Two Paths, One Lesson: Why Fair Process is Critical in Employee Dismissals
Lessons from Davis v Odell Resources Pty Ltd and Weule v Central Queensland Services Pty Ltd
The Fair Work Commission (FWC) has once again underscored a familiar truth in Australian employment law: a procedurally sound dismissal process is just as important as the reason for termination. Two recent decisions — Gregg Davis v Odell Resources Pty Ltd [2025] FWC 1150 and David Weule v Central Queensland Services Pty Ltd [2025] FWC 1219 — demonstrate how the dismissal process is still incredibly important, even where the alleged conduct would generally be grounds for dismissal.
While both cases related to employees who were dismissed for being involved in physical altercations, the decisions might be surprising.
Case Summary: Weule v Central Queensland Services Pty Ltd [2025] FWC 1219
Outcome: Unfair Dismissal (Harsh, Unjust and Unreasonable)— Reinstatement appropriate
Mr Weule was employed by Central Queensland Services since September 2022. He initially worked at the Dunia Mine before being transferred to the Caval Ridge Mine in 2024. On 13 June 2024, Mr Weule was involved in a physical altercation with a colleague, Mr Torcello. The Commission found that Mr Torcello instigated the altercation and that Mr Weule retaliated, including by punching Mr Torcello twice.
Mr Weule was given a stand down letter on 14 June 2024, indicating that an investigation was being conducted in relation to a physical altercation with another team member. An investigation followed (which involved Mr Weule being interviewed and spoken to by the investigator, Mr Everingham) and on 20 September 2024 Mr Weule was given notice of his dismissal. Mr Weule’s termination was effective immediately however he received five weeks’ pay in lieu of notice.
After assessing all of the elements of unfair dismissal pursuant to section 387 of the Fair Work Act 2009 (Cth), Deputy President Butler ultimately determined that the dismissal was harsh, unjust and unreasonable. Deputy President Butler found that:
- ‘it was harsh in light of the circumstances of the altercation and the lack of any adverse disciplinary history’;
- ‘it was unjust because Mr Weule was entitled to defend himself rather than allow a co-worker to attack him, and his acts were proportionate and reasonable in the circumstances’; and
- ‘it was unreasonable because there was no valid reason for termination or alternatively because of the failure to provide him with a proper opportunity to respond’.
The investigation took a few months to be carried out and the investigator did speak with Mr Weule on a couple of occasions, which might lead Employers to believe a reasonable opportunity to respond was afforded to Mr Weule. The critical issue was that Deputy President Butler determined that the opportunity to respond was not genuine because the investigator did not keep an open mind as to whether self defence could be an available justification. The majority of factors to be considered in unfair dismissal applications were found in favour of Mr Weule, but particular emphasis was placed on the procedural issues that arose from the investigation and specifically the fact that the investigator did not keep an open mind.
The Commission held that it was ‘not inappropriate’ to order reinstatement because Mr Weule was good at his job, experienced and had good relationships with other employees.
Case Summary: Davis v Odell Resources Pty Ltd [2025] FWC 1150
Outcome: Unfair Dismissal (Harsh, Unjust and Unreasonable) — Compensation ordered
Mr Davis was employed as a full-time Operator with Odell since March 2023. Mr Davis worked at Wiluna Mine at Leonora in Western Australia but lived in Queensland. Unlike in Weule, Mr Davis’ employment agreement explicitly stated that fighting was unacceptable conduct.
On 18 September 2024, Mr Davis was involved in a physical altercation with a colleague, Mr Tsoukalas. The witness statements of both Mr David and Mr Tsoukalas were largely consistent, in that Mr Davis (believing he was about to be struck by Mr Tsoukalas) punched Mr Tsoukalas and then put him in a chokehold. The physical altercation then ended and the two separated. This was also supported by evidence given by Mr Dowden, who witnessed the altercation but was not directly involved.
On 23 September 2024 (which was a public holiday in Western Australia), Odell emailed a show cause letter to Mr Davis, which asked him to respond to allegations by the following day (24 September) and directed him to take a flight to Perth and then return home to Queensland. Mr Davis unfortunately missed the flight, which resulted in a nine-hour drive to Perth Airport followed by a flight to Brisbane via Melbourne at his expense – this took him a total of 35 hours from the time he was dropped off at Perth Airport. Mr Davis was summarily dismissed on 25 September 2024 via a letter that was emailed to him on that date. When Mr Davis received the show cause notice he did verbally seek an extension but it was refused.
After assessing all of the elements of unfair dismissal pursuant to section 387 of the Fair Work Act 2009 (Cth), Deputy President Butler ultimately determined that the dismissal was harsh, unjust and unreasonable ‘having regard to the facts of the altercation, the deficiencies as to the opportunity to respond, Mr Davis’ otherwise clean record and a failure by the Employer to meet their obligations as to travel in the intervening period between the show cause and the termination’.
Interestingly, of the factors relating to unfair dismissal that were considered by Deputy President Butler, the majority of them were found in favour of the Employer. For example, it was held that there was a valid reason for dismissal, that Mr Davis was notified of that reason, Mr Davis was not unreasonably refused to have a support person present and that there was ‘misconduct’ on the part of Mr Davis (which did ultimately reduce the compensation he was awarded). Critically though, it was held that Mr Davis was not given a full or proper opportunity to respond to the show cause notice and it was not reasonable for his extension to be refused. From the Decision, it would appear that this factor alone was sufficient for Deputy President Butler to make a finding that the dismissal was harsh, unjust and unreasonable and to award compensation to Mr Davis.
Employer Takeaway: Fair Reasons Still Need Fair Process
Both cases involved physical altercations, which Employers might think is a valid and simple reason for a fair termination. In Odell’s case, the Employer even had an employment agreement which explicitly confirmed fighting was unacceptable conduct and would be grounds for termination and the Commission did find that there were grounds for termination. However both Employers failed to follow proper process and ultimately the Fair Work Commission held that both dismissals were harsh, unjust and unreasonable.
These cases truly highlight that Employers must consider all relevant factors of what constitutes an unfair dismissal under section 387 of the Fair Work Act 2009 (Cth) and must ensure they allow procedural fairness and give employees a full and proper opportunity to respond before they make a decision.
Our Message to Employers: Avoid the Cost of Getting It Wrong
Don’t confuse justification with immunity. Even the strongest misconduct cases can fail if you haven’t followed a procedurally fair process. At Enterprise Legal, we work with employers to ensure they don’t fall into the same trap as these Employers. If you’re managing a workplace incident or misconduct allegation, we provide:
✅ Guidance on conducting procedurally sound investigations
✅ Legally compliant termination documentation (if that becomes necessary)
✅ Representation before the Fair Work Commission if needed
✅ Strategic advice that aligns with your business goals
Don’t risk an unfair dismissal finding because of rushed or missed process. Let us help you protect your decisions — and your business.
