Alyssa Lo v Maf Assist Limited - [2023] FWC 2605

[2023] FWC 2605

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Alyssa Lo
v

Maf Assist Limited

(U2023/4435)

DEPUTY PRESIDENT SLEVIN

SYDNEY, 11 OCTOBER 2023

Application for an unfair dismissal remedy

Ms Alyssa Lo has made application for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (FW Act). Ms Lo alleges that she was unfairly dismissed from her employment with MAF Assist Limited (MAF). Ms Lo seeks an order that she be paid compensation. MAF contends that Ms Lo was not dismissed but resigned. MAF further contends that if Ms Lo was dismissed the dismissal was not harsh, unjust or unreasonable.

At the hearing Ms Lo represented herself. MAF sought permission pursuant to s.596 of the Act to be legally represented. There was some complexity in the arguments MAF wished to put as to whether Ms Lo had been dismissed. Permission was granted as I was of the view that legal representation would enable the matter to be dealt with more efficiently.

When can the Commission order a remedy for unfair dismissal?

Section 390 provides that the Commission may order a person’s reinstatement, or the payment of compensation to a person if satisfied that the person was protected from unfair dismissal and the person has been unfairly dismissed. There was no argument that Ms Lo was protected from unfair dismissal, and I am satisfied that she was. The argument was that she was not dismissed or in the alternative she was not unfairly dismissed.

Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; an

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

It was not contended that MAF was a small business employer. Nor was it contended that Ms Lo’s termination was due to redundancy. Consequently, ss 385(c) and (d) do not apply.

The dispute is first, whether Ms Lo was dismissed and second, if she was dismissed, whether her dismissal was harsh, unjust or unreasonable.

Evidence

Ms Lo gave evidence in her case. That evidence comprised written statements and documentary evidence. Ms Lo was cross examined on her material. MAF relied on statements from four witnesses. Three were managers; Mr Edgar Voigts, Relationship Manager, Mr Kelvin Maistry, Finance Manager and, at the date of Ms Lo’s termination of employment, Interim General Manager, and Mr Kuren Galant, Human Resources Manager. Mr Galant provided two statements. A statement was also provided by Ms Lo’s Team Leader Mr Mike Swanton. Attached to the respondents’ statements were various documents. MAF’s witnesses were not cross examined.

Ms Lo was cross examined. I was invited to make credit findings in relation to Ms Lo. In particular, I was asked to find that she was not a frank or responsive witness. I did not regard Ms Lo to be anything but frank and responsive. It is the case that in giving her evidence she had a tendency to give lengthy answers and was at times argumentative. I consider this was more a factor of her representing herself and at times not appreciating the difference between evidence and submission. I do not regard this as sufficient to doubt the veracity of her responses. I decline to make adverse credit findings in relation to her evidence.

Further, much of the evidence as to events was contained in contemporaneous documents such as emails, text messages, reports and correspondence. I was provided with anonymous communications by Ms Lo which were received subject to weight. The statements provided by both parties included commentary and speculation as to the motivations of others. In these reasons I give no weight to anonymous communications and no weight to commentary and speculation as to the motivations of others. Many of the key documents were relied upon by both parties. Those documents also contained accounts of events and conversations, which included commentary and speculation as to the motivations of others. Similarly, I give no weight to the commentary and speculation found in those documents. There was little contest, however, over the events that led to the termination of Ms Lo’s employment. The contest was about how those events should be construed.

Background

MAF is a Christian Organisation providing aviation services for people living in remote areas around the world. It serves isolated communities by providing essential goods such as medical care and emergency food parcels.

Ms Lo was employed as a Church Relationship Coordinator. She commenced in November 2021. She was part of a team of six employees involved in fundraising. Her role involved administrative tasks and making telephone calls to church organisations. The team was required to build relationships, raise awareness of MAF’s activities, and raise money to fund MAF’s ongoing services. A particular fundraising initiative introduced in late 2022 was known as the Fathers’ Day Appeal. It involved raising $500,000 by seeking donations from 900 congregations. The aim was to raise those funds by Fathers’ Day 2023. At the end of 2022 a means of electronically tracking the targets for the Appeal was developed. It was known as the dashboard and it recorded the calls that each team member was making and set targets which later became key performance indicators or KPIs. The Fathers’ Day Appeal, the dashboard, and the KPIs became contentious issues for MAF in early 2023. Employees were concerned that the KPIs were unreasonable and Ms Lo, in particular, regarded the KPIs as constituting unwarranted micromanagement.

MAF had no issue with Ms Lo’s performance during the first 12 months of her employment. Her team leader stated that he began to have concerns about performance when Ms Lo reduced the frequency of the fundraising calls in December 2022 and January 2023. Ms Lo responded that fewer calls were made during this period because she believed that the school holiday period was not an appropriate time to be seeking funds to meet a target that had a deadline for September 2023.

On 19 January 2023 Ms Lo sent a message to her co-workers expressing concern that the team did not have a unified vision. The message suggested a planning day to ensure that everyone was ‘on the same page’. As a result of Ms Lo’s suggestion, a number of team meetings occurred during February and March 2023. At those meetings the team discussed the approach that should be taken to fundraising. The meetings included discussions about the Fathers’ Day Appeal and whether that was an appropriate focus for the teams’ work. The accounts given of those meetings show that Ms Lo raised concerns that there was inflexibility in the approach of management. The managers were concerned that Ms Lo was dismissive of the way they were managing the team. Following those meetings MAF determined to continue to focus on the Fathers’ Day campaign, to continue to use the dashboard, and decided to develop KPIs as a measure of both the team’s performance and the performance of individual team members. Mr Swanton gives an account that following the team meetings he was required to develop the KPIs.

Arising from the team meetings a series of meetings occurred between Mr Voigt and Ms Lo in March and April 2023. There was also a meeting between Mr Maistry and Ms Lo in late March 2023. Mr Voigts says he met with Ms Lo on 16 March 2023 to discuss Ms Lo’s contributions during the team planning day and discuss issues raised by Ms Lo about the direction MAF was taking. At that meeting Mr Voigt raised criticism of Ms Lo’s contribution to team planning meetings and her blunt and abrasive tone. He thought in particular that Ms Lo was dismissive of her team leader Mr Swanton. Mr Voigts says that he regrettably said to Ms Lo that she was responsible for the positivity in the team evaporating. Ms Lo’s account of the meeting is that Mr Voigts was angry and frustrated and said that it would have been better if she had not joined MAF in the first place. Mr Voigts does not recall using those words, but he did regret what he had said to such an extent that he said he believes he met with Ms Lo the following day and apologised for his conduct. Ms Lo says that there was no apology until 21 April 2023. A further meeting occurred on 30 March 2023. Mr Voigts says the meeting involved a mediator who was tasked with attempting to resolve the issues that had arisen at the 16 March meeting. According to Mr Voigt, Ms Lo and Mr Voigt agreed that their disagreements would be left in the past and they would in future be respectful of one another. Ms Lo says that this meeting did not occur until 21 April 2023. I prefer Ms Lo’s account of the timing of this meeting. Ms Lo also refers to a further meeting on the 31 March 2023 where Mr Voigts made disparaging comments about her conduct and attitude.

