Worker fired over open-handed slap after 17 years on the job

The Fair Work Commission Full Bench has backed an employer's decision to sack a long-serving factory worker, despite finding serious flaws in how the dismissal was handled.

The decision, handed down on 29 April 2026 by Vice President Gibian, Deputy President Beaumont and Deputy President Slevin, refused permission to appeal an earlier ruling that had cleared ABC Tissue Products Pty Ltd of unfairly dismissing process worker Jamie Ngoc Tran after a workplace altercation.

Tran had worked at the NSW tissue manufacturer since 15 October 2007, starting as a cleaner before moving into a process worker role. By the time he was dismissed on 30 July 2024, he had clocked up nearly 17 years with the company, which employs approximately 700 staff.

The trouble began the night before. On 29 July 2024, Tran was involved in an incident with machine operator Sieng Khantey. Tran's account of the incident shifted between his two witness statements. In his first statement, he said another worker he referred to as "Trey" or "Tey" had twice tried to put a hand into his pocket asking to borrow $200, and that he waved his hand to tell the worker to stop because he believed the worker was trying to pick-pocket his wallet. In his second statement, provided after he had seen the CCTV footage for the first time, Tran said it was Khantey who had reached into his pockets, and that he pushed Khantey away by the chest. Khantey told managers Tran had punched him in the chest.

There was also context from an earlier incident. On 14 June 2024, Khantey alleged Tran had verbally abused him in the lunchroom, kicked the microwave table and the fridge's vegetable crisper, and walked around waving a knife. Tran denied kicking the fridge or wielding a knife, and received a verbal warning over the matter. The Full Bench confirmed the dismissal letter did not rely on the 14 June incident as a reason for termination.

CCTV captured the lead-up on 29 July but not the moment of contact. As Deputy President Wright found at first instance, the footage showed Tran "raises his right arm as if he is about to punch Mr Khantey and makes a fast motion towards Mr Khantey consistent with a punch but the point of contact is not visible on the CCTV."

With no clear video evidence and conflicting accounts, the Deputy President had to weigh the witnesses. She disregarded the evidence of co-worker Sreang Hing due to inconsistencies identified during cross examination and re-examination, and ultimately found Tran had hit Khantey with an open hand, rejected the self-defence argument, and concluded the assault was a valid reason for dismissal.

Here is where the case gets interesting for HR. The Deputy President identified a string of procedural problems with how ABC handled the dismissal. The company did not confirm the allegations in writing before the meeting on 30 July 2024. It did not advise Tran that dismissal was a possible outcome of the meeting. It nominated a support person for him, even though it was aware he was a union member, and never contacted his union. It used a Vietnamese-speaking employee rather than an accredited interpreter. And it failed to provide the CCTV footage to Tran.

The Deputy President noted it was "unusual and rare for an employee with the personal circumstances of Mr Tran to lose a job they had held for over 17 years on the basis of video footage that they had not seen."

Tran also had a disciplinary history, having previously received two warning letters and one verbal warning, with an escalation in the weeks leading up to his dismissal that saw three warnings issued in June 2024. The Deputy President characterised the warnings as having dealt with minor issues and treated them as a neutral consideration.

She also found that Tran's personal circumstances, length of service, use of hearing aids, medical issues and contrition all weighed in favour of a finding that the dismissal was unfair. Even so, she found the dismissal was not unfair overall, reasoning that if Mr Khoshaba and Mr Leng had been aware on 30 July 2024 of all of the matters Tran later put before the Commission, this would not have led to a different outcome.

Tran appealed on multiple grounds, including arguments that the Deputy President applied the wrong legal test, gave insufficient weight to the procedural failings, and overlooked his length of service, his age, his hearing aids, his medical issues, and the personal and economic impact of losing his job. He also alleged the manager who dismissed him was biased because Tran had previously lodged a workers' compensation claim — an assertion the Deputy President characterised as a "theory."

The appeal was heard in Sydney on 16 February 2026, with Tran represented by V Kitoko of Greenfield Lawyers and ABC represented by H Nguyen of counsel, instructed by Australian Business Lawyers & Advisors.

The Full Bench was unmoved. It found no arguable error in the Deputy President's findings, was not satisfied it was in the public interest to grant permission to appeal, and refused permission.

The case is a sharp reminder that a valid reason for dismissal is the strongest defence in an unfair dismissal claim, but it is not a licence to skip the basics. Confirming allegations in writing, flagging that dismissal is a possible outcome, engaging the worker's union when known, using an accredited interpreter for workers from culturally and linguistically diverse backgrounds, and showing employees the evidence against them are not optional niceties. They are the difference between a defensible dismissal and a costly one.