applicant was an employee who had recently been performing light duties in a CBD office due to a prior work injury. On a weekday morning shortly before work, in a public lift within the same building as the employer’s office, the Applicant became involved in a brief but confrontational incident with a member of the public. The incident was witnessed by another employee and was also captured on CCTV footage. The employer investigated, formed the view that the conduct breached workplace behavioural standards, and terminated employment. The Applicant then brought an unfair dismissal claim, disputing both what happened and whether the employer could legitimately treat the incident as work-connected misconduct.

Core Disputes and Claims

The Commission was required to determine three tightly connected questions.

First, what actually occurred in the lift, assessed on the evidence, including CCTV footage, contemporaneous emails, and oral testimony.

Second, assuming the conduct occurred, whether it was sufficiently connected to employment to constitute a valid reason for dismissal, even though it happened shortly before commencement of duties and involved a stranger rather than a co-worker.

Third, whether the dismissal was harsh, unjust, or unreasonable under s 385 and s 387 of the Fair Work Act 2009 (Cth), including whether there were procedural deficiencies and, if so, whether they outweighed the seriousness of the conduct.

The Applicant sought an unfair dismissal remedy. The Respondent opposed the claim, contending there was a valid reason related to conduct and that, overall, the dismissal was not unfair.

Chapter 2: Origin of the Case

The relationship between the parties began as an ordinary employment relationship: the Applicant had worked for the Respondent for a relatively short period, had no prior disciplinary history, and was performing duties associated with a specialised operational role. A workplace knee injury and subsequent surgery shifted the daily working arrangement. The Applicant transitioned into light duties and began attending the Respondent’s CBD office.

That change of work setting mattered. The daily rhythm of commuting to a multi-tenant office tower, moving through a shared lobby and lifts, and mixing with other tenants’ staff became part of the practical environment in which the employment was now performed.

On the morning of the incident, the Applicant entered a lift at street level. A member of the public entered as well, and a co-worker of the Applicant entered last. The lift car was small. The Applicant positioned himself close to the doors. The member of the public intended to exit at a lower level, which practically required access to the doorway first.

Conflict emerged from that confined space. A request was made to move aside. The Applicant did not move. As the member of the public attempted to exit, there was incidental body contact consistent with squeezing past in a narrow lift. The Applicant reacted by making physical contact with force and using profanity. The moment was short, but the consequences were immediate: a complaint was made, the incident was reported within the workplace, CCTV footage was obtained, and an investigation began.

The decisive moments that tipped this from a “personal dispute” into an employment consequence were these:

1. The location was the same building that housed the Respondent’s office floors and was the only practical access route to those floors.
2. The timing was close to the start of the workday, when multiple employees were arriving.
3. The Applicant was identifiable as connected to the Respondent through workplace identifiers.
4. A co-worker witnessed the event and promptly reported it.
5. CCTV footage provided an objective record that could be weighed against competing narratives.

From that point, the case was no longer about an awkward morning misunderstanding. It became a dispute about whether a moment of aggression on the way into work could lawfully support termination, and whether the employer’s process and reasoning satisfied the statutory fairness framework.

Chapter 3: Key Evidence and Core Disputes

Applicant’s Main Evidence and Arguments

1. Written account asserting the member of the public was hostile, that the lift was spacious, and that the Applicant acted defensively after being physically contacted.
2. Oral evidence attempting to minimise the physical force used, characterising it as light contact.
3. Emphasis on the Applicant’s knee injury and asserted vulnerability, presented as context for a reactive response.
4. Argument that the event occurred outside work hours and outside the workplace, and therefore should not be treated as a breach of workplace standards.
5. Criticism of the investigation as rushed or procedurally flawed, including arguments about limited disclosure and the Applicant’s language competence.