Nothing turns on the discrepancies about the timings of the meetings between Ms Lo and Mr Voigts in March and/or April 2023. Mr Voigts was not cross examined about his recollections. His written statement is not worded in definite language. It uses expressions such as he ‘believed’ certain events occurred on particular days and that he did ‘not recall’ saying specific things. I am inclined to accept Ms Lo’s account of the timing and content of the meetings. There is little contest about the substance of the meetings. Mr Voigts expressed his concerns about Ms Lo’s approach to her work and her attitude towards MAF which he viewed as disrespectful. He did so in what was at times an angry and aggressive manner. As a consequence, Ms Lo felt distraught and unable to express her point of view or adequately respond. Mr Voigts later acknowledged that he acted inappropriately and apologised. Ms Lo and Mr Voigts agreed to put these disagreements behind them. I note that no warnings were issued to Ms Lo about her performance or conduct arising from these interactions.

Mr Maistry describes a meeting with Ms Lo around the same time, on 24 March 2023. He says the meeting was to discuss the Fathers’ Day targets and Ms Lo’s future with MAF. On the first issue he says Ms Lo told him there was too much focus on the Fathers’ Day campaign, and the failure to consider new ideas indicated bad management on the part of her line managers. On the second issue he states that Ms Lo said if management were not open to new ideas she did not see a future at MAF.

The meetings with Mr Voigts and Mr Maistry are relevant to the events which followed. Ms Lo’s account of and reaction to the meetings is recorded in a lengthy written report she made to MAF’s Human Resources Manager Mr Galant on 5 April 2023. Mr Galant’s evidence is that he was handed the report by Ms Lo towards the end of that day and Ms Lo asked that the contents of the report be kept confidential.

The report dealt with many workplace issues that were causing Ms Lo concern. In the report Ms Lo identifies her message of 19 January 2023 as having started a chain of events that led to concerns about the way she had been treated at work. The matters covered in the report included an explanation of Ms Lo’s view that the focus on the Fathers’ Day campaign and the related dashboard and KPIs were causing undue pressure and disunity in the team. It described the meetings about the way the team was operating as having led to a series of conversations and accusations against her in meetings with Mr Voigts and Mr Maistry. Ms Lo provides her account of the meetings with Mr Voigts on 16, 30 and 31 March 2023. She also provided an account of the meeting with Mr Maistry on 24 March 2023. The report gives an account of other issues such as Mr Swanton challenging Ms Lo about taking personal leave. It also asserts that a series of communications between Mr Maistry and Ms Lo around Christmas 2021 and early 2022 were inappropriate. Ms Lo described her present state of mind as being one of mistrusting Mr Voigts and Mr Maistry and feeling that Mr Swanton was treating her with disdain. In her report Ms Lo stated that the current leadership lacked encouragement, was task oriented, and gave no incentives or motivation. She said that she had been unable to sleep due to constantly thinking about problems in the workplace. Ms Lo also pointed out that she believed she had been targeted for raising issues in the workplace and felt undervalued, uncomfortable, and frustrated. The report requested intervention to improve workplace culture by way of a review and audit by an external party.

Mr Galant met with Ms Lo the following day to discuss the contents of the report. He asked about her well-being and agreed that engaging an external consultant was the best way to address the concerns raised. A consultant was engaged.

A meeting with the consultant occurred on 26 April 2023. By this time Ms Lo had met with Mr Voigts who had apologised for his conduct during the March meetings and they agreed to put their disagreements behind them. Ms Lo attended the meeting with the consultant with a colleague, Ms Temu. Ms Temu attended in a support role but was invited to contribute to the discussion. A record of the meeting signed by Ms Lo and the consultant was provided in evidence by Mr Galant. The meeting dealt first with Ms Lo’s role. It sets out Ms Lo’s concern that the Fathers’ Day campaign had become the focus of her job and her concern that when employed she was not told that she would be engaged solely in fund raising. Ms Temu confirmed that this was a concern within the team, many of whom struggled to meet the targets set. Ms Lo accepted that the targets set for the campaign needed to be met. And that she was committed to assisting in meeting them as best she could.

The discussion then turned to Ms Lo’s email of 19 January 2023. Ms Temu confirmed that the concern raised was widely held within the team. The discussion referred to Mr Voigts’ hostile response to the matters raised by Ms Lo and that tension between Ms Lo and Voigts had been resolved as both parties had agreed to put the issues in the past and focus on the future. The issue of Mr Swanton challenging Ms Lo’s sick leave was addressed next. The consultant agreed that the conduct of Mr Swanton was inappropriate and that training on the management of leave was needed. The complaints about Mr Maistry’s communications with Ms Lo over Christmas and New Year in 2021/2022 was also discussed. Mr Maistry’s approach to management generally was also discussed and concern was raised by both Ms Lo and Ms Temu. It was agreed that this could be dealt with without the need for a formal complaint from Ms Lo and that all of the issues raised could be dealt with through training for all staff on matters such as sexual harassment, bullying and discrimination. The consultant indicated that recommendations would be made that the training occur. This was expected to lead to a more professional approach by managers in future. The final issue discussed was Ms Lo’s concern that there had been breaches of confidence as a number of private conversations with colleagues about her future with MAF had been raised with managers. This issue was addressed by the consultant indicating that Ms Lo might be less open about her intentions in future, but even so, such disclosures should not lead to victimisation or altered treatment in future.

The record of the meeting concludes with the heading ‘Agreed action’. Ms Lo agreed to not proceed with a formal complaint. MAF committed to training for all employees, particularly management, on issues of bullying and harassment, sexual harassment, and professional boundaries and management. It was also agreed that the report to Mr Galant be kept confidential. The record indicated that a report would be provided by the investigator to Mr Galant outlining the discussion and making recommendations as agreed. Mr Galant describes receiving the record of meeting and report from the consultant. If there was a separate report, I was not provided with it. It appears that the record of meeting constituted the report. Mr Galant stated that the recommendations for staff and management training as well as policy review was communicated to the chair of the MAF board, in the absence of management, and the recommendations were accepted. Mr Galant also stated that a plan for training and review was being pursued. No such training had occurred prior to the termination of Ms Lo’s employment.

From Ms Lo’s perspective things did not improve after 28 April 2023. The events that followed led Ms Lo to provide Mr Galant with a further personal report. The report was written on 11 May 2023 and into the early hours of 12 May 2023. It is a lengthy report of 16 pages and over 9,000 words. It was provided to Mr Galant in an email sent at 3.11am on 12 May 2023. The email asked that the further report be kept confidential. Ms Lo’s evidence is that after she sent the email she cried herself to sleep. The email is significant because MAF relies upon it as notice of resignation. It underpins the contention that there was no dismissal as Ms Lo resigned her employment.

The covering email was addressed to Mr Galant and Ms Megan Welcome who also worked in HR. It was as follows:

Hi Kuren and Megan,

Please see attached my personal report of events.

I have chosen to not participate in the KPI meeting with Kelvin, Edgar and Mike. This is my final decision.

I have spoken to my team members Jon, Michelle and Ken, the people who I was contemplating inviting to this meeting. We were unanimous in our decision that the meeting is futile without a CEO. It is no question, and they each said this straight off the bat. Whatever we say falls on deaf ears, and we have already had the exact same meetings previously, multiple times, in the past six months.

