A dismissal in anger: what employers can learn from an unfair dismissal case
In the recent Fair Work Commission decisions [2026] FWC 2336 and [2026] FWC 3599, a fitness trainer’s employment at a small gym ended during an angry confrontation with the gym owner.
The trainer’s role extended beyond coaching clients. He also cleaned the gym and helped sign up new members. Over time, the relationship between the two men deteriorated.
The gym owner had concerns about the quality and safety of the trainer’s work. The trainer, in turn, had concerns about how the owner treated him.
Those issues weren’t addressed through a structured performance or disciplinary process. Instead, the tension came to a head during a heated exchange. The Commission recorded the trainer’s evidence that the owner made an explicit threat against him and directed him to collect his belongings and leave.
When the trainer challenged his dismissal, the gym owner sought to rely on serious misconduct. However, he couldn’t clearly explain what serious misconduct the trainer had allegedly committed, what evidence supported the allegation or why the conduct justified immediate dismissal.
The Commission found that the trainer had been unfairly dismissed.
The case shows how genuine concerns about an employee’s performance or safety practices can become difficult to defend when they aren’t converted into clear allegations, investigated and put to the employee before a disciplinary decision is made.
Concerns had been building
A small gym is the type of workplace where people work closely together and the owner may be directly involved in day-to-day operations.
There may be no dedicated HR team to step in when a relationship becomes strained. Concerns about performance, safety and workplace behaviour can therefore become personal quite quickly.
The gym owner appears to have held concerns about the quality and safety of the trainer’s work. Those concerns may have warranted management action.
The difficulty was identifying what kind of action was required.
The underlying issue could have involved:
a lack of skill or capability;
a failure to meet the required performance standard;
inadequate training or unclear instructions;
a breach of a safety procedure;
deliberate misconduct; or
a combination of performance and conduct issues.
Each possibility required a different response. The gym owner needed to establish what had happened before deciding how serious it was and what action should follow.
Performance and misconduct are different issues
A manager will often know that something has gone wrong before they know why.
For example, an employee may fail to follow a safety procedure because they weren’t properly trained, misunderstood the instruction, made an honest mistake or deliberately refused to comply.
Those circumstances may produce the same immediate result. They don’t carry the same level of personal responsibility.
Where the concern involves capability or performance, the manager will generally need to:
identify the expected standard;
explain how the employee is falling short;
determine whether further training or support is required;
set clear expectations; and
provide a reasonable opportunity to improve.
Where the concern involves possible misconduct, the organisation will generally need to:
identify the particular conduct in question;
gather the available evidence;
put clear allegations to the employee;
consider the employee’s response;
make findings about what occurred; and
decide whether disciplinary action is appropriate.
In this case, the concerns about the trainer’s work were never clearly defined as performance issues, misconduct allegations or specific safety breaches before the employment relationship broke down.
The serious misconduct wasn’t clearly identified
The gym owner later maintained that the trainer had engaged in serious misconduct.
However, a general concern that an employee’s work is unsafe or unsatisfactory doesn’t tell the employee what they are alleged to have done.
A procedurally fair allegation should ordinarily identify:
the act or omission alleged;
when and where it allegedly occurred;
who was involved;
the surrounding circumstances needed to understand the allegation; and
the policy, procedure, direction or expected standard that may have been breached.
For example, an allegation that a fitness trainer “used unsafe training methods” may be too broad.
A clearer allegation would identify the particular training session, the instruction or exercise used, the safety requirement said to have been breached and what the trainer allegedly did or failed to do.
That detail allows the trainer to explain what happened. It may also identify whether the issue arose from misconduct, an error, an unclear procedure or inadequate training.
The Commission found that the gym owner hadn’t adequately explained the serious misconduct allegedly committed by the trainer or the reasonable grounds for believing it had occurred.
What should have happened next
Once the owner identified a possible performance or safety issue, the next step should have been to gather the available evidence.
In a gym or similar workplace, that evidence might include:
the trainer’s qualifications and training records;
the gym’s safety procedures;
instructions previously given to the trainer;
incident or injury records;
CCTV footage;
membership or client complaints;
text messages or emails;
accounts from clients or other staff; and
the trainer’s explanation.
The process should also examine information that challenges the initial concern.
A client may have misunderstood an instruction. Another trainer may have used the same technique. The relevant procedure may have been unclear. The employee may never have received the training the organisation assumed had been provided.
The purpose of the investigation is to determine what occurred. That requires testing the original concern against all the available evidence.
The relationship ended during a confrontation
Before any structured process took place, the working relationship reached breaking point.
The Commission recorded the trainer’s evidence that, during a heated exchange, the gym owner threatened him and told him to collect his belongings and leave.
By that point, the concerns about the trainer’s work had become entangled with the personal conflict between the two men.
That creates a serious risk for any disciplinary process. When emotions are running high:
concerns may be expressed in exaggerated or generalised terms;
assumptions may replace evidence;
the employee may not understand what they are being accused of;
the manager may stop listening to the employee’s explanation;
the outcome may be decided in the moment; and
the breakdown in the relationship may influence the disciplinary decision.
