Candice Dias v Angle Auto Finance Pty Ltd - [2025] FWC 47

[2025] FWC 47

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Candice Dias
v

Angle Auto Finance Pty Ltd

(U2024/2463)

COMMISSIONER MATHESON

SYDNEY, 10 JANUARY 2025

Application for an unfair dismissal remedy – performance improvement plans – valid reason for the Applicant’s dismissal based on her conduct, failure to comply with multiple lawful and reasonable directions – application dismissed.

On 5 March 2024 Candice Dias (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Angle Auto Finance Pty Ltd (Respondent). The Applicant seeks reinstatement and ‘orders for continuity and lost remuneration’.[1]

When can the Commission order a remedy for unfair dismissal?

Section 390 of the FW Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the Applicant has been unfairly dismissed.

Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.

When is a person protected from unfair dismissal?

Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

When has a person been 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; and

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

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

Background

The materials filed by both parties in this matter are extensive and canvas many issues, a significant number of which are in contest. Notwithstanding this, the following chronology of events surrounding the dismissal, while not an exhaustive account of all relevant events, does not appear to be in contest:

The Applicant commenced employment with the Respondent on 29 November 2021.[2]
The Applicant was initially employed as a Proof of Income Officer before transferring to the role of Settlements Officer.[3]
In October 2022 Shayan Ahmed (Mr Ahmed) joined the Applicant’s team as her team leader.
The Applicant was provided with an ‘off-track’ rating during her mid-year performance review in December 2022, which the Applicant contested.
On 26 April 2023 the Applicant was sent a meeting request to attend a meeting to discuss her performance.
On 27 April 2023 the Applicant requested four weeks’ leave for personal reasons which was granted.
The Applicant requested an extension to her leave which was granted, and she returned from leave on 8 June 2023.
On 26 July 2023 the Applicant was placed on a performance improvement plan (First PIP) which covered a period of four weeks, initially due to end on 23 August 2023.
On 27 July 2023 the Applicant challenged the First PIP and requested that it be withdrawn.
Between 16 August 2023 and 31 August 2023, the Applicant took leave, providing two medical certificates stating that the Applicant would, in the doctor’s opinion, ‘be unfit for normal work’.
The period of the First PIP was extended.
On 1 September 2023 the Applicant returned to work and again requested the withdrawal of the First PIP.
On 8 September 2023 Jonathon Kwok (Mr Kwok) was appointed as Applicant’s team leader.
The First PIP was extended until 12 October 2023.
On 24 October 2023 the Applicant was requested to attend a meeting the following day, 25 October 2023, to discuss the outcome of the First PIP and next steps.
The Applicant requested that the meeting on 25 October 2023 be rescheduled until the following day to accommodate the attendance of her support person, and the request was agreed to.
On 25 October 2023 the Applicant took personal leave, providing medical certificates stating that the Applicant was ‘suffering from a medical condition and states that she is/was unwell and unable to attend work’[4] and the meeting was cancelled.
The Applicant returned to work on 8 November 2023.
On 8 November 2023 the Applicant was requested to attend a meeting to discuss the outcome of the First PIP.
The meeting was rescheduled to 9 November 2023 to accommodate the availability of the Applicant’s support person.
On 9 November 2023 the Applicant participated in an online meeting with Mr Kwok and a member of the Respondent’s People and Culture team, Allannah Reid (Ms Reid).
On 10 November 2023 the Applicant challenged the outcome of the First PIP.
On 13 November 2023 the Respondent provided the Applicant with a written warning (November Warning Letter) which stated that the Applicant had not achieved the minimum requirements for the critical components of the First PIP, specifically the productivity and quality aspects of the First PIP.
A second performance improvement plan (Second PIP) commenced on 14 November 2023 and, because the Applicant’s team leader commenced a period of parental leave, the Respondent’s Senior Operations Manager, Catherine Jorquera-Ward (Ms Jorquera-Ward), took on the task of engaging with the Applicant in relation to the Second PIP.
On 29 November 2023, Ms Jorquera-Ward raised a concern with the Applicant that contracts had been completed outside of her working hours and further emails were sent to the Applicant about this, requesting a response.
On 5 December 2023 Ms Jorquera-Ward requested that the Applicant attend a meeting on 6 December 2023 to discuss the allegations.
The Applicant declined the request to meet on 6 December 2023 and requested that the meeting occur on 13 December 2023.
The meeting was ultimately rescheduled to 8 December 2023.
On 8 December 2023 the Applicant went on personal leave and provided a medical certificate until 14 December 2023. At this time the Applicant had planned leave from 15 December 2023 to 8 January 2024 which commenced immediately following the personal leave period.
The meeting on 8 December 2023 was cancelled.
On 3 January 2024 the Applicant requested that her leave be extended until 2 February 2023 and the Respondent agreed to extend the leave until 15 January 2024.
The Applicant returned to work on 15 January 2024.
On 17 January 2024 the Applicant was requested to attend a meeting on 18 January 2024 however the Applicant declined the meeting request, indicating that her support person would not be available until the following week.
Ms Reid responded on 18 January 2024 indicating that delaying the conversation was not preferable to the Respondent and advising that an allegation letter would be sent via email.
On 18 January 2024 Ms Jorquera-Ward sent an allegation letter (Allegation Letter) to the Applicant via email setting out concerns regarding performance and working outside of rostered hours and which sought a response by 23 January 2024.
The Applicant responded on 22 January 2024 and raised several of her own concerns.
On 29 January 2024 the Applicant raised concerns through the Respondent’s internal whistleblowing platform and on 1 February 2024 the Respondent’s Chief Risk Officer responded.
On 5 February 2024 Ms Jorquera-Ward sent the Applicant an invitation to attend a meeting on 6 February 2024 to discuss the outcome of the Allegation Letter and Second PIP.
The Applicant declined the invitation for the meeting on 6 February 2024, noting her support person was not available at that time, and the meeting was moved to 7 February 2024.
On the morning of 7 February 2024, the Applicant advised her team leader, Mr Kwok, that she would not be attending work due to illness.
Following this, on 7 February 2024, an email was sent to the Applicant attaching a ‘show cause’ letter (Show Cause Letter) and requesting a response by 5pm the following day, 8 February 2024.
A meeting with the Applicant was scheduled for 9 February 2024.
The Applicant provided a medical certificate covering the period between 7 and 9 February 2024 and commenced a period of leave.
The Respondent sent the Applicant an email confirming that a response to the Show Cause Letter was still required by 8 February 2024 and that the outcome meeting would proceed on 9 February 2024.
The Applicant did not join the meeting on 9 February 2024 and an email was sent to the Applicant stating that the Respondent would be in touch on 12 February 2024 with next steps.
On 12 February 2024 the Applicant contacted her team leader, Mr Kwok, to let him know she would not be attending work and sent another medical certificate covering the period from 12 to 16 February 2024.
The Applicant was requested to attend a meeting on 13 February 2024.
The Applicant did not attend that meeting.
The Applicant was dismissed from her employment on 14 February 2024 via email and was paid 4 weeks’ pay in lieu of notice.