In light of this, I would rather expose myself, look bad or “defiant” as Edgar would call me, or let the managers and Mike have whatever ammunition they want against me, and say or think whatever they want- than put my team members through more mental strain and drain them. They have been through enough already, and are tired of this whole process. Another arduous, ineffective meeting would only serve to drain them for no good cause and we will be worse off than before. I can say this, because it has already happened. I am not putting my team members through yet another unnecessary meeting, especially when this meeting is ultimately my responsibility. To me it’s not a question.

I will be handing in my official resignation letter this Monday, the 15th of May.

In providing two weeks’ notice as per the requirements on my contract, my final day at MAF will be the Monday, the 29th of May.

My reasoning and all thinking are outlined in this report which is connected to the first personal report I submitted on the 5th of April.

I hope that through my documentation of events, and insights from both myself and my team members, that this can help with future positive change being enacted for the sake of this ministry, as well as provide context for the new CEO coming in.

I would ask for you to please keep the information about my resignation confidential, till I have submitted my official resignation letter on Monday.

Thank you for all the support.

Thank you Kuren for being caring, seeking to understand, and for your integrity always shining through in all situations.

And thank you Megan for being my second mum and most amazing God send to my life ❤ I value and appreciate you greatly.

The report attached to the email sets out events since 5 April 2023, when the earlier report was made. It referred to a heated discussion with Mr Swanton on 11 April 2023 over meeting phone call targets. The report mentioned a meeting with Mr Voigts on 21 April 2023 where Mr Voigts apologised for getting emotional and agreed with Ms Lo that that they could continue to work together without the need for mediation. As noted above Mr Voigts in his statement makes no mention of this meeting. Consistent with my finding about Mr Voigts recollection of when meetings occurred, I accept the account provided in Ms Lo’s report about this meeting and that it occurred on 21 April 2023. The report referred to a team meeting on the afternoon of Friday 28 April 2023 where Mr Swanton relayed a concern raised by Mr Voigts that employees were clock watching. Ms Lo understood that to be a reference to her and Ms Lemu who had started work early the previous day to attend a church event and left work earlier than usual. Ms Lo responded at the meeting that she understood hours could be worked flexibly in such circumstances. When she asked if she should take it up with more senior management she was told there was no need to. On Tuesday 2 May 2023 Ms Lo took sick leave and on Wednesday Mr Swanton asked her the nature of the illness. Ms Lo’s concern about this was that it was a further example of Mr Swanton inappropriately challenging sick leave, a matter dealt with in her earlier report to Mr Galant. The report gives various accounts of Ms Lo and other team members encounters with Mr Swanton over meeting the Fathers’ Day targets in early May 2023. On Wednesday 5 May 2023, Mr Swanton met with Ms Lo to tell her how she was not meeting targets. The report gives an account of an exchange between another team member and Mr Swanton on Monday 8 May 2023 where Mr Swanton asserted that the team should only be focussing on Fathers’ Day targets. Ms Lo’s concerns was that at earlier meetings assurances had been given that other aspects of the team’s relationship building role would be restored.

The report deals with events on 10 and 11 May 2023 which are significant to allegations that are made in the proceedings about Ms Lo’s conduct. It records that in the morning of Wednesday 10 May 2023 Mr Swanton knocked on Ms Lo’s office door and asked if he could come in. Ms Lo states that she gave no response and Mr Swanton walked in, sat down, and moved his chair close to Ms Lo’s chair. Mr Swanton then showed Ms Lo his laptop so she could see her call list. He said that her numbers were very bad and that it was not good enough. Ms Lo says she responded by saying that she did not want to discuss the matter at that time. According to the report Mr Swanton responded that was not good enough. The report describes his tone as demeaning, condescending and authoritarian. Ms Lo repeated that she was not continuing the conversation and walked out of her office. Mr Swanton followed Ms Lo saying that the matter should be taken up in Mr Voigts’ office. Ms Lo, as she was walking away, again said that she would not discuss the matter.

Mr Swanton’s version of this conversation is not dissimilar to that set out in the report. He states that he had sent an email to the team on Monday 8 May 2023 concerning reviews of KPIs. The email said he would be holding the first monthly review of KPIs with each of them either first thing or at the end of the day and asked each to specify which day they would like to meet. He said that only one member of the team responded with a specific time, and he took that to mean the others did not mind when he spoke with them. He says he went to Ms Lo’s office on 10 May 2023 while she was in the kitchen. When she returned, he moved his chair closer to her and opened his laptop. He agrees that he said her contact numbers were unsatisfactory. His account is that Ms Lo became agitated, stood up and walked out. He agreed she said she was not interested in having that conversation at that time. Both the report and Mr Swanton record that Ms Lo said she did not want to discuss the matter until the new CEO had commenced. His evidence is that he asked Ms Lo if she was walking away from him. He agrees that he followed her out of the office and she again said that she was not going to have a conversation with him until the new CEO started. Mr Swanton describes Ms Lo as being in a highly emotional state. He stated that he said words to the effect of let’s go and talk to Mr Voigts about this. There are slight differences in the accounts given of this encounter, but I do not consider them significant. Mr Swanton wanted to discuss Ms Lo’s KPIs. Ms Lo refused and when Mr Swanton suggested the matter be taken up in front of Mr Voigts, Ms Lo said no.

After the exchange with Mr Swanton, Ms Lo sent an email to Mr Swanton at 11.11am on 10 May 2023 which said “Happy to meet for this. However I will not be meeting with you until the CEO has arrived and is involved in the conversation.”. Mr Swanton sent the email to Mr Voigts at 11.15am. Mr Swanton states that he was instructed by Mr Voigts to send, and did send, the following email:

Hi Alyssa, In response to the Interaction we had this morning, and as a consequence of the email you sent me, there will be a meeting tomorrow at 10am with Kelvin, Edgar and myself that you are required to attend. You may choose to invite someone from the Sydney office, I will need their name this afternoon so they can be included in the meeting invitation.

Ms Lo’s report states that in the afternoon of 10 May 2023 Mr Swanton approached her in the kitchen and told her she would be required to attend the meeting the following day to which she replied she would not be having any further conversation, nor would she be attending a meeting. Ms Lo said she then received the email Mr Swanton had been directed to send requiring her to attend a meeting. The report recounts Mr Maistry approaching Ms Lo as she was responding to the email. Mr Maistry said that they would be meeting the following morning. Ms Lo told Mr Maistry that she would not be attending a meeting until the new CEO was involved. Mr Maistry responded that he was the acting CEO and that the new CEO would not be commencing until May. Mr Maistry said that the meeting was about performance issues. Ms Lo responded that the meeting would not assist as the matters had already been discussed on many occasions. Mr Maistry gave an account of his exchange with Ms Lo on the afternoon of 10 May 2023 that did not differ in any material way to Ms Lo’s account.

After the exchange with Mr Maistry, Ms Lo responded to Mr Swanton in an email which read:

Like I have stated in my previous email, I will not be participating in this meeting till the official CEO has arrived and is involved in this conversation.

As a result of this morning’s meeting with you, I will be submitting a report to HR, I will be working from home for the sake of my mental well-being and till I feel safe enough to come into the office.