Respondent’s Main Evidence and Arguments

1. Witness evidence from a co-worker who saw the push and heard the profanity, with a contemporaneous email describing the incident in detail, including the description of the Applicant’s positioning at the lift entrance, the sequence at the exit level, and the reported words spoken.
2. Witness evidence from the member of the public who felt a sudden push and heard profanity as she exited.
3. CCTV footage from the lift showing the Applicant’s positioning at the doors, the member of the public squeezing past at her exit, and the Applicant’s arm movement pushing her in the back with visible force.
4. Evidence from the Respondent’s industrial relations manager describing the investigation steps: obtaining CCTV, speaking with witnesses, seeking a written response, meeting to view the footage, and concluding a breach of behavioural expectations and the code of conduct.
5. Submissions that the conduct was either within the workplace or sufficiently linked to the workplace, and in any event damaged the Respondent’s interests and the employment relationship.

Core Dispute Points

1. The physical act: whether the Applicant pushed with force or merely brushed clothing.
2. The provocation narrative: whether the member of the public acted aggressively or whether any contact was unavoidable in a confined space.
3. The credibility contest: whether the Applicant’s account was reliable compared with other witnesses and the CCTV.
4. The work-connection question: whether a pre-shift incident in a common lift in the office building was properly treated as employment-related misconduct.
5. The fairness balance: whether procedural shortcomings, if any, rendered the dismissal harsh, unjust, or unreasonable despite the seriousness of the conduct.

Chapter 4: Statements in Affidavits

Affidavit-style evidence in unfair dismissal matters is often the first battlefield where each party tries to “lock in” a coherent narrative before cross-examination tests it.

In this case, the Applicant’s version sought to frame the incident as self-protective and reactive. The structure of that narrative typically follows a familiar strategy: establish vulnerability (a physical injury), assign hostility to the other person (portrayed as angry and unreasonable), assert a proportionate response (defensive contact), and deny aggressive intent (downplaying force and tone).

The Respondent’s witness material, by contrast, adopted a modular and observational structure: position in the lift, request to move, lack of response, the squeeze past, the push, the profanity, and the immediate request for witnessing. This structure is persuasive because it is anchored to sequence and observable behaviour rather than speculation about motives.

The boundary between untruths and facts in competing affidavits often emerges where each account meets objective material. Here, the CCTV footage became the centrepiece. When a party’s affidavit asserts “light brushing” but the video depicts a forward arm extension and a stumble, the Court is not choosing between two equally plausible stories. It is measuring each story against a neutral record.

Strategic intent behind procedural directions about affidavits in matters like this generally includes:

1. Forcing each party to commit to a specific chronology so that inconsistencies can be exposed in cross-examination.
2. Identifying what is genuinely contested versus what is rhetoric.
3. Allowing the tribunal to compare contemporaneous documents, such as emails, against later reconstructions that may be influenced by the dispute itself.
4. Enabling a structured credibility assessment by mapping affidavit statements to objective evidence.

The practical lesson is simple: affidavits do not win because they are long, emotional, or confident. They win when they remain consistent with what independent evidence shows and when the witness can sustain that consistency under cross-examination.

Chapter 5: Court Orders

Before the final hearing, the matter involved procedural arrangements typical of a contested unfair dismissal case with factual disputes:

1. Directions for filing and serving written submissions.
2. Timetabling for witness statements and any documentary evidence, including video material.
3. Arrangements for witnesses to attend for cross-examination.
4. Listing of the hearing over multiple days due to the volume of evidence and submissions.
5. Management of interpreter support where required for oral evidence.

These procedural steps matter because they shape what each party must prove and when. In particular, early identification and exchange of CCTV footage often determines whether a matter becomes a credibility case or a straightforward evidentiary finding.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The hearing unfolded as a classic credibility contest, but with a critical difference: the dispute did not rely solely on recollection. CCTV footage provided a visual account of the core physical act.

Process Reconstruction: Live Restoration

Cross-examination pressed the Applicant on three fault lines.

First, the physical mechanics: where the Applicant stood, how much room existed, what movement occurred at the exit moment, and whether any contact by the member of the public could plausibly justify the Applicant’s response.

Second, the Applicant’s own contemporaneous email: the language used, the description of pushing, and the attempt to attribute malign motives to a stranger. This contemporaneous document functioned as a snapshot of the Applicant’s perception at the time, and it created a problem if the Applicant later sought to soften the story.

