01 Oct HR LAW NEWSLETTER – SEPTEMBER 2025

Welcome to the September 2025 HR Law Newsletter.  The past two months have seen several significant developments in employment law, with key decisions from both the Federal Court and the Fair Work Commission offering important guidance for employers.

COLES & WOOLWORTHS DECISION

In the significant ruling of Fair Work Ombudsman v Woolworths Group Limited & Ors; Baker v Woolworths; Pabalan v Coles Supermarkets Australia Pty Ltd [2025] FCA 1092 (“C & W Decision”), the Federal Court of Australia has offered guidance on various matters relating to wage and modern award compliance including the use of set-off clauses in employment contracts.  This decision has extensive implications for employers, particularly those who pay employees all-inclusive salaries.

HR Law has recently posted an article which provides further information in relation to the implications of the C & W Decision.  You can view the article here.

To read the C & W Decision, click here.

CASE BRIEF: COSTS FOR WORKER AFTER HR CONSULTANT “EMBELLISHED” CASE

The Fair Work Commission (“FWC”) has awarded indemnity costs against an employer after finding the employer acted vexatiously and without reasonable cause in defending an unfair dismissal claim brought by a former manager.

Background

Last year, Commissioner Hunt ordered Companion Systems Pty Ltd (“the Company”) to pay its former manager, James Camenzuli (“Mr Camenzuli”) $34,660.00 plus superannuation for unfairly dismissing him.  Commissioner Hunt heavily criticised the “astonishingly poor” actions of the Company’s HR consultant, finding that this meant Mr Camenzuli’s redundancy process “descended into accusations of serious misconduct”. Notably:

• The HR consultant falsely claimed that Mr Camenzuli had sent malware to the Company when, in fact, he had merely provided an Australia Post receipt confirming return of a Company mobile phone.  This false claim was repeated in oral evidence, despite clear documentary evidence to the contrary.

• The HR consultant also attempted to contact Mr Camenzuli’s new employer under the false pretence of conducting a reference check.  Commissioner Hunt described this as “astonishing conduct” noting that the proper course of action would have been to request redacted payslips if the Company wished to verify mitigation of loss.  Commissioner Hunt concluded that these actions were intended to harass or embarrass Mr Camenzuli, or pressure him into withdrawing his unfair dismissal claim.

The Decision

More recently, Commissioner Hunt turned her attention to Mr Camenzuli’s cost application and found that whilst parties ordinarily bear their own costs in FWC proceedings, there are exceptions contained within the Fair Work Act 2009 (Cth) (“FW Act”).  Specifically:

• section 400A – where a party causes costs through an unreasonable act or omission; and

• section 611(2) – where a party responds to a claim vexatiously, without reasonable cause, or with no reasonable prospect of success.

Commissioner Hunt assessed these sections in depth and found that the Company had breached both sections by defending the claim vexatiously and without reasonable cause as well as causing unnecessary legal costs through unreasonable conduct.

To read the case, click here.

CASE BRIEF: SUMMARY DISMISSAL UPHELD

In the recent decision of Mr Firas Raghib v Stantec Australia Pty Ltd [2025] FWC 2335 (13 August 2025), the Fair Work Commission (“FWC”) upheld the summary dismissal of a senior HR business partner, finding that he fabricated a text message in an attempt to discredit a complainant and mislead his employer.  Despite identifying procedural deficiencies in the dismissal process, the Commission determined that the seriousness of the misconduct outweighed those deficiencies.

Background

In February 2024, a subordinate HR worker (“Complainant”) lodged complaints alleging that the senior HR business partner:

• exercised coercive control over the Complainant’s personal time;

• addressed her as “girl”, which the Complainant considered “infantilising”;

• questioned her “obsessively” about whether she had relationships with male colleagues; and

• attempted to make the Complainant feel indebted to him for her job by making comments including that “the only reason she hadn’t lost her job that day was because he stuck his neck out for her…she came very close to being fired…she was on her last chance, that he was very disappointed in her, and that she needed to do better for him, and she needed to be careful around men in the office”.

In March 2024, the senior HR business partner commenced a prolonged period of absence from work, supported by medical certificates.

In February 2025, the senior HR business partner produced a screenshot purporting to show that the Complainant had sent him a text message apologising for fabricating her complaint.  The Complainant denied sending the text message and provided phone records confirming no such communication occurred.

Deputy President Masson found that the alleged message was “a complete fiction… a cynical fabrication designed… to discredit and undermine the complainant and the disciplinary process.” The Commission concluded that the senior HR business partner had changed his work mobile’s contact name to be the Complainant’s to deliberately fabricate the text message.

The Decision

Although the Company failed to provide the senior HR business partner with an opportunity to respond to the allegations regarding the fabricated text message, Deputy President Masson determined that the outcome would not have changed.

Deputy President Masson concluded that, among other matters:

• the fabricated text message was an act of serious misconduct; and

• procedural deficiencies were outweighed by the gravity of the misconduct.

Accordingly, the Commission rejected the unfair dismissal claim and upheld the Company’s decision to summarily dismiss the senior HR business partner.

To read the case, click here.

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The content of this newsletter is intended to provide a general guide to the subject matter.  Specialist advice should be sought about your specific circumstances.