The hearing and submissions

There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.

After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (s.399 of the FW Act).

The Applicant filed submissions in the Commission on 7 May 2024. The Respondent filed submissions in the Commission on 21 May 2024. Submissions in reply were filed by the Applicant on 4 June 2024.

As will become apparent below, the materials filed in this matter are voluminous and the hearing took place across multiple days between 17 and 21 June 2024.

Given the volume of evidence that had been heard across this period, I explored with the parties the option of making their closing submissions in written form with the benefit of the transcript and both parties consented to this proposal. The Applicant filed closing submissions on 5 July 2024, the Respondent filed closing submissions on 12 July 2024 and the Applicant filed closing submissions in reply on 19 July 2024.

Permission to appear

The Respondent sought to be represented before the Commission by a lawyer.

Relevantly, section 596(1) of the FW Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission.

Section 596(2) provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with s.596 of the FW Act.[5] The decision to grant permission is a two-step process. First it must be determined if one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.[6]

On the question of representation the Respondent relied on the ground in s.596(2)(a) and submitted that there is complexity in the matter in that there is a significant factual dispute between the parties relating to events over an extended period of time, with the evidence filed by the Applicant suggesting that she has not agreed with the performance management process or the information relied upon by the Respondent since December 2022.[7]

The Respondent also submitted that there was a significant amount of material before the Commission that relates to the factual dispute and identifying what evidence is relevant and what it means was not necessarily clear.[8]

The Respondent submitted that to assist the Commission to assess the available information and make factual findings, the evidence would need to be assessed and witnesses would need to be cross examined and this could be more efficiently dealt with by having a legally trained representative who could:

(a)identify the relevant factual evidence, and present it in a logical and ordered manner; and
(b)set out relevant facts and law to assist the Commission in making its decision; and
(c)ensure the conduct of the hearing is confined to matters relevant to the issue.[9]

The Respondent submitted that legally qualified representatives have a duty to the Commission to assist in the proper conduct of contested proceedings and to advance the administration of justice in the matter and the proper discharge of this duty does not create an unfairness but assisted in the efficient conduct of the matter.[10]

The Respondent also relied on the ground in s.596(2)(b) which it submitted asks the Commission to consider whether a party can represent themselves ‘effectively’ if they cannot do so ‘in a manner that creates a ‘striking impression’, or which has an ‘impressive’ effect, or which is ‘powerful in effect’.[11] In this regard, the Respondent submitted that it did not have employees with experience in advocacy before the Commission or preparing for a contested hearing and the absence of such experience weighed against the Respondent being able to effectively represent itself in a manner which creates a ‘striking impression’ or has an ‘impressive effect’.[12]

The Applicant opposed the Respondent being granted permission to be represented by a lawyer and submitted the Respondent’s legal representative had tried to ‘deceive her regarding the status of legal representation’. The Applicant also cited the following ‘cases’:

Kenny v Business Council of Australia [2015] FCAFC 75 which the Applicant said supported the proposition that if the matter is not sufficiently complex, it may be unfair to allow one party legal representation while the other is self-represented;
Yorke v Lucas [2015] FWCFB 6595 which the Applicant said supported the proposition that the ability of a party to represent themselves effectively is a crucial consideration;
Cowan v Fairfax Media Publications Pty Ltd [2015] FWC 1399 stating ‘despite the respondent’s legal representation during conciliation, no settlement was reached’ and this ‘indicates that legal representation did not significantly contribute to the resolution of process and is not necessary for the determination hearing’;
Gibbons v Newcastle City Council [2016] FWCFB 3638 which the Applicant said supported the proposition that the Respondent’s size and internal resources create an imbalance in representation, undermining fairness in the proceedings.

The Applicant also submitted that:

given the Respondent’s extensive internal resources including a human resources team, workplace grievance team and in house legal counsel, including various specialised teams, external legal representation was not justified;
if one party is capable of self-representation, it is unfair to allow the other party to have external legal representation;
while contested facts existed, this alone did not warrant external legal representation for the Respondent and contested facts are common in unfair dismissal cases and can be effectively addressed through careful questioning and examination without external legal representation;
allowing legal representation for the Respondent would create an unfair advantage and would go against the principles of fairness and equality in the FW Act.

In response, the Respondent denied that its representative had been deceitful and, in response to each of the cases cited by the Applicant above, noted that the Applicant had been asked to provide copies or links to the cases but had not done so and submitted:

in relation to Kenny v Business Council of Australia [2015] FCAFC 75 it had been unable to find a case of that name and citation, with the citation being for a different case, Luck v Chief Executive Officer of Centrelink, which was a case dealing with an application for a stay or adjournment of appeal proceedings, concerning applications made under the Freedom of Information Act;
in relation to Yorke v Lucas [2015] FWCFB 6592, there did not appear to be a decision of the Full Bench of the Commission with that name or citation and while there was a High Court case with that name, it dealt with accessorial liability under the Trade Practices Act;
in relation to Cowan v Fairfax Media Publications Pty Ltd [2015] FWC 1399, the case could not be located;
in relation to Gibbons v Newcastle City Council [2016] FWCFB 3638 there did not appear to be a decision of the Full Bench of the Commission with that name or citation.

The Respondent further submitted that:

the issue of complexity relates not to unfairness but rather to whether or not the representation will enable the matter to be dealt with more efficiently;
the Applicant’s assessment of the sufficiency of the Respondent’s employees to run the matter is an irrelevant consideration;
involvement or not of legal representatives in conciliation is not a relevant factor for consideration when determining an application for permission to appear under s.596(2) of the FW Act;
it did not rely on s.596(2)(c).

It is apparent that the matter is not merely a simple factual context. Complexity arises in that there is a significant amount of material before the Commission, the factual matrix is highly contested and, having regard to the presentation of the material, I accepted the Respondent’s submission that identifying what evidence is relevant and what it means was not necessarily clear. Further, the matter involved multiple interlocutory proceedings, including an application for an order that the Respondent produce a substantial volume of documents that needed to be determined within close proximity to the hearing. There was also a need to deal with that matter efficiently in those circumstances.

I was persuaded that having a legally trained representative with duties to the Commission would be of assistance in identifying the relevant factual evidence and presenting it in a logical and ordered manner and would therefore enable the matter to be be dealt with more efficiently, taking into account the complexity of the matter. As such, I granted permission for the Respondent to be represented by a lawyer pursuant to s.596(2)(a) of the FW Act. As such, at the hearing the Applicant was self-represented and the Respondent was represented by a lawyer, Ms Shanahan.

I further observe that I was also unable to find the cases that the Applicant had cited in support of her submissions, being:

Kenny v Business Council of Australia [2015] FCAFC 75;
Yorke v Lucas [2015] FWCFB 6595;
Cowan v Fairfax Media Publications Pty Ltd [2015] FWC 1399;
Gibbons v Newcastle City Council [2016] FWCFB 3638.