Ms Lo’s report states that a colleague suggested that she go home which she did. She went home and worked there for the rest of the day.

Ms Lo’s report describes events on 11 May 2023. She did not attend the meeting scheduled for 10.00 am and worked from home. Mr Galant rang her in the afternoon and asked about the events that had taken place. Ms Lo’s account is that Mr Galant encouraged her to attend a meeting about KPIs. Mr Galant does not give an account of this conversation.

Ms Lo’s evidence included an unfair dismissal report that she provided to Mr Galant on 25 May 2023. That report describes events on 12 May 2023. After sending her report to Mr Galant in the early hours of 12 May 2023 Ms Lo presented for work to attend an afternoon tea that was held for the new CEO, Dr Chris Barnes. Ms Lo states that after meeting Dr Barnes she had much hope for her future at MAF.

Ms Lo stated that while she was speaking with Dr Barnes at the afternoon tea on 12 May 2023 Mr Maistry approached her and asked her to accompany him to his office. Once there Mr Maistry handed Ms Lo a letter which was headed First Warning for Unsatisfactory Performance and Subsequent Insubordination. The letter stated that Ms Lo’s performance was below expectations in comparison to key performance indicators. The letter referred to Ms Lo’s refusal to meet with Mr Maistry and her line managers to discuss her performance. The letter continued:

As a consequence of your failure to attend said meeting, this letter serves as a first warning for your unsatisfactory performance and subsequent insubordination. A follow-up meeting to discuss your unsatisfactory performance is set for Tuesday, 16th May 2023, at 10am at the MAF Australia office. You are required to attend this meeting in person and again have the opportunity to have a support person/(s) attend the meeting with you.

Please note that your failure to attend said meeting will result in further non-compliance and insubordination on your part. In terms of MAF Australia’s conduct policy this constitutes gross misconduct which may result in disciplinary action or dismissal, and/or any further appropriate action at the discretion of management.

After receiving this letter, in the afternoon of the same day, Ms Lo sent an email to Mr Galant referring to the circumstance in which the warning letter was provided. The email included the following:

After meeting Chris today and seeing the type of person that he is, it gave me an inexpressible sense of hope for the future, and that things can change. I am reevaluating my resignation, based on the potential shift in this ministry that can occur. I will be working from home till Chris commences, as I do not feel safe or comfortable in any way around Kelvin, Edgar, or Mike.

As a response to the warning letter handed to me today, I will not be attending the request for me to meet those three individuals on the 16th of May for a follow-up meeting on my performance. If they wish to escalate this issue towards my insubordination, then HR and CEO involvement is required, as well as the reports I have submitted to be read by the individuals that I have requested.

Ms Lo’s evidence is that on 15 May 2023 she decided to attend the 16 May 2023 meeting after all. She was still reluctant to attend but as she had decided to stay at MAF she would grit her teeth and get through the meeting. Mr Maistry said he received an email from Ms Lo on Monday 15 May 2023, in which Ms Lo agreed to attend the meeting on 16 May 2023. A copy of the email is not in evidence. Mr Galant gave evidence that a management meeting occurred on 15 May 2023. His evidence was that at that meeting Ms Lo’s resignation was ‘shared’. Mr Galant does not say who was present at the meeting but he does refer to Mr Maistry being present. Mr Maistry gave evidence that he attended that meeting and that he was made aware for the first time that Ms Lo had resigned to the HR Manager on 12 May 2023.

Ms Lo attended the meeting on 16 May 2023. As to the purpose of the meeting, Mr Galant’s evidence was the meeting was called as there was a concern that Mr Maistry had not had the opportunity to hear Ms Lo’s side of the story and so was unable to determine what went wrong to cause Ms Lo to be leaving the organisation. He stated that it was thought that giving Ms Lo an opportunity to share her perspective would aid management in avoiding similar challenges in the future. I do not accept this evidence. Ms Lo was directed to attend the meeting in the warning letter of 12 May 2023. The purpose of the meeting was clearly stated in the letter as being to discuss Ms Lo’s performance. Mr Maistry’s evidence confirmed that the purpose of the meeting was as stated in the letter – to discuss her unsatisfactory performance and insubordination. Mr Maistry was unaware of any suggestion Ms Lo would resign when he called the meeting. The account of what occurred at the meeting also confirms that the meeting was not to discover why Ms Lo was leaving the organisation.

A full account of the meeting on 16 May 2023 is given in Ms Lo’s evidence. Ms Lo recorded the meeting and provided what is described as a record and transcript. The document does not read as a transcript, rather it reads as a detailed account of the meeting prepared by Ms Lo with assistance from the recording she made. That document states the meeting was a disciplinary meeting. Mr Maistry, Mr Voigt, Mr Galant, Mr Swanton were present along with Ms Lo and three others from her team: Ms Temu, Mr Munro and Mr Samuels. The warning letter of 12 May 2023 was read as a means of identifying the purpose of the meeting. The document identified the meeting as a meeting between Mr Maistry and Ms Lo with the others present as witnesses.

The record describes Mr Maistry presenting an account of Ms Lo’s performance from 3 January 2023 to 10 May 2023 indicating that it was beneath expectations and seeking an explanation. The document records Ms Lo responding that her performance was affected by her negative interactions with line managers, including feeling unsafe in meetings with them, intimidated by their actions, and being micromanaged to meet the targets set in the Fathers’ Day campaign. Mr Maistry replied he was aware there had been many meetings about the team’s performance and the approach being taken to the Fathers’ day campaign but these matters were separate to the performance issues. Mr Maistry asked why Ms Lo had not raised her concerns previously. Ms Lo responded that she had raised them with Mr Galant. Mr Galant stated that recommendations about management behaviour had been made arising from Ms Lo’s earlier reports and that they were being implemented. Ms Lo responded that if the recommendations were in place she would be able to meet the targets. It is clear from the record of the meeting that prior to the meeting Mr Maistry was unaware of the earlier complaints by Ms Lo, that they had been dealt with through an external investigation, and that recommendation for training and development had been made. Mr Voigt was given a chance to comment. This was consistent with the confidentiality around the earlier process. Mr Voigt described his concerns with Ms Lo’s performance and the earlier sometimes heated meetings. He responded to the suggestion that Ms Lo felt unsafe around her supervisors by saying he felt unsafe around Ms Lo. Mr Voigt recounted that he had apologised in the past for the way he had spoken to Ms Lo. Mr Maistry returned to the recommendations of the external consultant and Mr Galant confirmed that those recommendations were yet to be implemented.

The meeting then turned to a general discussion about the priorities of the organisation and the role various parties had played in meeting those priorities. There was some discussion about Ms Lo’s mental health and the impact it may have had on her performance. Ms Temu gave an account of witnessing some of the management behaviour that Ms Lo had complained about. Ms Lo expressed her ongoing commitment to MAF and accepted that her performance had been impaired in the past for various reasons and said she was willing to move forward on the basis that those matters were being addressed. At the conclusion of the meeting Mr Maistry stated that there were quite a few things to get to the bottom of, and that while there were disagreements and that the wrong thing may have been done in the past, the organisation needed to move forward together. He indicated that he would have further discussions with Mr Galant and possibly Mr Voigts and that following those discussions the meeting would be reconvened.