Third, the discrepancy between oral minimisation and video depiction: the Applicant’s attempts to describe the push as minor were tested against the footage that showed a deliberate arm extension and the other person stumbling forward.

The co-worker witness was examined on positioning and timing details. Minor inconsistencies were explored, but the Commission treated them as unsurprising given ordinary human recall months later, particularly when the witness had not previously reviewed the CCTV.

The member of the public was examined on what she felt and saw, with attention to whether she had any motive to exaggerate. Her lack of prior relationship with the Applicant and the general consistency of her account were significant.

Core Evidence Confrontation

The decisive confrontation was the collision between narrative and video. The case did not turn on whether the lift was awkward or whether the interaction was uncomfortable. It turned on whether the Applicant’s conduct involved an unjustified, forceful push and aggressive profanity.

The Commission also undertook an unusual but highly practical step: the decision-maker inspected the actual lift car. This enabled the Commission to assess claims about space, positioning, and the plausibility of “there was plenty of room” in a way that was grounded in physical reality rather than abstract argument.

Judicial Reasoning

The logic of the reasoning moved in a straight evidentiary chain:

1. Establish the facts on the balance of probabilities.
2. Make credibility findings based on inconsistencies and objective material.
3. Determine whether the conduct occurred and whether it could justify dismissal.
4. Address whether the conduct was sufficiently connected to employment to constitute a valid reason.
5. Consider procedural fairness and the statutory fairness factors as a whole.

The Commission’s reasoning is captured by several determinative statements.

The CCTV footage does not have sound and is low-resolution, but it is clear enough to see that the Applicant pushed the member of the public in the back with force.

This statement was determinative because it anchored the primary factual finding to objective evidence, reducing the scope for competing subjective reconstructions.

The Applicant’s protestations that his fingers merely brushed the other person’s clothes simply cannot be sustained.

This was decisive because it resolved the central dispute about force and intent. Once that dispute was resolved, the remaining questions became legal characterisation and fairness balancing, not factual uncertainty.

Though I accept that the Applicant may have been concerned given his injured knee, the other person’s light contact as she exited the lift did not justify the Applicant’s aggressive and intentional response.

This statement matters because it shows how the tribunal distinguishes understandable human reaction from legally significant misconduct. Context may explain conduct, but it does not necessarily excuse it.

Chapter 7: Final Judgment of the Court

The Commission dismissed the unfair dismissal application.

The Commission found there was a valid reason for dismissal related to conduct, including the physical push and aggressive profanity. While the Commission identified procedural deficiencies, including that the Applicant was not notified of the reason for dismissal prior to the decision and was not given an opportunity to respond to that reason, the Commission ultimately concluded that, considered as a whole under s 387 of the Fair Work Act 2009 (Cth), the dismissal was not harsh, unjust, or unreasonable.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis

This decision is valuable because it demonstrates how “out of hours” conduct analysis is not a technical loophole about the clock, but a practical inquiry into connection, context, and reputational impact.

The case shows three jurisprudential themes that recur in modern unfair dismissal law:

1. Physical environment as functional workplace: The boundary of the workplace is not confined to the employer’s tenancy line. Where access routes are integral to attending work, the tribunal may treat them as workplace-adjacent in a legally meaningful way.

2. Objective evidence as credibility determinant: CCTV can collapse a credibility contest quickly. The tribunal will still consider testimony, but where video contradicts a party’s minimisation, credibility findings often follow.

3. Connection analysis as a factual matrix exercise: The tribunal applied a multi-factor test, examining location, timing, identification with the employer, witness overlap with employees, and the nature of the misconduct.

Judgment Points

1. The Commission treated the lift as either part of the workplace or sufficiently linked to it due to practical necessity. The lift was the only way employees could access the office floors. That functional dependence supported a strong work connection.

2. Timing mattered. The incident occurred shortly before work on a weekday morning when employees were arriving. That sharply distinguished it from conduct occurring well away from work hours in a purely private setting.