Despite presenting as actual cases from the Commission, Full Bench of the Commission and a Full Court of the Federal Court of Australia it is apparent that these are not cases related to the principles the Applicant advanced in opposition to the granting of legal representation or are not real cases. As will become apparent further in this decision, the Applicant has also advanced other cases that do not appear to be real in support of her substantive application. While it may not have been the intention of the Applicant to include references to incorrect or false case law, it seems likely that the source from which she has obtained this information, whether through artificial intelligence or otherwise, has provided or generated false information which she has sought to rely on. While we live in an information age and parties may seek to rely on sources of information extracted from an online and/or artificial intelligence enabled environment, use of information that is not from a credible and/or reliable source creates a risk that the information from such sources may be wrong or misleading and parties before the Commission should exercise caution in this regard.

Witnesses

The Applicant gave evidence on her own behalf.

The following witnesses gave evidence on behalf of the Respondent:

Allannah Reid, Senior P&C Business Partner for the Respondent.
Catherine Jorquera-Ward, Senior Operations Manager for the Respondent;
Rachael Wade, Head of Retail Operations for the Respondent (Ms Wade).

Has the Applicant been dismissed?

A threshold issue to determine is whether the Applicant has been dismissed from her employment.

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.

Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

There was no dispute, and I find that the Applicant’s employment with the Respondent was terminated at the initiative of the Respondent.

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

Initial matters

Under section 396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy

Was the application made within the period required?

Section 394(2) requires an application to be made within 21 days after the dismissal took effect.

It is not disputed, and I find that the Applicant was dismissed from her employment on 14 February 2024[13] and made the application on 5 March 2024. I am therefore satisfied that the application was made within the period required in subsection 394(2).

Was the Applicant protected from unfair dismissal at the time of dismissal?

I have set out above in paragraph [4] when a person is protected from unfair dismissal.

Minimum employment period

It was not in dispute, and I find that the Respondent is not a small business employer, having 15 or more employees at the relevant time.

It was not in dispute, and I find that the Applicant was an employee, who commenced her employment with the Respondent on 29 November 2021 and was dismissed on 14 February 2024, a period more than 6 months.

I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.

Applicant’s annual rate of earnings and modern award coverage

The Respondent has identified that the Applicant’s wage or salary at the time of the dismissal was $80,078.48 (inclusive of superannuation).[14] A letter dated 4 September 2023 indicates that the Applicant was paid a total remuneration package of $84,079 plus an increase of $379, including 11 percent superannuation and excluding a 5 percent short term incentive payment opportunity.

I find that, at the time of dismissal, the sum of the Applicant’s annual rate of earnings together with such other amounts worked out in accordance with regulation 3.05 of the Fair Work Regulations 2009, was less than the high income threshold, which, for a dismissal taking effect on or after 1 July 2023 and before 30 June 2024, is $167,500.

Further, it was not in dispute and I find that, at the time of dismissal, the Applicant was covered by a modern award, being the Banking, Finance and Insurance Award 2020.[15]

I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

Section 388 of the FW Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

As mentioned above, I find that the Respondent was not a small business employer within the meaning of s.23 of the FW Act at the relevant time, having more than 14 employees (including casual employees employed on a regular and systematic basis).

I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the FW Act.

Was the dismissal a case of genuine redundancy?

Under s.389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:

(a) the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

It was not in dispute, and I find that the Applicant’s dismissal was not due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.

I am therefore satisfied that the dismissal was not a case of genuine redundancy.

Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.

Was the dismissal harsh, unjust or unreasonable?

Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(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.

I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[16]

I set out my consideration of each criterion below. Before arriving at a finding, I have summarised the context in which the dismissal took place, based on the evidence before the Commission.

The Respondent’s systems

The Respondent utilises the following systems:

‘Verint’ a workforce management tool[17] implemented in early 2023 in which employees are required to record their start time, the work they do, and the time they finish;[18]
‘FIS’, a production system used to assess and confirm that data manually entered by employees in Verint is accurate;[19]
‘Workday’ a human resources information system that keeps a record of timesheets that the Respondent says are reconciled through Yellow Canary on a quarterly basis to ensure no underpayments occur.[20]

The Applicant’s role

The Applicant was a Settlements Officer at the time of her dismissal. During cross examination the Applicant indicated:

she was a member of the Novated Settlements Team[21] that did loan applications;[22]
her role included verifying and confirming client identification documents,[23] settling transaction amounts[24] and monitoring for the risk of fraud in the documents she was told to look at;[25]
her role included ensuring settlement assessment was completed according to standard operating procedures (SOPs);[26]
she was given contracts each day that she had to complete on that day;[27]
it was compulsory to do training for 12 -13 hours every year to maintain accreditation.[28]

Ms Jorquera-Ward’s evidence was that as a Settlements Officer, the Applicant was responsible for ensuring accurate documentation was received in line with information provided in the Respondent’s system to comply with process requirements.[29]

Measurement of performance of a Settlements Officer

Ms Jorquera-Ward’s evidence was that the performance of a Settlements Officer is measured by achieving set goals for productivity, quality and service levels and ensuring behaviours are aligned to the Respondent’s culture principles.[30]

In relation to the productivity and quality goals, Ms Jorquera-Ward’s evidence was that:

productivity relates to the number of tasks completed and the time taken to complete them;
an average time is established for each task and this is worked out by taking the average of the number of hours and minutes taken by each team member to complete a task;
if a team member is performing the task in the average time, they are considered to be meeting the effective mark;
quality relates to the number of errors made in processing and completing a task.[31]

Ms Jorquera-Ward gave evidence about how the Respondent’s systems are used to measure productivity and said that performance is measured by reviewing information contained in the Respondent’s system ‘Verint’.[32] Time spent by an employee ‘in production’ is counted as productive time and in this regard Ms Jorquera-Ward’s evidence was, by way of summary:

when an employee logs into Verint they need to select what task they are doing;
there are two task categories in Verint ‘Production’ and ‘Production Overtime’ that count towards productivity;
tasks ‘in production’ have timings attached to them and an employee can only select these tasks when they are in production;
other categories such as meetings and coaching are not taken into account in calculating productivity;
if, for example, an employee worked eight hours with four hours in meetings and four hours in production, productivity would only be based on the hours that the employee was available to do production work. [33]

When there were no contracts coming in (e.g. because it was quiet) employees were required to wait ‘in production’.[34]

During cross-examination the Applicant asked a question relating to the number of contracts that employees were required to produce (per day) between 1 July 2022 and 30 June 2023. Ms Jorquera Ward’s evidence was that there was not a standard number[35] and that there was a percentage target based on how much time was worked and how many tasks were completed,[36] with different timings assigned for different types of tasks in this calculation.[37] Ms Jorquera-Ward also appeared to indicate that by June 2023 the expected productivity target was 90 percent.[38]

The Respondent’s incentive program

The Respondent indicated it follows a ‘pay for performance’ philosophy and has an incentive program run in accordance with incentive guidelines that are published annually.[39] The Respondent submitted that:

·   incentives are not guaranteed;
·   there is a review process which considers whether a remuneration increase and short term incentive payment should be made to an individual;[40] and
·   as a part of this program, performance is measured relative to peers.[41]

The Respondent’s performance management process

The Respondent has a performance management process called ‘Uplifting Performance’ (Uplifting Performance Process).[42] The Uplifting Performance Process states that it ‘aims to support the identification of performance gaps, consideration of steps required to address these gaps, preparation and other tools and guidance for conversations and documentation’. It sets out several steps which include, by way of summary:

‘Step 1: Coaching’ which:
ostates that it is important to meet with the employee in a one-on-one setting to discuss the areas requiring improvement;
ooutlines what an informal coaching conversation could look like;
oindicates that if the performance issue may benefit from a more structured approach the leader may wish to implement a coaching plan;
ostates that during this step the leader should monitor the employee’s performance, acknowledge improvements and discuss how improvements can be sustained;
osets out some examples where a leader might consider coaching appropriate;
ostates that conversations and actions should be documented and, if performance hasn’t improved, then a formal improvement plan will need to be implemented;
‘Step 2: Plan for the meeting’ which involves communicating the performance issue, exploring why the underperformance has occurred and developing a plan to improve performance;
‘Step 3: Document your conversation’ which:
ostates that it is important to take clear file notes of the conversation;
ostates that if a coaching plan is being used it should be saved;
oindicates that progress should be discussed again in the next one on one conversation; and
orefers to support available from the Employee Assistance Program;
‘Step 4: Considerations for Performance Improvement Plan (PIP)’ which states that if performance hasn’t improved an improvement plan (PIP) can be implemented and that the following needs to be considered before doing do:
o‘Has feedback and coaching been provided, and all feedback documented?’
o‘Are you clear on the ongoing performance issues?’
o‘Have you clearly identified which issues are performance related?’
o‘Have you considered any risks that may be associated or impacting performance?’
o‘Are you clear on the process for managing underperformance?’
o‘Have you identified other risks you need to consider that may be impacting performance? Eg: Mental or physical health issues? – If yes, please contact People Support for additional support’;
‘Step 5: Implement Performance Improvement Plan (PIP)’ which includes a PIP template and states that the key elements of a good action plan should:
oinvolve a minimum four weeks to allow the employee to meet the goals of the plan;
oinclude clearly written performance goals that are specific, measurable, achievable, relevant, and timed;
oidentify what ongoing training or support will be provided during the plan and by whom;
‘Step 6: Review and Assess’ which sets out some steps and states that:
oat the end of the agreed period of the PIP the leader is required to hold a formal meeting to discuss performance against the plan, deliver an outcome and provide the employee with an opportunity to respond;
oif the PIP has not resulted in the expected performance the next step in the process is formal performance management and the leader will need to engage People & Culture;
oif the employee’s performance does not improve, the next step is to move to a formal meeting and the leader may consider disciplinary action such as a formal warning;
oto progress to a formal meeting a notice of meeting will need to be provided and employees have a formal right of response;
oif performance has improved, this is to be acknowledged, how improvements will be maintained will be discussed, ongoing focus areas are to be highlighted and performance will continue to be monitored;
oif most but not all objectives were met, consider extending the PIP for at least a further two weeks to give the employee another chance to achieve all objectives;
oif an employee takes leave (planned or unplanned) during the PIP, extend the PIP by the duration of leave.

During cross examination Ms Reid’s evidence was that:

the Uplifting Performance Process is a guideline;[43]
it was implemented prior to September 2022;[44]
it was available on the intranet, and she did not send the Applicant a link or otherwise hand her a copy of the document.[45]

The Applicant inferred that the Uplifting Performance Process was not followed and asked Ms Reid a series of questions about this during cross examination. The Applicant put to Ms Reid that there was a requirement under step 2 of the Uplifting Performance Process to develop a plan for performance before an employee is given a PIP to which Ms Reid responded:

“No, this is a guideline. So let me be really clear on that. This is not a process that you have to follow word by word, this is a guideline and approach. My observation was that you have been - that Shayan started coaching you in October, November of 2022. That's the coaching aspect. We don't need to put anything in writing for that. That's all informal. The formal aspect starts from when we present you with a formal performance improvement plan”.[46]

The Applicant also put to Ms Reid that the Respondent missed steps 1 -3 of the Uplifting Performance Process and Ms Reid indicated that she did not agree with this proposition.[47] Ms Reid’s evidence was that she observed that coaching had been provided in accordance with step 1, [48] she wasn’t involved in step 2 because “It was not formal at that point”[49] but she was involved in the First PIP.[50]

The Applicant’s mid-year performance rating in December 2022

Ms Jorquera-Ward gave evidence that the Applicant received an ‘off-track’ rating during her performance review in December 2022 for failing to meet productivity requirements.[51] This is reflected in a document entitled ‘AAF Mid Year Wrap Up FY23’ produced by the Respondent and in which the comments under ‘Leader Evaluation’ state:

‘Throughput has been a key area of concern with Candice over the last 6 months. Candice has discussed this with Amanda previously which pushed to see some uplift in the number of deals being completed per day. Once I was promoted I have had a similar conversation with Candice whose average number of deals completed were lower than effective ranking’.

The comments were made by the Applicant’s team leader at that time, Mr Ahmed.[52]

I note that the terms ‘deals’, ‘applications’ and ‘contracts’ appear to be used interchangeably by the Applicant and Respondent but refer to the same thing. For consistency I refer to these as ‘contracts’ in this decision.

Mr Ahmed’s overarching comments under the heading ‘Mid Year Wrap Up Conversation’ in the document entitled ‘AAF Mid Year Wrap Up FY23’ state:

‘Candice has good product knowledge and a curious nature which results in her asking questions and engaging with the team often which promotes good discussions. Candice has been upskilled to be able to assist in various parts of the team such as PI QA, S2 deals and all introducers.

Daily stats averages were lower earlier in the year roughly around 7.5 deals per day when the minimum numbers to be considered an effective team member were 12 and a stretch was 16 deals per day which would require a 60% increase from 7.5 deals per day to achieve the minimum of 12. There was also an issue in the data being captured in Candice's daily stats which was significantly mismatching to the data we were able to obtain from Power BI reports, which Candice and I have discussed. No sound justification was provided for the variance between the data. I have seen uplift in Candice's daily averages after discussing this in October with her and after the implementation of informal performance management in which all deals actioned by the officer need to be emailed to me at the end of each business day. Another area of concern which has been expressed to Candice before is that she should not be working outside of her allocated working hours to meet the targets and goals being set. This has been ignored and continues to happen despite being brought up. Overall I have assessed Candice to be off-track over the last 6 months’.

Ms Reid gave evidence that she met Mr Ahmed who advised her of his concerns with the Applicant’s performance.[53] Ms Reid said she advised Mr Ahmed that informal performance coaching should commence.[54] I note that the Applicant objected to paragraph 13 of the Statement of Ms Reid, submitting that the evidence in that paragraph is hearsay evidence however Ms Reid is simply stating that Mr Ahmed had advised her of concerns about the Applicant’s performance and she provided advice in response.