Mr Maistry’s brief evidence about the meeting was that he had prepared a schedule of Ms Lo’s performance for 2023 which he presented, Ms Lo did not provide adequate or sufficient reasons for her performance but instead made claims that she had been unfairly treated. He also stated that Ms Lo claimed she had reasonable grounds for cases of constructive dismissal, grooming and mismanagement by him and her line managers. Mr Maistry also gave evidence that it was clear that Ms Lo was not prepared to follow the directions of her line managers. I do not accept Mr Maistry’s account of the meeting. Even absent Ms Lo’s detailed account, Mr Maistry’s reference to statements about constructive dismissal make no sense in the context of the build up to and stated purpose of the meeting. It also makes no sense in terms of the events which followed, being the termination of employment by accepting Ms Lo’s resignation. Further, Mr Maistry’s assertion that Ms Lo did not address the performance issues but instead made claims of unfair treatment appears to miss the point that Ms Lo’s was explaining that her poor performance was in part due to the actions of her managers.

Mr Galant merely gave evidence that no one at the meeting consented to it being recorded. He did not take issue with the account given by Ms Lo. Mr Voigts gave evidence that he was hurt and confused that despite his earlier apology Ms Lo raised in the meeting concerns about his behaviour. Mr Swanton’s witness statement gives no account of the meeting at all.

There was no mention in the meeting of Ms Lo having resigned.

Following the meeting Ms Lo met with Mr Galant. This meeting took place at the end of the day. At that meeting she told Mr Galant that she wanted to stay at MAF. Ms Lo’s account of the meeting is that Mr Galant raised her performance issues and her relationship with her managers as impediments to her staying. Ms Lo said she could improve her performance and that would improve the relationships. Ms Lo asked Mr Galant if she should resign before she was fired. The discussion turned to the role her managers had played in bringing about her dilemma and Mr Galant said that the recommendations arising from the external investigation would inform the future, but that this would take time.

In the morning of 17 May 2023 Ms Lo was provided with a letter in the following terms.

Acceptance of Resignation

Dear Alyssa,

In response to your written notification of resignation forwarded to management on 12 May 2023, I hereby accept your resignation from your role at MAF Assist Limited (your employer), effective on 15 May 2023, as indicated in said notification.

In terms of clause 17.5 of your employment contract you are required to provide your employer with four weeks’ written notice. I would therefore like to inform you that your final day of paid work is 12 June 2023, being four weeks from 15 May 2023.

In terms of clause 17.6 of your employment contract, your employer may direct you not to attend work during all of the notice period. Accordingly, I would like to inform you that your last day at MAF is therefore today, 17 May 2023.

You are no longer required to attend the office after today and are released from working through your notice period until 12 June 2023.

You will be paid out until 12 June 2023, including any unused annual leave due to you up to that date.

Accordingly, you are kindly requested to hand over all company property in your possession by close of business today. Please coordinate with Deanne to ensure that all company property is duly returned to the office.

If you have any questions regarding the above, please feel free to contact me directly.

I would also like to take this opportunity to thank you for your efforts and contribution during your tenure at MAF Australia.

Yours sincerely

Kelvin Maistry

Interim General Manager

Has the Applicant been dismissed?

MAF contends that Ms Lo’s was not dismissed. Her employment terminated by her resigning in the email to Mr Galant at 3.11 am on 12 May 2023 and the resignation was not forced. It submits that the email indicated a clear intention to resign providing an effective date of resignation, being 29 May 2023.

The first question is whether the email of Friday 12 May 2023 constituted a resignation. On its face the email was not a resignation but an indication of an intention to resign in the future, specifying 15 May 2023 as the date that she would submit a resignation letter. Ms Lo contends that the email was not submitted voluntarily but under pressure. She submitted that she understood that her resignation would only be official by providing a letter. She says she intended to take the weekend to deliberate on whether to resign. She also contends that in another email sent in the afternoon of 12 May 2023 she notified of her intention to stay with MAF. Ms Lo says that at a meeting with Mr Galant on 16 May 2023 she confirmed that she was not resigning.

Section 386(1) of the FW Act provides that the Applicant has been dismissed if:

(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or

(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

A Full Bench of the Commission considered the two limbs of s.386(1) in Bupa Aged Care Australia Pty Ltd v. Tavassoli.[1] After considering in detail the case law associated with expression “terminated on the employer’s initiative” including notions of constructive dismissal and forced resignation,[2] the Full Bench said at [47]:

[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.[3]

MAF’s submissions took me to a number of authorities on the question of resignations and constructive dismissal. A number of those were considered by the Full Bench in BUPA. None of them lead me to depart from an application of the summary in BUPA set out above.

First, it might be said, as MAF does, that on its face Ms Lo’s email appeared to be a resignation. I do not however accept that Ms Lo’s email did constitute a resignation. In the email Ms Lo foreshadowed an intention to resign. The email stated that she would be handing in her official resignation letter on 15 May 2023. This is a clear indication that the email was not intended to be her resignation but rather she would resign by official letter on 15 May 2023. I take this to be an open letter addressed to MAF’s principal officer stating clearly that she resigned and setting out the effective date of such resignation. In contrast to a covering email to a report sent to the HR Manager which requested confidentiality. Further, in the email she foreshadowed her intention to give two weeks’ notice in accordance with her understanding of the requirement in her contract of employment and she considered this meant that her last day would be 29 May 2023. This confirms that her intention was to resign on 15 May 2023 rather than 12 May 2023. Had she intended to resign on 12 May 2023 her two weeks’ notice would have resulted in her last day being 26 May 2023. Another indication that the email did not constitute a resignation was her request that Mr Galant keep the information about her proposed resignation confidential until she had submitted her official resignation letter on 15 May 2023.

Rather than constituting a resignation, the purpose of the email at 3.11 am was to provide Mr Galant, MAF’s HR Manager, further information about the way she had been treated by her managers. The email formed part of ongoing communications with Mr Galant about that treatment. The email annexed a lengthy report on that topic. That report was to be read with the earlier report that had been provided to Mr Galant on 5 April 2023. The 5 April 2023 report had also been a confidential communication and Mr Galant had dealt with it by engaging an external consultant and reaching an agreement with Ms Lo that corrective action would be taken by way of training and policy review. Ms Lo’s further report outlined further ill treatment that she believed needed addressing. The communication with Mr Galant was intended for that purpose. Read in that context, the reference to an intention to resign in the covering letter was Ms Lo indicating to Mr Galant that the treatment was such that she had decided her only course of action was to resign. So much is clear from her statement in the email that the reasoning for her decision to resign was outlined in the two reports.

The circumstances of the afternoon of Friday 12 May 2023 are also relevant. Ms Lo sent another email to Mr Galant. It related to the warning letter she had received during the day from Mr Maistry which also required her to attend a meeting to discuss her performance. This was further treatment relevant to her earlier complaints. The email stated in terms that Ms Lo was re-evaluating her resignation.

