A Victorian scaffolding business has been ordered to pay $10,381.50 to a leading hand scaffolder it dismissed on 19 March 2026. The dismissal was over a scaffold it said he had based out unsafely on a Geelong job. The employer relied on photos and a site manager’s report but never showed the worker the photos. Deputy President Masson found that this failure meant the employer’s belief in serious misconduct was not held on reasonable grounds.
The worker was a full-time Leading Hand Scaffolder on an annual salary of $120,000 plus superannuation, with a phone and a company vehicle. He was covered by the Building and Construction General On-site Award 2020. He started on 9 January 2023. He lodged his application under s 394 of the Fair Work Act 2009 on 9 April 2026. The application was brought against Brief Access Pty Ltd, the principal trading entity of the Brief group, which runs a scaffolding business in Victoria from a site in Doveton. The worker was employed by Brief Labour Co Pty Ltd, a group company set up partly to employ labour-hire staff, and the decision treats that company as the respondent.
At a glance
- Parties: A leading hand scaffolder v Brief Access Pty Ltd
- Citation: [2026] FWC 4165, Deputy President Masson, 26 October 2026
- Section: Fair Work Act 2009, ss 394, 388 (Small Business Fair Dismissal Code), 387, 392
- Outcome: Code defence rejected, dismissal unfair, reinstatement inappropriate, $10,381.50 compensation within 14 days
- Who it affects: Small business employers relying on the Code’s summary dismissal limb
A small business, but not a Code-compliant dismissal
The employer raised a jurisdictional objection. It said it was a small business and had complied with the Small Business Fair Dismissal Code. The Code is declared by the Minister under s 388 and applies to employers with fewer than 15 employees.
that the employer had more than 14 employees once staff at Coast Scaffolding in Geelong were counted. He said a director owned or controlled that business, which made it an associated entity under ss 50AA and 50AAA of the Corporations Act 2001 (a related company whose staff count towards the small business threshold).
that the director had sold his controlling interest in Coast Scaffolding at the end of 2025 and kept a 19% minority stake with no management role. It said the group had 10 employees on 19 March 2026. It also said it believed on reasonable grounds that the Geelong scaffold was a serious safety breach. Those grounds were the photos and a direct report from the Coast Scaffolding site manager. The Geelong job also came straight after a warning about another job.
that Coast Scaffolding was not an associated entity, so the employer was a small business with 10 staff. He also found that the dismissal was not consistent with the Code.
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures.
The Deputy President applied the two-step test from the Full Bench decision in Pinawin v Domingo [2012] FWAFB 1359. First, did the employer hold the belief? Second, was the belief based on reasonable grounds, including a reasonable investigation? He accepted that the belief was held. But a director had not inspected the Geelong site and relied on what the site manager told him. In those circumstances, the decision said, “a reasonable investigation in the context of this case required the Applicant to be provided with reasonable information including photos of the scaffolding issues.”
The director said under cross-examination that he had shown the worker the photos. The worker denied it, and the business manager could not recall it. The Deputy President preferred the worker’s account. He found the failure “effectively denied the Applicant an opportunity to respond to the allegations in an informed or reasoned manner.”
Photos that did not show who did the work
On the merits under s 387, the Deputy President found there was no valid reason for the dismissal. The photos showed uneven sole boards, with the screw jacks on them not sitting flush. The worker accepted in evidence that this was unsatisfactory scaffolding. But the photos carried no date or time stamp. Both directors conceded nothing in them linked the work to the worker.
The site manager filed a witness statement but did not attend to be cross-examined. The Deputy President gave his statement no weight. He said the employer’s case relied “solely on hearsay and the photos” (hearsay being second-hand evidence of what someone else said), which “provides a fragile base” for a finding. The worker’s evidence was unchallenged on two points. The job was unfinished when his crew left on 16 March 2026, and conditions on the wet, steep hillside were difficult. The Coast Scaffolding crew finished the east scaffold.
Applying the Briginshaw standard of proof, which the worker had invoked, the Deputy President found the worker’s responsibility for the Geelong scaffold was not established.
The worker’s company vehicle had damage he had not reported, and the employer said this added to its loss of trust. The Deputy President found the failure to report was misconduct, but not a valid reason for dismissal. There was no evidence of how severe the damage was. The employer also could not produce a copy of its vehicle policy signed by the worker.
The dismissal itself happened in the factory shed when the worker returned a truck. He had no notice of a disciplinary meeting. The business manager accepted that the meeting was not as “structured” as she would have preferred. The Deputy President found the dismissal unreasonable for lack of a valid reason and unjust for the procedural failures. He gave some weight to the employer’s size, its lack of human resources expertise and the earlier warning, but found these were outweighed.
What happened after the dismissal
Both sides gave lengthy evidence of a physical altercation that followed the dismissal, over the return of the work phone. The worker alleged that a director punched and kicked him, and that the business manager grabbed him by the throat. The business manager denied grabbing him. The director said he struck the worker 3 to 4 times after seeing him hit the business manager in the face, and denied a second assault alleged by the worker. The worker denied hitting her.
The Deputy President declined to decide who did what. He recorded only certain events. The worker refused to return the phone immediately. He then reset it to factory settings, wiping company information. There was some physical contact between the worker and the business manager. There was at least one altercation in which the director struck the worker several times. The decision said: “The key point is that all of this conduct occurred post-dismissal and cannot be relied on to establish a valid reason for dismissal.” The Deputy President said such conduct could have been relevant to remedy had the worker sought reinstatement, which he did not. He found reinstatement inappropriate.
Six weeks of pay, less 25%
The Deputy President applied the Sprigg formula, the well-established method for calculating unfair dismissal compensation. Under the Full Federal Court decision in He v Lewin, the Commission must find how long the employment would likely have lasted. The worker said he expected at least two more years. The Deputy President rejected that. He pointed to unchallenged evidence that the worker’s performance had declined over 2024 and 2025, and that he had been told in January 2026 to improve. In February 2026 he signed off scaffolding on a Brunswick job that he later conceded did not meet Australian Standards, and he was verbally warned on 13 March 2026. The Deputy President found he would not have remained employed for more than six more weeks.
At weekly earnings of $2,307, six weeks came to $13,842. The worker earned $53,796.86 in a new job from about 18 May 2026 to 4 October 2026. None of it fell within the six weeks, so there was no deduction. The Deputy President then cut the amount by 25% under s 392(3) for misconduct that contributed to the dismissal: the unsafe Brunswick scaffolding and the unreported vehicle damage. That left $10,381.50 in compensation, payable within 14 days.
$10,381.50compensation ordered, after a 25% cut for misconduct
There was also a separate dispute over pay. The worker said $1,745.69 was deducted from his final pay for vehicle damage without notice or agreement. The employer said the deduction was consistent with his employment agreement and its vehicle policy. The decision makes no finding on it.
The decision treats showing the employee the evidence as part of a reasonable investigation under the Code’s summary dismissal limb, at least where the decision-maker has not seen the problem first-hand and already holds the material. Without that step, a belief of serious misconduct, even about a safety breach, did not satisfy the Code.
Source: [2026] FWC 4165
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