Informal performance coaching between January 2023 and April 2023

Ms Reid’s evidence was that the Applicant received informal performance coaching between January 2023 and April 2023 including additional training and support, regular feedback and ensuring her team leader was available if the Applicant had questions.[55] The Applicant appears to contest that she was provided with such coaching.

Ms Reid said that whilst the Applicant’s productivity and performance were sitting below minimum expectations for her role, and in most cases below her peers in the same role, some grace was provided throughout this period to account for the recent introduction of the Verint workforce management system.[56] Ms Jorquera-Ward said the Respondent continued to monitor the Applicant’s performance and provided her with ongoing feedback, coaching and training.[57]

Ms Reid gave evidence that throughout the informal performance coaching, the Applicant was difficult and challenging, failing to concede that there were any issues or to take advantage of the support and feedback provided.[58] Ms Reid did however acknowledge that she did not personally meet with the Applicant until after the outcome of the First PIP during a meeting in which the Applicant was given a warning.[59] As such, her perspective about the Applicant’s conduct at this time appears to be based on information given to her by others, likely Mr Ahmed given she had been providing him with advice.

Concerns raised in March 2023 about the Applicant working outside of rostered hours

Ms Jorquera-Ward gave evidence that the Applicant’s performance started improving shortly after receiving her ‘off-track’ rating however Mr Ahmed discovered that the reason for this was because the Applicant was completing tasks outside of core hours, lifting her productivity.[60] In particular Ms Jorquera-Ward said the system showed the Applicant was processing a higher number of settlements in her rostered hours whereas these processes were actually completed quite late and outside of rostered hours without that time being recorded.[61]

The Applicant appears to challenge the reliability of data concerning her working hours including because Verint, the system used to record time, was not implemented until February 2023. Ms Jorquera-Ward’s evidence during cross examination was that the Respondent started using Verint in January 2023 and this system was in a testing phase for the first two months.[62]

It appears that prior to the implementation of Verint the system for recording time relied on more manual processes. During cross examination Ms Reid’s evidence was that:

Verint was not used between November and January 2023;
prior to Verint there was a manual spreadsheet that the Applicant submitted herself and FIS was also in place; and
when the two data sources were compared a discrepancy between what the Applicant was producing in the manual spreadsheet and what was coming through FIS was identified.[63]

On 16 March 2023 Mr Ahmed gave the Applicant a direction to work within her rostered hours.[64] That direction came in the form of an email with the subject ‘Warning – Adherence to Rostered Hours’ and which stated:

‘Hi Candice,

I am writing to address an ongoing issue that has been brought to your attention on several occasions. Despite my efforts to provide you with clear instructions, it appears that they are not being followed as expected. We appreciate your dedication to your role and your enthusiasm for your work. However, it is imperative that you prioritise your own health and well-being by adhering to your scheduled work hours. It is also unfair to your colleagues that you are completing much higher volumes due to extra hours being put in, as a result your performance stats are also being artificially inflated, which is not an accurate reflection of your performance. A table from the last 7 days has been attached below which shows 13 instances of you working outside the rostered hours, sometime as late as 12:30 am in the morning. Your rostered hours are:

·9:00 am to 5:00 pm on Mon, Tue, Thu
·10:00 am to 6:00 pm on Wed & Fri

…’

The email then identified 13 contracts that were actioned outside these hours on 9 March 2023, 10 March 2023, 13 March 2023, 15 March 2023 and 16 March 2023 and went on to state:[65]

‘Therefore, I am directing you to cease working outside of your rostered hours immediately. No deals should be completed by yourself before or after 15 minutes of your rostered start and finish times for the day, except when you are working pre-approved OT, or are authorised by myself, Michele, or Dyan to work outside your hours. Please continue to send me your daily report of settled and pended deals until further notice.

Please be advised that failure to comply with these instructions will result in further disciplinary action, which may include more serious conversations about your work performance’.

Mr Jorquera-Ward said the direction was provided because:

deliberate data manipulation, such as that caused by working outside of ordinary hours, would result in falsely elevated productivity and this deviated from the integrity standards expected by the Respondent; and
the Respondent’s preference is to train employees to ensure they can meet the requirements of their role within working hours.[66]

The Applicant was taken to Mr Ahmed’s email of 16 March 2023 and the table of 13 contracts that were said to have been actioned outside of working hours during cross examination.[67] The Applicant was asked whether she agreed that the table showed a number of instances where she was working out of her rostered hours to which she responded:

“I'm not sure. I had asked for evidence from FIS for these, because I'd never asked him for that. Because when – in the end, when Cat took over, she said that I had not completed certain deals on time, and then I asked her for some evidence. And then, when she showed me the deals, I realised that they were not something that I was doing in the first place. It was someone – it's like, when I do a contract and I leave it in my name, because the person needs to know who did the contract, and then it goes to the PIQA officer. That is the quality check officer. It still remains in my name. So in the system, it shows that the contract is completed sometimes by me, but it's actually completed by the PIQA officer, but it does not come in their name, that they have completed it. So that was the issue that – I found out later, when Cat gave me the few of them, and I went through the SLAs, and I'll show you in the email that I sent her”.[68]

When questioned further for a response the Applicant said:

“No. So I'm not sure, because I can't remember what contract numbers I did. And as you can see, one is at 7.33, and the other is at 11.59. It could have been, I missed something, could have been something that I missed on that day (indistinct), and I just thought, 'Oh my God, I didn't put something in', and went in – or it could have been someone else who was working late and approved my contract. So I don't know. I can't really say for sure, because they are only contract numbers, and there's no way someone could remember what contract, the numbers they did”.[69]

The Applicant was asked whether, when she received the email of 16 March 2023, she went in to have a look at the contract numbers to which she responded:

“No, because I don't have access to the – to the system, to check exactly what happened. I can see notes, but I can't really tell what (indistinct) is issuing, like, how he got that, and I didn't think that I want to waste my time doing that. I was doing the number of deals that I was supposed to do, and I just thought, like, you know, I'm doing the number of deals, and it's just one or two deals – 10th, (indistinct) three deals. 13th, a few deals, (indistinct) six and seven. I mean, I'm going to the city on those days, in the office, on Monday and Tuesday. So I leave the office – so I don't know”.[70]

During cross examination the Applicant was asked about why she didn’t challenge the email of 16 March 2023 with the table of 13 deals that were said to have been actioned outside of working hours and the Applicant said:

“No. I didn't see the point, because no one was listening to me anyway. So they were just taking what Shayan was saying on face value. And he didn't want me to look at the system, because as soon as I go into the system, he'll say, 'You're logging out, you're logging in when it's not your work'. And during work, I have to make production. So I didn't see the point in wasting my time trying to find out why he's saying that, because ultimately, he will say when I'm working outside my rostered hours. I can't do it within my rostered hours. I can't waste so much of time investigating what he's saying within my rostered hours, because I have to complete a number of contracts”.[71]