Further, Ms Lo did not provide the resignation letter foreshadowed in her 12 May 2023 email on Monday 15 May 2023. She instead sent Mr Maistry an email agreeing to attend the meeting on 16 May 2023. Indicating that she had not only re-evaluated her plan to resign but also whether she would attend the meeting about her performance. The meeting went ahead and following the meeting Ms Lo confirmed to Mr Galant that she would not be resigning.

Secondly, and so far as it is necessary, I take into account the observation in BUPA that there may be a dismissal under s 386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed when the employee was in a state of emotional stress such that the employee could not reasonably be understood to be conveying a real intention to resign. Ms Lo’s emotional state is clear on the face of the email sent at 3.11 am on 12 May 2023. It is confirmed by the contents of the attached report which concluded with an emotional personal statement by Ms Lo summing up her anger at what had taken place and stating that she would no longer tolerate the treatment that she had endured. MAF points to extracts from this part of the report in which Ms Lo stated she would no longer be remaining in her role and that her decision was made following much reflection. MAF contends that this was a clear indication of Ms Lo’s intention to resign. I do not read those extracts in that way. Even if they could be read that way, I find that, read as a whole and in the context of the earlier dealings Ms Lo had with Mr Galant, the email and report demonstrate that Ms Lo was under such emotional stress that she could not reasonably be understood to be conveying a real intention to resign either by the email or in the statements made in the report upon which MAF seeks to rely. Further, consistent with the Full Bench’s observations, in the circumstances it was incumbent on MAF to clarify or confirm with Ms Lo, after a reasonable time, that she genuinely intended to resign. MAF did not do that. Indeed, Mr Galant’s actions were to observe the confidentiality requested in the 3.11 am email until the afternoon of 15 May 2023. The evidence is that Mr Galant did not inform Mr Maistry of the email until then. Mr Galant does not explain why this was so. I infer that Mr Galant took the email on face value, observed the confidential nature of the email and expected that if there was to be a resignation, and some doubt on this question was raised by the Friday afternoon email, it would be made in writing on 15 May 2023.

At the meeting of 16 May 2023 there was no discussion of Ms Lo resigning. After the meeting it was clear in the discussion with Mr Galant that Ms Lo did not believe she had resigned. In that later meeting she asked Mr Galant if he thought she should.

On 17 May 2023 Mr Maistry wrote to Ms Lo accepting her written resignation of 12 May 2023 which was said to be effective 15 May 2023. The letter points out that the contract of employment required 4 weeks’ notice and so MAF would regard the finishing date of 12 June 2023. The letter stated that MAF did not require Ms Lo to work during the notice period and her last day of work would be 17 May 2023. MAF took the view the email of the morning of 12 May 2023 was a resignation and that it was open for it to accept that resignation. For the reasons above that view was mistaken. Ms Lo’s email did no more than express an intention to tender a letter of resignation on 15 May 2023.

In Harvey v. Valentine Hydrotherapy Pools Inc[4] Deputy President Saunders came to a similar conclusion about a communication in a text message from an employee stating they were going to hand in a resignation notice at a future time. The Deputy President there said that the conduct and communications of the employee could not have led a reasonable person to understand that the employee had resigned. He went on to observe:

There is a material difference between saying, on the one hand, “I am resigning” or “I resign” and, on the other hand, “I will hand in my notice”. The former either has immediate effect or is notification of a decision which has been made, and the latter is a statement of intention as to the future.

This reasoning applies here. I find that it was not Ms Lo’s email of 12 May 2023 but MAF’s letter of 17 May 2023 which brought an end to Ms Lo’s employment. Ms Lo did not voluntarily leave her employment on that day. She had not provided a notice of resignation. By that time, she had reconsidered and decided that she would not be taking the step of resigning. The termination of Ms Lo’s employment was at the initiative of MAF.

If I am wrong on that point, I would have found that the dismissal was at the initiative of the employer in the sense that any ostensible resignation was legally ineffective as it was expressed when Ms Lo was in a state of emotional stress or mental confusion such that she could not reasonably be understood to be conveying a real intention to resign.

For these reasons, I find that on 17 May 2023 the Applicant was dismissed by the Respondent within the meaning of s 386(1)(a) of the Act.

I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act.

Was the dismissal harsh, unjust or unreasonable?

Section 387 of the FW Act requires, in considering whether a dismissal was harsh, unjust or unreasonable, the Commission take intoaccount:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

MAF put its case primarily on the basis that the Applicant was not dismissed she resigned. It contended in the alternative, in the event that the Commission concluded the Applicant had been dismissed, there was a valid reason to terminate Ms Lo because she was unable to meet her KPIs and refused to accept lawful directions as to the work performed, failed to meet her KPI’s, and refused to meet with management. MAF submits that Ms Lo believed that she could manage herself, manage the rest of her team and manage the company. It contends that those beliefs were incompatible with MAF’s right to issue lawful and reasonable directions.

Ms Lo’s response was that there was no valid reason for dismissal as any underperformance on her part was not reasonably managed. She also submits that she was unable to meet the KPIs due to the work environment and that others were also underperforming. She submits that she did not refuse to meet with management but was reluctant to meet due to the treatment that she had endured. She says she was always willing to meet once the new CEO started and that in any event after receiving the warning that a refusal to meet would lead to disciplinary action she did attend the meeting.

The Full Bench in Sydney Trains v Gary Hilder[5] described the well established principles applicable to the valid reason consideration in s 387(a) at [26] as follows:

(1) A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.

(2) When the reason for termination is based on the misconduct of the employee the Commission must, if it is in issue in the proceedings, determine whether the conduct occurred and what it involved.

(3) A reason would be valid because the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour).

(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).

(5) Whether an employee’s conduct amounted to misconduct serious enough to give rise to the right to summary dismissal under the terms of the employee’s contract of employment is not relevant to the determination of whether there was a valid reason for dismissal pursuant to s 387(a).

(6) The existence of a valid reason to dismiss is not assessed by reference to a legal right to terminate a contract of employment.

(7) The criterion for a valid reason is not whether serious misconduct as defined in reg 1.07 has occurred, since reg 1.07 has no application to s 387(a).

(8) An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant matter under s 387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.

(9) Matters raised in mitigation of misconduct which has been found to have occurred are not to be brought into account in relation to the specific consideration of valid reason under s 387(a) but rather under s 387(h) as part of the overall consideration of whether the dismissal is harsh, unjust or unreasonable.

On the evidence provided it is not possible to make an assessment of Ms Lo’s performance related conduct nor whether there a valid reason for dismissing her for not meeting her KPIs. There was evidence of a series of meetings commencing in February 2023 to discuss the issue of KPIs, particularly in relation to the Fathers’ Day Campaign. Those meetings were about the concerns the team had about their manager’s expectations, and whether it was possible to meet targets set for the campaign. Mr Swanton gave evidence that he was first instructed to develop KPIs in February 2023. He stated that by 8 May 2023 he had done so and was ready to meet with the team members for their first monthly review. This led to the meeting with Ms Lo on 10 May 2023 that started the events that led ultimately to the dismissal. At that meeting Mr Swanton says he attempted to go through the KPI data with Ms Lo. Ms Lo refused. This led to a request that Ms Lo meet with Mr Swanton and Mr Voigts. Ms Lo refused. This then led to a requirement that there be a meeting with Mr Swanton, Mr Voigts and Mr Maistry. Ms Lo again refused. Ms Lo then prepared her report and sent the email at 3.11 am on 12 May 2023. A warning letter was issued on 12 May 2023. That letter referred to performance issues and the refusal to meet about them. Arising from that letter a meeting was held on 16 May 2023 in which performance issues were discussed. Mr Maistry’s evidence was that he prepared information on Ms Lo’s performance for that meeting and presented it to the meeting. Ms Lo’s account of the meeting also records that the meeting began with Mr Maistry giving an account of her performance. The meeting then took a different course and the performance of the team, and the conduct of the managers became the focus of discussion.

