If an employee uses their company email to apply for another job, can you fire them on the spot?
One employer thought the answer was yes.
The Fair Work Commission had a very different view.
A single email.
A resume attached.
Sent during work hours.
For many employers, that might feel like a clear breach of trust.
But a recent decision of the Fair Work Commission is a reminder that not every breach of a workplace policy amounts to serious misconduct and jumping straight to summary dismissal can quickly land an employer in trouble.
Even when someone is looking for another job.
Josh Westerberg v Volando Group Pty Ltd [2026] FWC 420
In Josh Westerberg v Volando Group Pty Ltd [2026] FWC 420, the Commission found that an employee who sent a job application from his work email during business hours had been unfairly dismissed.
The decision is interesting for HR leaders and employers about:
- proportionality,
- procedural fairness, and
- the legal threshold for serious misconduct under the Fair Work Regulations.
And it highlights a recurring theme we are seeing across unfair dismissal decisions:
React first, investigate later is rarely a winning strategy.
The background to the dismissal
Mr Joshua Westerberg was employed as Operations and National Sales Manager at Volando Group Pty Ltd, an Australian beverage company trading as Volando Tequila.
He commenced employment in mid-2024 under a contract that included provisions restricting personal use of the company email system during business hours. A pretty standard clause in an employment contract.
The contract also allowed termination without notice in circumstances of serious misconduct, including:
- serious or persistent breaches of contractual obligations, and
- wilful or deliberate behaviour inconsistent with the continuation of employment.
On 9 September 2025, the National Sales Director raised concerns with Mr Westerberg about aspects of his work performance. These concerns related to matters such as record-keeping and the scheduling of weekly product tastings.
Later that same day, Mr Westerberg sent an email from his company email account to a contact at Think24hrFitness.
The email expressed interest in potential opportunities and included his resume. In that resume he stated that while much of his career had been in the alcohol industry, he was passionate about health and wellness and interested in transitioning into that sector.
Three days later, Mr Westerberg requested three weeks of personal leave.
While reviewing company records, the co-founder of Volando Tequila discovered the email and formed the view that the conduct represented a fundamental breakdown in the employment relationship.
The employer concluded the conduct amounted to serious misconduct and terminated Mr Westerberg’s employment immediately via email.
No investigation took place.
No disciplinary meeting occurred.
Mr Westerberg was not given an opportunity to respond.
You can probably see where this is going…
The Fair Work Commission’s findings
The Commission accepted that Mr Westerberg had breached the contractual restriction regarding personal use of the company email system.
However, the key legal question was whether that breach amounted to serious misconduct under the Fair Work Regulations.
The Commission concluded that it did not.
While the conduct breached the contract, it was not of the gravity required to justify summary dismissal.
That is probably a bitter pill to swallow for a lot of Employers to hear that.
The Commission emphasised several critical points:
- The legal threshold for serious misconduct is high
The Regulations contemplate conduct such as:
- theft
- fraud
- assault
- serious breaches of safety obligations
- behaviour fundamentally inconsistent with the continuation of employment
Sending one job application from a work email account did not reach that threshold, even though admittedly there is a trust and confidence gap because of this.
- The response must be proportionate
The Commission considered the employer’s reaction to be disproportionate to the conduct.
Even if the behaviour breached company policy, immediate dismissal without notice was not justified.
- Procedural fairness still matters
One of the most significant issues in the case was the complete absence of procedural fairness.
Mr Westerberg:
- was not notified of the allegations
- was not invited to a disciplinary meeting
- was not given an opportunity to respond
- was not offered the chance to have a support person present
The termination occurred without any investigation or discussion.
The Commission also noted that termination payments and accrued entitlements were not paid due to the summary nature of the dismissal.
Taken together, these factors meant the dismissal was harsh, unjust and unreasonable.
The outcome
Mr Westerberg did not seek reinstatement.
Instead, the Commission awarded compensation based on the view that his employment would likely have continued for approximately 15 weeks given the performance concerns that had been raised.
He was awarded:
- $28,374.30 in compensation, and
- $3,404.92 in superannuation
5 lessons: What employers and HR leaders should take from this case
This decision reinforces several key principles that appear repeatedly in unfair dismissal cases.
Lesson 1 – Serious misconduct is a high bar
Not every breach of policy or employment contract will justify summary dismissal.
Employers should carefully assess whether the conduct truly falls within the legal definition of serious misconduct.
Lesson 2 – Summary dismissal should be the last step, not the first
Where trust concerns arise, it can be tempting to act immediately.
But the Commission will closely scrutinise whether the employer overreacted to the conduct.
Lesson 3 – Procedural fairness remains essential
Even where misconduct appears obvious, employers should still:
- put the allegations clearly to the employee
- allow a genuine opportunity to respond
- permit a support person
- consider the response before making a final decision
Skipping these steps significantly weakens a dismissal claim.
Lesson 4 – Proportionality matters
The Commission will always assess whether the employer’s response matched the seriousness of the conduct.
In this case, a one-off misuse of the email system did not justify immediate termination.
Lesson 5 – Manage performance and misconduct separately
The employer had concerns about Mr Westerberg’s performance.
However, those issues had not been formally managed.
Want to test your workplace risk?
This is exactly why we developed the Employment Law Health Check for HR teams and employers.
It is a structured review of your workplace systems including:
- employment contracts
- disciplinary processes
- workplace policies
- procedural fairness frameworks
- termination decision-making
The result is a traffic-light risk report showing where your workplace practices are strong and where they may expose you to claims like this.
If you would like to explore it further, feel free to fill it out here.
Our Employment Lawyers at South Geldard Lawyers have essential expertise in advising on how to prevent and deal with conduct issues.
Feel free to reach out on 07 4936 9100 or via email to Jonathan Mamaril, Director at jmamaril@southgeldard.com.au. All Employers receive an obligation free consultation.