3. Identification with the employer mattered. The Applicant was readily identifiable as connected to the Respondent through workplace identifiers. That increased the likelihood of reputational harm and the employer’s legitimate interest in responding.

4. Witness overlap mattered. Another employee witnessed the incident and promptly reported it. This created an internal workplace effect beyond a private dispute.

5. Proportionality was assessed by the nature of the conduct. The Commission treated a forceful push and aggressive profanity towards a stranger as serious misconduct, not a minor lapse.

6. Procedural deficiencies were acknowledged but did not control the outcome. The Commission found that the weight of the valid reason outweighed the procedural shortcomings, a reminder that procedural fairness is critical but not automatically determinative where misconduct is serious and clearly established.

Legal Basis

The legal framework applied was the unfair dismissal regime in the Fair Work Act 2009 (Cth), including:

1. Section 394: the application mechanism for unfair dismissal remedies.
2. Section 385: defining unfair dismissal, including whether the dismissal was harsh, unjust, or unreasonable.
3. Section 387: mandatory factors the Commission must take into account, including valid reason, notification, opportunity to respond, support person, prior warnings, and any other relevant matters.

For out of hours conduct, the Commission applied established principles from Full Bench authority, focusing on the limited circumstances where out of hours conduct can constitute a valid reason. The key propositions were that the conduct must be likely to cause serious damage to the employment relationship, damage the employer’s interests, or be of such gravity as to indicate repudiation of the employment contract, and that the conduct must “touch” the duties or ability of the employee in relation to duties, assessed across the entire factual matrix.

Evidence Chain

Victory Point 1: The CCTV footage fixed the core physical fact
The Respondent’s strongest point was not argument but proof. The CCTV footage showed a deliberate pushing motion and the other person stumbling forward. Once the tribunal accepted that depiction, the Applicant’s “light brushing” description became untenable. In litigation terms, the Respondent successfully converted a “he said, she said” dispute into an objective evidentiary finding.

Victory Point 2: Contemporaneous internal reporting created credibility momentum
The co-worker’s prompt report and detailed email supported the reliability of recollection. Early reporting reduces the risk of reconstruction. It also demonstrates that the incident had a workplace audience and workplace impact. The Respondent did not rely solely on the complaint from the member of the public; it relied on an employee witness who had no prior history with the Applicant.

Victory Point 3: The Applicant’s own contemporaneous email undermined minimisation
The Applicant’s email response to the investigator included language that conceded pushing and used aggressive descriptors about the stranger. Even where a party attempts to reframe conduct later, contemporaneous documents can show what the party actually believed or admitted close to the event. The tribunal treated the discrepancy between that email and the later minimisation as credibility damage.

Victory Point 4: Physical inspection of the lift neutralised “space” arguments
The Commission’s inspection of the lift was an unusually practical method of resolving a factual claim about whether there was “plenty of room”. By anchoring the analysis to the real dimensions, the tribunal reduced the risk of misleading abstractions. This also strengthened the finding that contact while exiting was avoidable only if the Applicant moved, and that the Applicant’s refusal to move made incidental contact unsurprising.

Victory Point 5: The work-connection factors were stacked, not isolated
The Respondent succeeded because it did not argue a single thin connection. It presented multiple reinforcing links: location (office building lift), timing (pre-shift), identification (workplace identifiers), workplace witness (employee observed), practical necessity (only access route), and reputational implications (conduct visible to others while identifiable as an employee). This cumulative approach aligns with how tribunals reason about connection: not a one-factor test, but a composite picture.

Victory Point 6: The Respondent framed the conduct as incompatible with workplace behavioural standards
The Respondent’s reasoning was that abusive language, harassment, and antisocial interaction are unacceptable in circumstances connected to work, including areas integral to attending work. The tribunal accepted that a reasonable person does not require a written code to understand that shoving and swearing at a stranger in a work-connected environment is unacceptable. This is an important principle: workplace standards often reflect broader community norms, and egregious conduct can be self-evidently inconsistent with employment obligations.