A manager who is directly involved in a confrontation may no longer be the appropriate person to investigate the matter or decide the outcome.
Managing the immediate risk
There may be circumstances where a manager needs to act immediately.
For example, an employee may need to be removed from certain duties because of a genuine safety concern. The organisation may also need to protect clients, preserve evidence or prevent interference with witnesses.
Immediate risk management and the final disciplinary decision should be treated as separate steps.
Subject to the organisation’s legal, contractual and policy obligations, interim action might include:
directing the employee to stop performing a particular task;
allocating alternative duties;
increasing supervision;
restricting access to particular systems or locations;
issuing a temporary direction about contact with witnesses; or
standing the employee down where there is a lawful basis.
The organisation can then investigate the concerns without treating the interim measure as proof that misconduct occurred.
The employee needed a genuine opportunity to respond
A fair opportunity to respond involves more than asking for the employee’s version after the outcome has effectively been decided.
The fitness trainer needed to know what conduct was alleged and why it was considered serious. He then needed a reasonable opportunity to provide his account.
His response may have:
identified another witness;
explained the reason for a particular training decision;
challenged the interpretation of an incident;
identified an inconsistency in a complaint;
raised a training or systems issue; or
provided other information requiring further enquiries.
A response that raises a material factual issue should be investigated before findings are made.
When independence is needed
The gym owner was personally involved in the conflict that led to the trainer’s dismissal.
In a larger organisation, a manager in that position would ordinarily need to step away from at least part of the process.
An independent investigator or another manager may be required where:
the manager witnessed or participated in the alleged conduct;
the employee has made allegations about the manager;
the manager has already expressed a concluded view;
the working relationship has become highly adversarial;
the allegations involve senior personnel; or
the outcome may expose the organisation to significant risk.
Independence helps ensure that the evidence is assessed objectively and that the employee’s response receives genuine consideration.
Keep factual findings separate from disciplinary action
The investigation should establish what happened.
The disciplinary decision should consider what action, if any, should follow from those findings.
In many organisations, these functions are performed by different people. The investigator makes findings about the allegations, while an authorised manager considers the appropriate employment response.
A substantiated allegation doesn’t automatically require dismissal. The decision-maker may also need to consider:
the seriousness of the conduct;
whether it was deliberate, reckless or inadvertent;
the actual or potential consequences;
the employee’s explanation;
the employee’s disciplinary and performance history;
any mitigating circumstances;
the organisation’s policies; and
consistency with comparable matters.
Keeping the roles separate reduces the risk that an investigation will be shaped towards a preferred disciplinary outcome.
Key takeaways for managers
Identify the people involved and their relationship to the events.
Decide whether the concern involves performance, misconduct, safety or a combination of issues.
Address concerns before they develop into personal conflict.
Convert general concerns into clear and particularised allegations.
Gather evidence that both supports and challenges the allegations.
Give the employee sufficient information and a genuine opportunity to respond.
Make further enquiries when the response raises a relevant factual issue.
Separate immediate risk management from the final disciplinary decision.
Appoint an independent investigator where the manager is personally involved or has already formed a view.
Keep investigation findings separate from the decision about disciplinary action.
Document the evidence, findings and reasons for the outcome.
The gym owner may have held genuine concerns about the trainer’s work. The problem was that he couldn’t demonstrate a clear and reasonable process connecting those concerns to a finding of serious misconduct and immediate dismissal.
Frequently asked questions
How do I decide whether a concern involves poor performance or misconduct?
Consider why the employee failed to meet the required standard. A lack of capability, training or understanding will generally point towards performance management. A deliberate or unreasonable failure to comply with a known obligation may involve misconduct. Establish the relevant facts before choosing the process.
How specific should a misconduct allegation be?
The allegation should identify what the employee allegedly did or failed to do, the approximate time and place, who was involved and the relevant surrounding circumstances. It should also identify any policy, direction or expected standard that may have been breached.
Can I remove an employee from duties while the matter is investigated?
Interim action may be appropriate where there is a genuine safety, integrity or operational risk. The organisation should confirm its authority, choose a proportionate measure and make clear that the action is temporary and doesn’t represent a finding of misconduct.
What should I do if the employee’s response raises new evidence?
Consider whether the information could affect the findings. Further enquiries may be required, including obtaining documents, interviewing another witness or giving the employee an opportunity to address additional adverse material.
Can the employee’s manager conduct the investigation?
That depends on the circumstances. A manager may be able to investigate a straightforward matter where they aren’t involved and haven’t formed a concluded view. An independent investigator should be considered where the manager participated in the events, is the subject of allegations or may reasonably be perceived as lacking impartiality.
Read the Fair Work Commission liability decision: [2026] FWC 2336
Read the subsequent decision: [2026] FWC 3599
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This article is general commentary based on a published decision and does not constitute legal advice. Names and identifying details have been removed.