When asked whether she was happy to accept the email the Applicant said:

“No, I just – I said, 'Okay, if there's only one or two contracts, and you don't want me to work outside my rostered hours – I'm doing the number of deals you're expecting me to do. I'm giving you the production. You're getting your money's worth. I mean, the company is also profiting from what I'm doing, and you're getting what you're paying me for'. So I didn't see the need to investigate. And as I said, the whole company is working outside their rostered hours anyway. So just a few deals, I didn't see the big issue in that, really.”[72]

Concerns raised by the Applicant in April 2023 and the Respondent’s attempt to meet with her about this

On 26 April 2023, the Applicant sent an email to Emma Fordham, the Respondent's National Manager Settlements, in which she said, by way of summary:[73]

she considered the warning given to her on 16 March 2023 to be baseless, unjustified and lacking in transparency;
she considered her off-track rating to be unjustified;
she had been working on more complex contracts (S2) and ‘all introducers’ which were time consuming;
approximately 40 percent of the staff in the team were not competent enough to action S2 or all introducer deals;
she had successfully managed to complete all tasks with high accuracy and compliance;
her skills and expertise had been acknowledged by the Respondent as she could do allocations, PIQA and be a contract subject matter expert;
downtime in the half yearly review period (between July and December) was experienced by all team members due to IT system issues and this was not taken into consideration when rating her performance;
it was explained to her that the minimum number of contracts required to be completed to be considered an effective team member was 12 each day, she completed 12 contracts each day and produced evidence of this to her team leader and had met all other performance criteria;
she considered the expectation to complete 12 contracts a day to be unrealistic;
reasons beyond her control, such as low volumes of contracts and system issues impacted her ability to meet this target and despite this she stayed after rostered hours to meet the expectations of her team leader;
during team meetings employees were asked to keep themselves ‘in production’ even though there were no deals or contracts to complete, and this indicated that the minimum number of contracts to be an effective team member on days with low volumes or IT issues was not clear and transparent;
she had noticed it was customary practice for staff to work outside their scheduled hours to achieve their personal work goals;
the team leader had sent emails at 1.59am and 2.28am on 7 March, held one-on-one meetings on his annual leave days and worked outside scheduled hours to achieve personal work goals;
she had a concern about the lack of consistency in enforcing company policies as other employees were allowed to work outside their scheduled hours without consequence and did not have to come to work two days per week as directed by the CEO.

In her email the Applicant also indicated that she was seeking:

that the warning given to her on 16 March 2023 “be nullified”;
clarity, transparency, that comparison of workloads be fair and that roles be distributed equally;
a ‘character certificate’;
that daily performance reports be sent to all team members to enable a fair and transparent comparison;
to have her own performance report provided to her each day;
to be treated fairly; and
to have her ‘off-track’ rating changed to ‘on-track’.

Ms Fordham responded to the Applicant’s email later that day, 26 April 2023, and by way of summary said:[74]

she had previously confirmed that the email from Mr Ahmed on 16 March 2023 was not a warning and was not on the Applicant’s file;
the email on 16 March 2023 was justified as the Applicant was working outside her rostered hours when she had been told on multiple occasions not to do so;
the Respondent did not want her to do more hours than her rostered hours and if she did it needed to be put through as overtime or time off in lieu;
the workload expectation from the team was based on a team average;
she did not understand why the Applicant sought a character reference and she would not be providing one;
she had been advised that the daily statistics were being sent on a daily basis to the team and she would follow up to ensure the Applicant’s personal productivity statistics were shared with her daily;
the Respondent did not want the Applicant working outside of her rostered hours;
the half yearly ‘off track’ rating would remain.

Ms Jorquera-Ward gave evidence that:

· in an attempt to address the Applicant’s questions, her leader attempted to arrange a meeting with her;
· the day the meeting invitation was sent to the Applicant, she applied for four weeks of unpaid leave[75], this period was extended and the Applicant returned to work on 8 June 2023.[76]

Ms Reid indicated that the Applicant was absent on unpaid leave between 28 April 2023 and 8 June 2023.[77]

Applicant’s ‘Unsatisfactory Performance’ rating in her end of financial year 2022- 2203 performance appraisal

Ms Jorquera-Ward’s evidence was that the Applicant received a rating of ‘Unsatisfactory Contribution’ in her end of year performance appraisal.[78]

A copy of the ‘AAF End of Year Wrap Up’ for the period 1 July 2022- 30 June 2023 was produced by the Respondent and indicates that while the Applicant’s self-rating for all performance areas was ‘Outstanding Contribution’ there were areas where Mr Ahmed had rated the Applicant’s contribution as an ‘Unsatisfactory Contribution’. Mr Ahmed’s comments concerning the Applicant’s productivity included the following:

‘Improving throughput has been a key focus for Candice over the past year. There have been several instances where deals were completed outside of regular working hours, resulting in an inflated average number of deals per day. While this has allowed for higher volumes in a day, it is important to consider adjusting the number of days worked when working outside of regular hours to ensure accurate calculation of average deals completed per day. Once these calculations are completed the deals per day were significantly lower. Effective feedback discussions are crucial for growth, and it is important to focus on active listening and mutual understanding to be able to implement recommendations successfully and to enable growth’.

Mr Ahmed’s overall summary in the ‘End of Year Wrap Up Conversation’ section of the appraisal stated:

‘Candice demonstrates strengths in her engagement, queries, and the quality of her work, which contribute positively to the team. However, there are areas where she can further improve her professional conduct. There are some counter-productive and behavioural concerns that I have regarding Candice. It would be beneficial for Candice to foster a more open and receptive attitude towards feedback and evaluations, as this will support her growth and development. There have been instances where personal opinions overshadowed the facts and data presented by management, suggesting a lack of openness to feedback. I would also like to note that making accusations of bullying and perceiving bias has created some confrontational situations.

In terms of communication with business partners and stakeholders, there is potential for improvement, particularly in ensuring clarity and consistency in error handling and adherence to procedural guidelines.

Additionally, Candice's focus on increasing throughput is commendable, but it is important to consider adjusting the calculation of average deals completed per day, taking into account the extra time put in, to maintain accuracy, similar to when OT is worked.

Effective feedback discussions centred around active listening and mutual understanding will facilitate successful implementation of recommendations and overall personal growth’.

During the hearing the Applicant presented another document which she said was different from the ‘AAF End of Year Wrap Up’ document produced by the Respondent.[79] In particular, the Applicant noted that Mr Ahmed’s ‘Unsatisfactory Contribution’ as referred to above was referred to as ‘Limited Contribution’ in that document.

During cross examination Ms Jorquera-Ward indicated that ‘Unsatisfactory Contribution’ and ‘Limited Contribution’ have the same meaning,[80] I accept this is the case and the differences in the documents are therefore not material.