Victory Point 7: The Respondent contained procedural vulnerabilities by ensuring a meaningful chance to provide a version
Although the Commission found deficiencies in notification and opportunity to respond before the final dismissal decision, the Respondent still took steps that mattered: it sought a written response, met with the Applicant, and viewed the CCTV with the Applicant. In serious misconduct cases, tribunals often examine whether the employee had a fair opportunity to present their account. The Respondent’s steps helped prevent the procedural issues from overwhelming the substantive misconduct finding.

Victory Point 8: Lack of remorse can influence the fairness balance
The tribunal placed weight on the Applicant’s ongoing insistence that he was the victim and that nothing was wrong with his conduct, even at hearing. In unfair dismissal matters, a demonstrated acceptance of wrongdoing and insight can sometimes support a finding of harshness where dismissal is disproportionate. The absence of insight can push in the opposite direction, particularly where the conduct involves aggression.

Judicial Original Quotation

In certain circumstances an employee’s employment may be validly terminated because of out of hours conduct. These circumstances are limited. The conduct must be such that, viewed objectively, it is likely to cause serious damage to the employment relationship; the conduct damages the employer’s interests; or the conduct is of such gravity or importance as to indicate a rejection or repudiation of the employment contract.

This quotation was determinative because it set the legal gate: not all out of hours misconduct qualifies. The tribunal then applied that gate to the facts, finding the required level of connection and seriousness.

To constitute a valid reason for dismissal, the out of hours conduct must touch the duties or the abilities of the employee in relation to the duties. This requires consideration of the entire factual matrix.

This quotation mattered because it justified the tribunal’s multi-factor analysis, including location, timing, identification, and impact. It also signalled that the question is not merely “Was the employee on the clock?” but “Does the conduct, viewed in context, affect the employment relationship and the employer’s legitimate interests?”

Analysis of the Losing Party’s Failure

1. The Applicant’s narrative collided with objective evidence
   The Applicant’s core failure was an evidentiary one. The attempt to characterise the push as minor could not be reconciled with the CCTV. Once the tribunal rejected that minimisation, the Applicant’s credibility suffered broadly, making it harder to succeed on any contested point.

2. Overreliance on “outside work hours” as a decisive shield
   The Applicant treated timing as a trump card. The tribunal treated timing as one factor in a broader connection inquiry. Because the incident occurred in a workplace-adjacent access route, shortly before work, while identifiable as an employee, the “outside hours” argument lacked persuasive force.

3. Inadequate engagement with proportionality
   To defeat a valid reason, a party often needs to show either the conduct did not occur, was materially less serious, or was reasonably excused, or that dismissal was disproportionate in the circumstances. With the conduct established as a forceful push with aggressive profanity, the proportionality argument became difficult unless supported by strong mitigating factors and insight. The tribunal did not accept that mitigation.

4. Procedural arguments were not enough to outweigh seriousness
   The tribunal acknowledged procedural deficiencies. However, procedural shortcomings do not automatically produce unfairness where the valid reason is strong and the misconduct is serious. The Applicant’s inability to show that the deficiencies caused substantive unfairness, combined with credibility issues, meant the balance favoured the Respondent.

5. Lack of insight undermined the “harshness” case
   In unfair dismissal, harshness can turn on whether dismissal was an excessive response when measured against the employee’s conduct and circumstances. A sustained refusal to acknowledge wrongdoing can persuade a tribunal that the employment relationship is damaged and that reinstatement is impracticable or inappropriate. The tribunal placed weight on this factor in the overall balance.

Implications

1. A workplace begins earlier than many people think
   If you are in a place that is practically part of attending work, your conduct may still be treated as connected to employment. The law often looks at real-world function, not just technical boundaries.

2. CCTV changes everything
   When video exists, your later explanation must align with it. If your account minimises what the footage plainly shows, credibility can collapse quickly.

3. Aggression in confined public spaces is treated seriously
   A push and aggressive profanity can be viewed as serious misconduct even if it lasts only seconds and even if it happens before you sit at your desk.