There was evidence about concerns about performance. There was evidence about the attitude to the team that the performance requirements were unreasonable. There was no direct evidence in the proceedings before me, however, as to what Ms Lo’s KPIs were and how Ms Lo failed to meet them. Nor was there evidence about how Ms Lo’s performance compared to others in her team. Neither Mr Swanton’s data nor Mr Maistry’s information on performance were provided as evidence. Further, Mr Galant gave evidence that MAF did not intend to dismiss Ms Lo over her performance, it simply wanted to correct it.

Consequently, I am not satisfied there was a valid reason for terminating Ms Lo’s employment on the basis of performance. As I do not know what her actual performance was, I do not know how it can be said she underperformed. In the absence of evidence about Ms Lo’s underperformance, either against the targets set for her or relative to other team members, I cannot be satisfied that her performance provided a valid reason justifying dismissal.

On the second issue, Ms Lo’s failure to meet with managers, I find that Ms Lo did refuse to meet with her managers. She did so because she was not comfortable with meeting them due to her concerns about their conduct. She did however agree to a meeting if the new CEO was present. After receiving the warning letter on 12 May 2023, which required that she attend a meeting on 16 May 2023 or disciplinary action would be taken, Ms Lo attended the meeting. I do not consider the conduct of refusing to meet in the previous week justified dismissal. Indeed, nor did MAF. The warning letter was a first warning for performance and insubordination. MAF took the view that further disciplinary action, including dismissal may be justified if there was a further refusal to attend. So much is clear on the face of the warning letter. Consequently, I find that there was no valid reason to dismiss based on the refusal to attend meetings.

The absence of a valid reason in this case weighs heavily in favour of a finding that dismissal was harsh, unjust or unreasonable.

Was the Applicant notified of the valid reason?

Ms Lo was given a warning about her performance and her failure to attend a meeting about her performance. The letter states that a failure to attend another meeting may result in disciplinary action including dismissal. I am not satisfied that nonattendance at the meeting constituted a valid reason for dismissal. Ms Lo attended the further meeting. I have also found no valid reason based on performance. Consequently, the letter does not constitute a warning of a valid reason for termination and is not relevant to the present circumstances.[6]

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

Ms Lo was given an opportunity to respond to MAF’s concerns about her performance and failure to attend a meeting. However, as I have not found that those matters did not constitute a valid reason for dismissal, this factor is not relevant.[7]

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

There were discussions relating to Ms Lo’s performance and her refusal to attend the meeting on 12 May 2023. These occurred during the meeting of 16 May 2023. Mr Galant’s evidence was that it was not MAF’s intention to terminate Ms Lo’s employment. Rather MAF was seeking to correct the Applicant’s performance.

I note, however, that so far as those discussions can be said to relate to dismissal, Ms Lo did have members of her team present to assist and she had requested their attendance. Ms Temu in particular provided support for Ms Lo.

As there was no meeting about dismissal there was no unreasonable refusal to allow the Applicant to have a support person present to assist at any discussions relating to his dismissal. Accordingly, s 387(d) is a neutral factor in relation to the question of whether the dismissal was harsh, unjust or unreasonable.

Was the Applicant warned about unsatisfactory performance before the dismissal?

In The Heran Building Group Pty Ltd v Anneveldt[2013] FWCFB 4744, the Full Bench cited with approval (at [38]-[39]) the decision of the Australian Industrial Relations Commission in Fastidia Pty Ltd v Goodwin (2000) 102 IR 131 at [43]:

[38] In Fastidia Pty Ltd v Goodwin, a Full Bench of the AIRC said of s.170CG(3)(d) of the pre-reform WR Act:
“[43] In the context of s.170CG(3)(d) we think that a warning must:

- identify the relevant aspect of the employee’s performance which is of concern to the employer; and

make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.

[44] In relation to the latter requirement, a mere exhortation for the employee to improve his or her performance would not be sufficient. We also note that we accept that these criterion are to be applied in a practical and commonsense way taking into account the employment context.”

[39] We respectfully agree with the Full Bench and conclude that such an approach remains relevant for present purposes.

Ms Lo was issued the warning letter and that letter referred to her performance. The letter required her to attend a meeting on 16 May 2023. There is nothing in Ms Lo’s account of the meeting to suggest MAF made it clear that Ms Lo’s employment was at risk unless the performance issues discussed were addressed. Indeed, the meeting ended in an inconclusive way, with Mr Maistry stating that he would have further discussions before reconvening. This of course did not occur as MAF took steps to terminate Ms Lo’s employment the following day. I also note, again, Mr Galant’s stated that there was no intention by MAF to do anything more than have Ms Lo improve her performance. I find that the MAF did not make it clear that Ms Lo’s employment was at risk unless her performance improved.

This factor weighs in favour of a finding that the dismissal was harsh, unjust or unreasonable.

To what degree would the size of the Respondent’s enterprise/ absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

MAF employed 20 employees at the time of the dismissal. It had dedicated internal human resources management specialists in Mr Galant and Ms Welcome.

In the period leading up to the dismissal Ms Lo was communicating separately with the HR team by providing the confidential communications in April and May which included the lengthy reports outlining her concerns about the workplace. It appears those communications were kept confidential until 15 May 2023 when Mr Galant informed Mr Maistry of the 3.11 am email of 12 May 2023 in which Ms Lo indicated her intention to resign. It is possible that the involvement of Mr Galant, in particular, had an adverse impact on the treatment of Ms Lo by his breach of the confidentiality that he had to that point observed, but I do not have sufficient evidence as to the nature of that conversation or the impact Mr Galant or Ms Welcome had on the procedures that were then followed leading to Ms Lo’s dismissal. Consequently, I regard this consideration as neutral in the assessment of whether the dismissal was harsh, unjust or unreasonable.

What other matters are relevant?

Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. The submissions filed from both parties made reference to a number of other matters relating to Ms Lo’s employment. For Ms Lo’s part, her submissions raised what she described as the toxic workplace culture in the months leading to the termination. The submissions and other evidence traversed the management style of her line managers, the direction the business was taking and Ms Lo’s attempts to influence that direction. Submissions were made about Ms Lo’s position description, the structure of the team and the support that Ms Lo had from colleagues for the stance she was taking. For MAF’s part, submissions were made about the reasonableness of management’s response to Ms Lo’s representations, the terms of her contract of employment, and her tendencies to avoid doing as she was asked and impose her views on management rather than follow reasonable directions. It is readily apparent that there was ongoing disquiet in the workplace. Attempts to resolve these issues were being made by all involved. The training that Mr Galant agreed to implement following Ms Lo’s first confidential report in April 2023 is an example of this. At the conclusion of the meeting on 16 May 2023 Mr Maistry indicated that further discussions were required to address these matters. Ms Lo was hopeful the appointment of Dr Barnes as CEO would assist in resolving the concerns she raised.

