Last call for beer brewing specialist after termination deemed fair by FWC

A brewing, distilling, and sales leader has not secured an unfair dismissal decision from the Fair Work Commission after alleging they were unjustly terminated for unsubstantiated allegations of misconduct.

Flying Foam Pty Ltd objected to the application, arguing they had followed the Small Business Dismissal Code after substantiating two allegations against the employee.

From 27 May 2024, the employee was required to produce and maintain beer, cider, and spirit products, and manage inventories, equipment and assist with promotional duties.

According to the employee, certain preparation steps had to be taken by client breweries ahead of his attendance to ensure equipment and materials were ready.

Arriving at a Gold Coast brewery on 7 August 2025, the applicant discovered beer had not been kegged as allegedly agreed upon by the brewery manager.

The employee sent a message to distillation and brewing service manager Simon Lew that said: “I don’t have time to heat up the keg washer, wash keys and fill them before starting a double transfer.”

“I could do a distilling day, but I need keys for the venues which are at home … I will have already invested 4 hours into my day at that point”.

In a statement, Lew claimed he issued instructions to complete the work with some alterations to shorten the time span. The applicant did not dispute this, but disagreed with the request which, he claimed, would see him work “in excess of [an] 11-hour day”.

He informed Lew he would not be able to complete the full scope of the job due to the incomplete preparation, and that he would submit a time-off sheet for the remaining hours of the day.

According to the respondent, Lew was forced to fly from Western Australia to complete the work. Further, the company allegedly received a complaint from the Gold Coast brewery manager and a request that they not work at their sites again.

The respondent notified the applicant of an upcoming formal disciplinary meeting scheduled for the day the applicant returned from annual leave.

This letter also explained the two core allegations: that of the formal complaint, and that the applicant left their assigned post without notification or authorisation.

The letter said: “We allege that your conduct and actions have put at risk the ongoing relationship with a significant customer that cornerstones Flying Foams’ business model in Queensland.”

“This is a serious matter, and if proven, the allegations have the potential to result in disciplinary action up to and including summary dismissal.”

On 8 September, the employee requested sick leave until 15 September, and provided a medical certificate for the period, with the meeting rescheduled for 16 September.

The day before the meeting, the applicant requested a copy of all complaints made against him, with the respondent denying the request and reiterating the meeting’s purpose of discussing the allegations and giving them an opportunity to respond.

Additional sick leave meant the meeting was eventually held on 18 September.

During the meeting, misconduct was identified as “rudeness, short temper and condescending attitude”. According to the applicant, this was the first time hearing this allegation, as well as the request that they be removed from the site.

According to Lew’s evidence, after being asked whether he wanted to discuss the allegation of leaving work without authorisation, the applicant allegedly “answered no and stated that the meeting was over and left the room”.

The respondent allegedly sent an email following the meeting that detailed the allegations and added: “We have made several attempts to meet with you, to discuss these allegations in an appropriate and professional manner.”

A secondary meeting was scheduled for the following day, to which the applicant said: “As I was only made aware of the allegations against me during today’s meeting, I respectfully decline this meeting invitation.”

“It is not my desire to appear difficult, however, 24 hours from finding out what the allegations are is not a reasonable amount of time.”

The respondent again urged the applicant to attend, noting the previous meeting was intended to provide the applicant an opportunity to respond, which they did not, and that the applicant’s intended written response to the allegations had not been received, but would be welcome before the meeting.

The letter said: “We note this is in excess of 24 hours and consider it a fair and reasonable timeframe to respond.”

“However, attending in person is considered a reasonable and lawful direction under your employment contract.”

The applicant did not attend the meeting, and was advised the same day they were terminated effective immediately.

The first matter for determination was whether the employer held the belief that the applicant had engaged in serious misconduct.

In his determination, deputy president Nicholas Lake was satisfied that the respondent held this belief due to the language used by Lew when communicating the seriousness of the allegations and potential impact to the business.

Further, a statement provided by the Respondent’s principal supported this idea, saying: “Both Queensland brewing operations are owned by one client … the loss of the affected client and over 50 per cent of service income would render Flying Foams East Coast operations unviable.”

The next matter for determination was whether the respondent had reasonable grounds to believe the applicant had engaged in serious misconduct.

While the applicant said the allegations made by the client were not proven, and that it demonstrated an attempt to get the applicant fired, claims by the applicant’s representatives that the respondent should have taken a written statement were identified as “unreasonable” by Lake.

He said: “It completely fails to understand the realities of the commercial relationship. The respondent could hardly be expected to turn around and accuse the brewery manager for their major client in Queensland of lying and ask for a written statement.”

While Lake found the respondent did not have reasonable grounds to conclude the applicant had engaged in the misconduct associated with the allegation of rudeness, there were “clearly reasonable grounds to conclude that the applicant had refused to comply with a lawful and reasonable direction” in his departure from the workplace.

On this matter, Lake found the respondent’s request that the worker stay and complete the job was both reasonable and lawful, despite the applicant alleging the number of hours was unreasonable.

It was said: “He claimed the direction as unreasonable because it, in his view, meant an 11-hour day. But it was not an 11-hour day. It was approximately [a] one-hour day.”

In this way, Lake found that the respondent had reasonable grounds to believe that the applicant’s failure to comply with the direction amounted to misconduct.

The applicant’s seeming unwillingness to participate in either of the two disciplinary meetings also voided their argument that they were terminated too quickly after the meeting or not given a chance to respond.

In this way, Lake found that Flying Foam Pty Ltd complied with the requirements of the Small Business Fair Dismissal Code because it believed the applicant had engaged in serious misconduct and it had a reasonable basis for the belief because of its investigation.

Lake said: “Though the respondent relied on serious misconduct as grounds for dismissal, they still warned the applicant of the possibility of dismissal and gave him an opportunity to respond to the allegations.”

With this, the applicant’s termination was deemed not unfair, and their application for unfair dismissal was dismissed.

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