4. Procedural fairness matters, but it is not magic
   If misconduct is clearly established and serious, procedural defects may not be enough to win the case. They can still matter, but they must be weighed against the valid reason.

5. Insight is a legal asset
   Taking responsibility and demonstrating understanding of why the conduct was wrong can change outcomes in marginal cases. Where there is no insight, tribunals may be less willing to characterise dismissal as harsh.

Q&A Session

Q1: If an incident happens before I start work, can my employer still discipline or dismiss me?

Yes, in limited circumstances. The key question is whether the conduct is sufficiently connected to employment, assessed by location, timing, identification with the employer, effect on the employer’s interests, and impact on workplace relationships.

Q2: Does it matter that the other person was not a co-worker?

It can matter, but it is not decisive. Misconduct towards a member of the public can still damage the employer’s interests, especially where you are identifiable as an employee and the incident occurs in a work-connected setting.

Q3: What should I do if I am accused of misconduct and there is CCTV?

Assume the CCTV will be decisive. Give a careful, accurate account that matches what the footage shows. If you are at fault, focus on explanation and mitigation rather than denial that cannot be sustained.

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype:

Employment Misconduct in a Work-Adjacent Public Facility – Out of Hours Conduct and Work Connection

Judgment Nature Definition:

Final Judgment (determination of unfair dismissal application)

2. Self-examination of Core Statutory Elements

This section is for reference only. Outcomes tend to depend on the specific facts, the quality of evidence, and how the statutory criteria apply to the circumstances.

③ Employment and Workplace Disputes (Industrial Relations Law)

Core Test (Unfair Dismissal – Fair Work Act 2009 (Cth))

Step 1: Coverage and threshold matters
– Are you protected from unfair dismissal, including having completed the minimum employment period, being covered by a modern award or enterprise agreement or earning below the high income threshold, and having lodged within time? These issues must be satisfied before the merits are reached.

Step 2: Was the dismissal harsh, unjust, or unreasonable?
This is assessed by reference to s 387 factors, including:

1. Valid reason related to capacity or conduct

– Did the alleged conduct occur on the balance of probabilities, bearing in mind the seriousness of allegations?
– Is the reason sound, defensible, and well-founded rather than capricious or prejudiced?
– If the conduct is “out of hours”, is there a sufficient connection to employment? This often depends on the entire factual matrix, including location, timing, work identifiers, impact on reputation, effect on workplace relationships, and whether the conduct damages the employer’s interests.

1. Notification of the reason

– Were you clearly told the reason relied on before dismissal was decided?
– A failure here tends to weigh towards unfairness, but may not be determinative if the valid reason is very strong.

1. Opportunity to respond

– Were you given a real chance to give your version before the decision was made?
– Practical opportunities include written responses, meetings, and being shown material relied upon, including CCTV where relevant.

1. Support person

– Were you allowed to have a support person in discussions?
– The focus is usually on whether a request was unreasonably refused.

1. Warnings (where dismissal relates to performance)

– If the issue is performance, prior warnings generally matter.
– If the issue is serious misconduct, warnings may be less relevant.

1. Size of enterprise and HR expertise

– Large employers with HR capability are often expected to run more structured processes.
– Smaller employers may be judged with some practical allowance, though fairness standards still apply.

1. Other relevant matters

– Personal hardship, difficulty finding work, length of service, prior record, remorse, and insight can be relevant.
– These factors tend to be most influential where seriousness is borderline or there are strong mitigating circumstances.

Core Test (General Protections – Fair Work Act 2009 (Cth))

If an unfair dismissal claim tends to be weak, consider whether a general protections claim is relevant, particularly where there is an allegation that adverse action was taken because of a workplace right.
– Was adverse action taken?
– Was a workplace right exercised or proposed to be exercised?
– Was the protected reason a substantial and operative reason for the action?
This may involve a reverse onus, meaning the employer may need to prove the prohibited reason was not a reason for the decision.

