Commission rejects summary dismissal over single job application sent at work

A recent unfair dismissal decision by the Fair Work Commission (Commission) held that a single job application sent from a company email during work hours fell short of serious misconduct, highlighting the risk for employers who leap straight to summary dismissal without first considering a proportionate and procedurally fair response.

Key facts

The Applicant, Mr Joshua Westerberg, was employed as Operations and National Sales Manager at Volando Group Pty Ltd (Volando Tequila), an Australian-based beverage company. Mr Westerberg had commenced employment in mid-2024 and was engaged pursuant to an employment contract which contained a clause that prohibited use of the company email systems for personal purposes during business hours. Further, it included a clause which stated that Volando Tequila could terminate the employee at any time without notice in circumstances of serious misconduct, including:

“(ii)… any serious or persistent breach of the Employee’s obligations under this Agreement;

“(iv) engaging in wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment;…”

On 9 September 2025, the National Sales Director raised concerns about Mr Westerberg’s work performance with him on a phone call, stating that several tasks relating to company record-keeping and scheduling of weekly tastings had not been completed. On the same day, Mr Westerberg sent an email from his work email account to an external party with the domain name ‘think24hrfitness.com.au’ expressing that he “would love to have a chat with someone if the opportunity presents”. Attached to the email was his professional resume which included a line stating:

“…while most of my career has been focused on the alcohol industry, I am deeply passionate about health and wellness and am eager to transition into this space.”

Three days after sending this email, Mr Westerberg requested 3 weeks of personal leave. The Co-Founder of Volando Tequila, Mr Jesse Ross, discovered the email while reviewing the company’s business records and concluded that it amounted to serious misconduct and a “fundamental breakdown” in the employment relationship, providing a valid reason for his immediate dismissal. Mr Ross deemed that no investigation or disciplinary process was necessary before terminating Mr Westerberg’s employment via email.

Key findings

Deputy President Tony Slevin accepted that the Applicant breached his obligation not to use the company email system for personal purposes under a clause of his employment contract. However, the Commission found that this breach did not amount to ‘serious misconduct’ as defined by reg 1.07 of the Fair Work Regulations 2009 (Regulations). Deputy President Slevin argued that use of Volando Tequila’s email system for personal purposes was not serious misconduct of the kind contemplated by the Regulations.  

The dismissal was found to be disproportionate to the gravity of the conduct alleged. While performance concerns existed, they did not elevate the conduct to a level justifying summary dismissal without access to procedural fairness. Deputy President Slevin further stated that prior to receiving the email for termination, Mr Westerberg was not given the opportunity to respond or to have a support person present in any discussions regarding the dismissal as no such discussions occurred. He further noted that the Applicant had not been paid his termination payments and other accrued entitlements due to the summary nature of the dismissal, which contributed to its unfairness. On these grounds, it was concluded that the termination was unfair.

Although reinstatement was not sought, compensation was awarded on the basis that, given the performance issues, the Applicant would likely have remained employed for only a further 15 weeks. He was awarded $28,374.30 plus $3,404.92 in superannuation.

Key takeaways

In summary, this case highlighted that:

1. The threshold for conduct amounting to ‘serious misconduct’ under the Regulations is high. Using company systems to explore other employment may breach an employment contract, but that alone will not automatically meet the threshold for ‘serious misconduct’.
2. Summary dismissal should be a last resort, not a first reaction. Even where an employer feels trust has been damaged, the Commission will scrutinise whether the conduct truly demonstrates a repudiation of the employment relationship.
3. Procedural fairness is critical, even in cases of serious misconduct. As such, employers should still put clear allegations to an employee, allow a genuine opportunity to respond, not unreasonably refuse a support person and properly consider the employee’s responses prior to making a decision.
4. Proportionality drives the Commission’s analysis of summary dismissal, and it will assess whether the employer’s response aligns with the gravity of the conduct. In this case, immediate dismissal for a one-off misuse of company email systems was viewed as disproportionate, particularly where the performance concerns had not been formally managed.
5. Manage performance and misconduct separately. If performance concerns exist, they should be addressed through a structured and well-documented process. Attempting to rely on a relatively minor policy breach to accelerate an exit strategy may undermine the defensibility of a dismissal.

Learn more

If you’d like to learn more about the topics raised in this article, please call NRA Legal for a confidential conversation on 1800 572 679.

Josh Westerberg v Volando Group Pty Ltd [2026] FWC 420 (10 February 2026)