Commission finds dismissal unfair, despite serious misconduct

The Fair Work Commission (Commission) has found that a vessel Master’s conduct demonstrated a “lackadaisical approach toward safety” and provided his employer with a valid reason for dismissal. However, despite the seriousness of the misconduct, the Commission concluded that the dismissal was unfair because the employer failed to provide a procedurally fair disciplinary process before terminating his employment.

The decision serves as a reminder that even where an employer possesses a valid reason for dismissal, procedural fairness must still be upheld. Employers must ensure that employees are given an opportunity to respond to allegations before conclusions are reached and disciplinary action is determined.

Background

The Applicant in Ritter v Curtis Island Services Trading AS SeaLink Whitsundays [2026] FWC 2654 was employed as a casual Master of the Wild Cat vessel operating in the Whitsundays. As a Master, the Applicant held ultimate responsibility for the safe operation of the vessel, including the safety and wellbeing of its passengers and crew.

In June 2025, a deckhand reported what she described as “very unsafe behaviour” by the Applicant. Following an investigation, SeaLink alleged that the Applicant had:

• Slept while on duty aboard the vessel;
• Used his mobile phone while supervising snorkelling activities;
• Openly vaped on board in view of guests;
• Permitted unqualified deckhands to operate the vessel;
• Failed to properly supervise crew;
• Thrown food waste into the water near snorkelling guests; and
• Otherwise failed to comply with company policies and safety requirements.

After investigating the complaints, SeaLink concluded that the allegations were substantiated and terminated the Applicant’s employment.

The Unfair Dismissal Application

The Applicant challenged his dismissal, arguing that the conduct relied upon by SeaLink amounted to little more than “a number of rather innocuous indiscretions” and did not justify termination. While he admitted to sleeping on board on certain occasions, the Applicant explained that he had been experiencing personal difficulties, including the aftermath of a motor vehicle accident, a relationship breakdown and the anniversary of a previous partner’s death.

He also disputed aspects of the allegations relating to snorkel supervision and vessel operation, maintaining that other crew members were present during snorkelling activities and that he was “led to believe” that certain crew members possessed adequate qualifications to operate the vessel.

The Applicant further alleged that the reporting crew members were effectively a group of “mean girls” who were attempting to remove him from the business and that various complaints about him amounted to workplace gossip.

SeaLink maintained that the Applicant’s conduct demonstrated a repeated disregard for safety obligations, workplace rules and company policies, resulting in a loss of trust and confidence.

The Legal Framework

Under section 387 of the Fair Work Act 2009 (Cth), the Commission must consider whether a dismissal was harsh, unjust or unreasonable, including:

• whether there was a valid reason for dismissal related to the employee’s conduct or capacity;
• whether the employee was notified of that reason;
• whether the employee was given an opportunity to respond;
• whether procedural fairness was afforded; and
• any other relevant circumstances.

Importantly, a dismissal may be found unfair even where a valid reason for dismissal exists if the disciplinary process is procedurally deficient.

The Commission’s Findings

1. There was a valid reason for dismissal

Deputy President Lake accepted a significant number of allegations made against the Applicant and found that he had displayed carelessness and poor judgment inconsistent with the responsibilities of a vessel Master.

The Commission found that the Applicant had slept while on board on multiple occasions, used his phone while supervising snorkelling guests, permitted unqualified deckhands to take the helm while he was not maintaining proper supervision, openly vaped on board contrary to company expectations and threw food waste into the water near snorkelling guests.

The Applicant’s decision to allow unqualified deckhands to operate the vessel without adequate supervision was particularly concerning, as well as his use of a mobile phone while guests were participating in a high-risk water activity.

Deputy President Lake described this conduct as demonstrating a “lackadaisical approach toward safety”.

The Commission also regarded the Applicant’s decision to throw food scraps into the water as an act of “irresponsibility and petulance” that had the potential to damage the employer’s reputation.

Importantly, the Commission emphasised that the Applicant occupied a safety-critical leadership role. As Master, he was responsible for the safety and wellbeing of everyone on board. Conduct which may have been viewed differently in a less senior role was assessed against the heightened responsibilities attached to his position.

2. Not every allegation needed to be proven

A noteworthy aspect of the decision was that the Commission did not accept every allegation advanced by SeaLink. For example, the Commission was not satisfied that:

• the Applicant made the alleged comment “I just don’t give a fuck, let them die”;
• all alleged instances of unauhorised vessel operation had occurred; or
• certain other allegations were supported by sufficient evidence.

Nevertheless, Deputy President Lake held that SeaLink was not required to prove every individual allegation. Rather, the Commission considered whether the established conduct demonstrated a pattern of behaviour that justified the loss of trust and confidence relied upon by the employer, and the substantiated allegations were sufficient to provide a valid reason for dismissal.

3. The Applicant displayed little insight into his conduct

The Commission was highly critical of the Applicant’s attitude throughout the proceedings. Deputy President Lake rejected suggestions that crew members had engaged in a conspiracy against him or that legitimate safety concerns amounted to “gossip”.

The Commission observed at paragraph [79] that:

“Calling reports of legitimate safety concerns gossip is trivialising.”

The Deputy President also criticised the Applicant’s repeated references to the female crew members who raised concerns, describing these comments as “condescending at best and sexist at worst”.

4. The disciplinary process was procedurally unfair

Despite finding a valid reason for dismissal, the Commission concluded that SeaLink’s disciplinary process was flawed. The central issue was that SeaLink effectively merged its allegations process and show cause process into a single step.

Deputy President Lake explained that an employer should generally follow a sequence whereby allegations are put to the employee, the employee is given a genuine opportunity to respond, findings are made regarding the allegations and if misconduct is substantiated, then the employee is given an opportunity to show cause why dismissal should not occur.

The Commission found that SeaLink had blended together these stages. In particular, evidence suggesting that the decision-makers viewed the allegations as largely established before receiving the Applicant’s full response was concerning.

At paragraph [112], Deputy President Lake confirmed that:

“This is an issue because the Applicant should be given an opportunity to respond before allegations are found to be substantiated.”

The Commission also found that the Applicant was denied a separate opportunity to respond to the proposed disciplinary outcome after the allegations were determined. As a result, the disciplinary process was described as “rushed and appended” and procedurally unreasonable.

Remedy

The Commission declined to order reinstatement due to the Applicant’s disregard for policies and procedures. Rather, the Commission found that the Applicant would likely have remained employed for only a further 6 weeks had a procedurally fair process been adopted.

Compensation was therefore calculated based on six weeks’ lost earnings and then reduced by 30% to reflect the Applicant’s misconduct.

SeaLink was ordered to pay the Applicant $5,204.39 plus superannuation.

Key Takeaways

Key takeaways from this case for employers include:

• A valid reason for dismissal does not eliminate the need for procedural fairness.
• Employers should clearly separate the allegation, investigation, findings and show cause stages of disciplinary processes.
• Employees should be given a genuine opportunity to respond before allegations are treated as substantiated.
• Where misconduct is established, employers should consider providing a separate opportunity for the employee to explain why dismissal should not occur.
• Safety obligations will be assessed strictly where employees occupy leadership or safety-critical roles.
• In procedural fairness cases, compensation may be modest where the Commission accepts that dismissal would likely have occurred in any event.

Learn More

If you would like assistance with responding to an unfair dismissal claim, or would like to discuss this article further, please call NRA Legal for a confidential conversation on 1800 572 679.

Ritter v Curtis Island Services Trading AS SeaLink Whitsundays [2026] FWC 2654