Core Test (Sham Contracting)

Not applicable to this case type unless there is a dispute about employee versus contractor status. The key inquiry is substance over labels, including control, integration, tools, risk, and ability to subcontract.

3. Equitable Remedies and Alternative Claims

This section is for reference only. The availability of alternative claims tends to depend on jurisdiction, time limits, and the factual basis.

Procedural Fairness

Even within the Fair Work jurisdiction, procedural fairness issues can be framed in practical terms:
– Were the allegations clearly put?
– Was key evidence disclosed in a meaningful way, particularly evidence central to the finding?
– Was the employee given adequate time and opportunity to respond, including where language barriers exist?
Where there are serious procedural deficiencies, unfairness may be more likely, particularly if the deficiencies materially affected the employee’s capacity to answer the allegations.

If administrative decision-making is involved, broader procedural fairness concepts can become relevant, including the opportunity to be heard and the absence of apprehended bias. In employment matters, these concepts tend to be expressed through s 387 notification and response requirements.

Ancillary Claims

If an unfair dismissal claim fails, consider whether there is a different framing:
– A bullying application may be relevant where conduct involves repeated unreasonable behaviour, though it generally addresses ongoing risk rather than past dismissal.
– A workers’ compensation or discrimination pathway may be relevant where medical conditions and workplace treatment are central, though success tends to depend on distinct legal tests and evidence.

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds

1. Time limit

– Unfair dismissal applications are generally required to be lodged within 21 days after dismissal takes effect. Late applications tend to carry relatively high risk unless there are exceptional circumstances and a persuasive explanation.

1. Minimum employment period

– Depending on employer size, the minimum employment period must be satisfied before access to the merits.

1. Jurisdictional coverage

– Award or agreement coverage, or earnings below the high income threshold, is required.

1. Connection for out of hours conduct

– Where the conduct is outside ordinary working time, the case tends to turn on whether there is a work connection of the requisite kind, assessed across the whole factual matrix.

Exceptional Channels (Crucial)

1. Extension of time for late filing

– Extensions tend to be granted only where there are compelling reasons, supported by evidence, and where the delay is not extensive. The merits of the case may also be considered.

1. Out of hours conduct with weak work connection

– If the conduct occurred in a truly private setting, with no identification as an employee and no impact on the employer’s interests, the employer may face difficulty establishing a valid reason. Each factor matters and the absence of multiple linking factors tends to increase the employee’s prospects.

Suggestion: Do not abandon a potential claim simply because the employer says the conduct was “out of hours” or because the employer points to a code of conduct. Carefully examine connection, evidence, and process. In many cases, the difference between winning and losing is the quality of contemporaneous material and whether the response strategy aligns with objective evidence.

5. Guidelines for Judicial and Legal Citation

Citation Angle

It is recommended to cite this case in submissions involving:
– The application of out of hours conduct principles in unfair dismissal matters.
– The work-connection analysis where misconduct occurs in a work-adjacent access route such as building lifts.
– The weight given to CCTV evidence and contemporaneous documents in credibility findings.
– The balancing of procedural deficiencies against a strong valid reason.

Citation Method

As Positive Support:
– Where your matter involves misconduct in a location functionally connected to attending work, and where the employee is identifiable as an employee, this authority can support an argument that the conduct is sufficiently connected to employment and can constitute a valid reason.

As a Distinguishing Reference:
– If the opposing party cites this case, you may emphasise factual differences that weaken connection, such as conduct occurring far from the workplace, well outside usual hours, without any work identifiers, without employee witnesses, and without credible evidence of reputational or operational impact on the employer.

Anonymisation Rule:
– In your narrative and headings, avoid naming parties. Use Applicant and Respondent. Retain the neutral citation and file number for precision.

Conclusion

This decision shows that the legal boundary of employment is drawn by connection, not by the clock. When conduct occurs in a work-adjacent setting, close to the start of the workday, while a person is identifiable as an employee, and the evidence clearly establishes aggression, dismissal can be upheld even where procedural imperfections exist.

Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the Fair Work Commission ([2025] FWC 1471), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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