While these matters assist in understanding the circumstances of Ms Lo’s dismissal, I do not find them relevant to the question of unfairness.

Was the dismissal harsh, unjust or unreasonable?

Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal was harsh, unjust and unreasonable.

For the reasons already stated I am not satisfied that there was a valid reason for the termination. Put briefly, but not intending to detract from the reasons above, I did not have sufficient material to assess the extent of the under performance raised by MAF. Further, both the performance issues and the refusal to meet with line managers need to be viewed in light of the ongoing workplace issues that had been raised by Ms Lo. Those matters formed no basis for dismissal. Further, Ms Lo was not warned that those performance issues would lead to dismissal and the evidence was that at the time of the dismissal MAF did not intend to dismiss Ms Lo over her performance. Similarly, there appeared to be no intention of dismissing Ms Lo for not attending the meeting about her performance. A warning was felt sufficient. Indeed, Ms Lo did ultimately attend a meeting dealing with performance once warned that a failure to do so would lead to disciplinary action.

I am therefore satisfied that Ms Lo was unfairly dismissed within the meaning of section 385 of the FW Act.

Remedy

Having found Ms Lo was protected from unfair dismissal, that she was dismissed and that she was unfairly dismissed, it is necessary to consider what, if any, remedy should be granted. In considering an appropriate remedy in a case of unfair dismissal, regard must be had to the legislative object set out in s.381 of the FW Act. This includes an emphasis on the remedy of reinstatement and on ensuring that a “fair go all round” is accorded to both the employer and employee concerned.

Under section 390(3) of the FW Act, the Commission must not order the payment of compensation to the Applicant unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Ms Lo did not seek reinstatement. Whilst, at the time she was dismissed, she was willing to remain with MAF in the hope that the measures agreed with Mr Galant in April would be put in place and Dr Barnes commencing in the role of CEO would change the workplace for the better, she has moved on and commenced new employment. For its part MAF contends the performance issues were still to be dealt with and that had Ms Lo remained may well have led to her termination. MAF’s view is also that the necessary trust and confidence in the employment relationship is no longer present. Taking into account the views of the parties I am satisfied for the purposes of s 390(3)(a) that reinstatement is inappropriate.

Having found that reinstatement is inappropriate, section 390(3)(b) applies. I may only issue an order for compensation if it is appropriate in all the circumstances of the case. Orders for compensation are to compensate an unfairly dismissed employee for losses reasonably attributable to the unfair dismissal. It does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench in Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[8] “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”[9].

Ms Lo’s has suffered losses associated with the dismissal. She has accepted alternate employment on lower pay. I consider it appropriate to make an order for compensation in the circumstances of this case. In determining the amount of compensation, I must take into account the matters identified in s 392(2).

There is no basis to conclude that an order for the payment of compensation would affect the viability of MAF’s enterprise. This factor does not militate against such an order. Ms Lo’s length of service was 18 months. Her employment with MAF came early in her career. It can be expected that the experience she was gaining was valuable to acquiring workplace skills. This was valuable to an employee in Ms Lo’s situation. Ms Lo found another job soon after she was dismissed but on less remuneration. The difference in the remuneration Ms Lo would have received, or would have been likely to receive, if she had not been dismissed support an order for the payment of compensation.

The period over which Ms Lo would have continued to work for MAF but for her dismissal involves some speculation. Ms Lo is young and is starting out on her career. At the time of dismissal, she had experienced difficulties with her line managers. MAF was in the process of addressing those matters. MAF had committed to training to improve the workplace culture. Ms Lo also anticipated that the change in senior management through the appointment of a new CEO would improve things. I am inclined to agree. I do not accept MAF’s submissions that had Ms Lo’s employment not been terminated when it was it was inevitable that she would have either been dismissed or resigned soon after. The evidence suggests the factors causing strain on the employment relationship were being addressed. I am of the view that Ms Lo would have continued to work at MAF for at least a further 12 months.

Ms Lo made efforts to mitigate the loss she has suffered because of her dismissal. She found another job on less pay. Those efforts and the lower remuneration earned weigh in favour of making a compensation order.

I also note that Ms Lo was paid 4 weeks’ pay in lieu of notice and commenced new employment immediately after the notice period expired. That amount will need to be deducted from any final compensation figure.

Having regard to the matters in s 392(2) I consider compensation based on the loss suffered over a 12 month period is appropriate less the 4 weeks’ notice paid.

Compensation – how is the amount to be calculated?

The well-established approach[10] to the assessment of compensation under s.392 of the FW Act is the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg).[11]

The approach in Sprigg is to first estimate the remuneration the Applicant would have received, or have been likely to have received, if the employer had not terminated the employment. Then deduct monies earned since termination. Discount the remaining amount for contingencies. And calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.

I have estimated the remuneration Ms Lo would have received or would have been likely to have received if MAF had not terminated the employment, to be $61,016.04 being her annual salary, less the 4 weeks she was paid in lieu of notice which was $4,693.54. The loss of earnings from MAF was $56,322.50.

The amount of remuneration the Applicant will likely earn for the 12 month period from the date of the dismissal can be estimated as being 48 weeks of her salary in the new position. The salary in her new position is $49,440 and 48 weeks’ salary is $45,636.93. I deduct the $45,636.93 from $56,322.50, giving a figure for lost remuneration of $10,695.57.

I have considered the impact of taxation but have elected to settle a gross amount of $10,695.57 and leave taxation to be deducted as appropriate.

Having applied the formula in Sprigg, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case”[12]. I do consider this amount to be appropriate having regard to the circumstances of the case.

If I am satisfied that misconduct of Ms Lo contributed to the employer’s decision to dismiss, I am obliged by section 392(3) of the FW Act to reduce the amount I would otherwise order by an appropriate amount. I am not satisfied that Ms Lo’s conduct was such to justify a reduction in the amount of compensation.

Section 392(5) of the FW Act applies here such that the amount of compensation ordered by the Commission must not exceed the total remuneration paid to Ms Lo during the 26 weeks immediately before the dismissal. Based on Ms Lo’s salary of $61,016.04 the order I will make will not exceed 26 weeks remuneration calculated using this figure.

In light of the above, I will make an order that the Respondent pay $10,695.57 less taxation as required by law to the Applicant in lieu of reinstatement within 21 days of the date of this decision.

DEPUTY PRESIDENT

Appearances:

Applicant: Ms Alyssa Lo

Respondent: Mr Ian Latham (Barrister)

Instructed by Mr Lyndon Burke

Mr Kuren Galant, Human Resources Manager

Hearing details:

Sydney
9 August 2023

[1] [2017] FWCFB 3941.

[2] At [27] ff

[3] Ibid at [47].

[4] [2021] FWC 3373.

[5] [2020] FWCFB 1373

[6] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].

[7] id

[8] [2014] FWCFB 7198

[9] At [9].

[10] Double N Equipment Hire P/L t/a AI Distributions [2016] FWCFB 7206 at [16]

[11] (1998) 88 IR 21.

[12] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [17].

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