Implementation of the First PIP

Ms Jorquera-Ward’s evidence was that the Applicant was placed on the First PIP in or around July 2023.[81] A copy of the First PIP was sent to the Applicant for review by Mr Ahmed on 24 July 2023.[82]

The First PIP set out the following requirements: [83]

in relation to the ‘throughput’ development area, that the Applicant improve productivity by delivering:
o80 percent productivity in week 1;
o85 percent productivity in week 2;
o85 percent productivity in week 3; and
o90 percent productivity in week 4;
in relation to the ‘quality’ development area, that the Applicant maintain:
o90 percent quality in weeks 1 and 2; and
o95 percent quality in weeks 3 and 4;
in relation to the ‘Taking Ownership of SLA Deals’ development area, a requirement that ‘deals in SLA must not be left in the queue without notifying an allocator or team leader’;
in relation to the ‘working within rostered hours’ development area, a requirement that the Applicant ‘must work within rostered hours as communicated in emails’;
in relation to the punctuality and attendance development area, requirements that:
omedical absences be evidenced with a medical certificate;
obreaks are no longer than 30 minutes;
oVerint is used correctly to capture data including that:
§shrinkage is captured correctly;
§notes are attached to activities;
§logging in and out occurs at the correct times; and
§correct volumes are entered;
othe Applicant request help if she had concerns using the system or if errors requiring amendment were made;
othe Applicant demonstrate proactive time management skills by consistently completing assigned tasks within a specified timeframe (e.g. timesheets, or other reasonable leader directed tasks);
oensure consistent attendance at the office at least two times per week.

On 26 July 2023, the Applicant wrote to Ms Fordham raising concerns about the First PIP and stated, by way of summary:[84]

she had consistently demonstrated exceptional performance and achieved an almost 100 percent quality rating while meeting SLAs;
most days she had achieved her target of 12 deals or contracts each day, depending on contract volumes or system issues, for the last financial year as per objectives set by management;
she was the only team member who came to the office twice a week diligently and as per company policy;
she had showcased her ability to handle complex tasks efficiently and accurately;
her prompt communication with management in cases of illness or inability to reach the office aligned with HR requirements;
the specific objectives listed in the First PIP, including throughput, quality, SLA deals, rostered hours and attendance seemed to lack contextual consideration and appreciation of her outstanding performance;
she believed the inclusion of the objectives in the First PIP was not justified and may have a demoralising effect on her as she had exceeded expectations in those areas;
in relation to the ‘throughput’ and ‘quality’ objectives of the First PIP, the weekly productivity and quality development areas required a substantial increase each week and she was concerned:
othis may impose significant challenges to achieve;
osetting such ambitious targets without taking into consideration external factors and workload fluctuations might not be reasonable or conducive to maintaining employee wellbeing;
in relation to the development area ‘Taking Ownership of SLA Deals’, she considered a fair assessment should acknowledge that some deals might require more time and attention than others and consider the complexity and volume of deals in the queue;
in relation to the development areas ‘Working within Rostered Hours’ and ‘Punctuality and Attendance’, she considered that proactive time management should be done in a way that supports employee well-being and acknowledged unforeseen circumstances that may arise;
while she understood the significance of accurate data entry she considered a more comprehensive and supportive approach would be beneficial and that additional training could help ensure team members were equipped with the necessary skills and knowledge to use the system efficiently;
it should be acknowledged that occasional challenges or errors may arise;
her ability to learn from feedback and continuously improve her performance should be acknowledged and ‘not used as a basis for a PIP’.

The Applicant went on to request in the email that the First PIP be withdrawn.

Ms Fordham responded to the Applicant via email on 28 July 2023 and, by way of summary, stated:[85]

the Applicant’s productivity targets had been set at below the team average to start with as the team average was 90 percent, her first week target was 80 percent and her second and third week targets were 85 percent;
while the team average was 90 percent, if there wasn’t enough work in the queue then the productivity target would be based on the team average for that day;
she acknowledged that there had not been any issues with the Applicant’s quality results;
it was expected that everyone in the team advise if they had any deals in the queue that had been allocated and could not be actioned so they could be reallocated;
if the Applicant needed to change her work hours that was something that could be discussed as the Respondent was very focused on ensuring the team had the right work life balance;
if the Applicant felt she needed more training in Verint that could be arranged;
the First PIP would remain in place.

During cross examination Ms Jorquera-Ward’s evidence was that the productivity level at which the team was performing when the First PIP was implemented in July was 90 percent[86] and this appears to align with Ms Fordham’s email above.

However, the Applicant took Ms Jorquera-Ward to an email from Ms Fordham to the Applicant dated 6 September 2023 in which Ms Fordham includes the following table setting out what Ms Fordham indicates are productivity statistics for the Applicant and her team:

Team Prod
Month	January	February	March	April	May	June	July	August
Team	80.70%	65.60%	68.50%	80.50%	86.10%	88.60%	86.30%	91.30%
Candice	70.10%	71.20%	65.70%	65.30%	-	71.90%	70.30%	82.10%

The Applicant put to Ms Jorquera-Ward that the team average was not 90 percent when the First PIP was given to her in July 2023 and asked Ms Jorquera-Ward questions about how the 90 percent target was set and whether this target was fair without knowing what the team average would be in the future.[87] Ms Jorquera-Ward responded:

“We made an assessment of the trajectory monthly, if that's been happening for the last few months, and we also made an assessment on team members within the team and where we expected them to uplift”.[88]

During the hearing Ms Reid was asked to describe how the percentages in the First PIP were determined and she responded as follows:

“So for the first three weeks, it's determined at a gradual increase. So 80 per cent, 85 per cent, 85 per cent, and this one's speaking to - particularly to [productivity] and that is considered below the team average, but it's to account for a gradual increase of their approach, and in the final week, week 4 is 90 per cent at the team average”.[89]

Applicant’s further challenge to the First PIP

On 1 September 2023 the Applicant sent another lengthy email to Ms Fordham challenging the First PIP and her assessments regarding that PIP. The Applicant attached a table which she suggests shows she was given inconsistent data by Mr Ahmed and Ms Jorquera-Ward.[90]

Ms Fordham responded on 6 September 2023 indicating that the First PIP would continue. [91]

Extension of the First PIP

Ms Jorquera-Ward gave evidence that:

the Applicant was absent on sick leave between 18 and 31 August 2023 and had only completed two weeks of the First PIP prior to this absence;
during the First PIP the Applicant’s leader changed and when she returned from leave she had a new leader;
the First PIP was extended as a result of these factors. [92]

Ms Reid said the Applicant’s First PIP was extended until 12 October 2023 to ensure the Applicant had an opportunity to improve her performance without being impacted by the change in her team leader.[93]

Further concerns raised by the Applicant in October 2023

On 24 October 2023 the Applicant sent a lengthy email to Ms Fordham in which, by way of summary, she:[94]

raised concerns about her productivity statistics for January 2023 indicating that:
oshe only worked for four days, spending two days in compliance training and two days settling contracts, and was on annual leave for the balance of the month;
oduring the four days she worked she completed 12 deals and her productivity for the month of January 2023 was marked as 70.1 percent when it should have been 100 percent;
oin January 2023 Verint did not calculate team productivity and only commenced in February 2023, during which time training and guidance were still being implemented, and as a result she believes the statistics may have been fabricated;
said she did not work any overtime from August to October however the excel spreadsheet used to calculate productivity included overtime hours;
said it appeared her productivity may have been deliberately sabotaged by placing her data in the overtime column which lowers the productivity percentage;
said she believed the team data, including overtime, was entered into the core hours column, artificially inflating the team’s productivity compared to her productivity from August to October 2023;
said the team’s average productivity was 79 percent and the sudden surge in team averages from August onwards was statistically implausible, ranging from 91.30 percent and upwards;
alleged these issues raised questions about the transparency, credibility and fairness of the data used for performance evaluations;
referred to certain contracts that she said had been completed within the SLA, contrary to what had been asserted;
said the majority of contracts her team leader had indicated did not meet SLAs were ‘settled deals’ and that every settled contract remained in the name of the person it was allocated to;
said the time it took to move a contract/deal through different teams before reaching her should not be held against her SLA compliance and it was essential to consider the entire process, including the time taken for a deal to move from the allocator, to the Applicant to the PIQA queue for settlement;
said the performance objectives that had been set for her were unreasonable and unfair because, in summary:
oshe had been assigned more complex S2 deals which accounted for only 25 percent of the team’s tasks, placing an undue burden on her;
oshe had been excluded from tasks such as allocation and other tasks affecting her ability to demonstrate performance across all team activities;
othere was unequal access to knowledge sharing and training resources;
ountil May 2023 more than 25 percent of team members were not involved in handling S2 deals or other introducers and this may have contributed to an unfair comparison between the Applicant and her colleagues as she had been doing more complex work;
osome team members were assigned fewer complex tasks that did not undergo quality checks and their productivity and quality was assumed to be 100 percent whereas in contrast she handled more complex deals which involve higher levels of complexity and scrutiny;
othe quality targets of 95 percent with a stretch target of 99 percent were unreasonably high, considering that achieving near-perfect quality in a real-world environment was exceptionally challenging;
othe targets may be considered arbitrary and punitive as they did not consider the inherent complexities and occasional errors that can occur in any job;
oimposing stringent expectations without considering external factors beyond an employee’s control could be deemed unreasonable and unrealistic;
othe scoring system penalised an employee with a 20 percent reduction for a single, non-critical error and this created a situation where a single mistake could make it virtually impossible to achieve the 95 percent quality objective and could discourage employees from reporting errors;
described a number of errors that the Applicant said her team leader had made himself.

Ms Fordham replied on 31 October 2023 in an email which, by way of summary, stated:[95]

she had reviewed the data with the leadership team, most of the matters raised had been discussed and she would not be addressing all of the Applicant’s points raised;
the First PIP would continue;
the Applicant’s team leader had already had a conversation with the Applicant about her concerns regarding data manipulation and unfair treatment, noted an error in the title of an excel sheet column, rectified this and explained that there was no impact on the Applicant’s productivity as a result of this;
the SLA was based on when the application comes into the queue and not when it was allocated to the Applicant, she considered the Applicant was given ample time to complete the applications and if she had concerns in meeting the SLA she should have reached out to a team leader so it could have been reallocated;
the Applicant had not been assigned more S2 deals than the rest of the team and the workload was evenly distributed across the entire team;
she wanted the Applicant to focus on meeting the First PIP before introducing additional tasks and once the Applicant was meeting the requirements she would work through additional learning she had highlighted in her development plan;
the performance objectives were based on the team’s performance with stretch goals included and this had been discussed with her.

Meeting to discuss the First PIP and outcome

Ms Jorquera-Ward’s evidence was that the Applicant’s team leader advised her that the Applicant had not met the requirements of the First PIP and while the Applicant had met some of the First PIP requirements, she had not met all goals as required by the fourth week.[96]

Ms Jorquera-Ward gave evidence that:

·   a meeting was scheduled with the Applicant to advise her of the outcome of the First PIP on 25 October 2023;
·   the Applicant asked to change the meeting date to 26 October 2023 and this was agreed;
·   the Applicant then went on sick leave and did not return until 8 November 2023.[97]

The meeting ultimately took place on 9 November 2023.[98] In particular, Ms Reid said that she and Mr Kwok met with the Applicant and her support person online via Microsoft Teams to discuss the outcome of her First PIP.[99]

The Applicant gave evidence that at the beginning of the meeting Mr Kwok said:

“Quality week 1 and week 2, 100 percent, week 3 – 97.5 percent, week 4 – 88 percent.

Productivity for week 1 – 85.9 percent, week 2 – 84.1 percent, week 3 – 77.8 percent out of 85 percent and week 4 – 83.8 percent instead of 90 percent.

SLA’s achieved, working within rostered hours achieved.

In week 4 you got 83.8 percent instead of 90 percent. Overall you have not met the PIP.

Do you have anything to say?”[100]

The Applicant said that during the meeting:[101]

she replied stating she would explain the email she sent to Ms Fordham on 24 October 2023 which would “make it clear” why she could not be compared to others as she did “complex tasks like S2 deals and all introducers”;
Mr Kwok responded “Emma has replied to that email”;
she asked Ms Reid if she had the opportunity to read the email sent to Ms Fordham on 24 October 2023;
Ms Reid responded “I come to these meetings as a third party to take notes and support”;
the Applicant responded “As Jonathan has already spoken and stated what he had to say I would like an opportunity to respond as well” and said “I will share my screen to show evidences and emails on the screen”;
Ms Reid said “Turn on your camera”;
the Applicant replied “I am still showing the evidences (sic) on the screen. I have not finished yet” and proceeded to state “Majority of the time I have always got nearly 100 percent in quality throughout my time at Angle. In week 3 and week 4 there has been low volumes of S1 and S2 deals/contracts”;
Ms Reid then said “That (sic) you did not ask for work?”;
the Applicant replied “In the past I was told by Cat that the only task I should do is process S1 and S2 deals/contracts and no other task which I am credited for will be assigned to me. On the low volume days I was told to put myself in production even though there was no deals/contracts to action which has adversely affected my productivity”;
Ms Reid interrupted stating “The purpose of the meeting is not to have a conversation about the PIP but to tell you that you have failed the PIP and will be given a warning”;
the Applicant then said “Before you give me a warning you need to give me the opportunity to respond and explain. Do you know about data manipulation in Verint?”
Ms Reid then interrupted in an aggressive tone, said “It’s a business decision to give you a warning this is how the process works. I have being (sic) doing this for my entire career. I need to pick up my child its getting late” and terminated the meeting.

Ms Reid attached a copy of her notes of the meeting to her witness statement which indicate, by way of summary, that:

the Applicant joined the call as an ‘avatar’ and when Ms Reid asked her to join as herself and turn her camera on, she turned the camera off and it remained off for the duration of the call;
Mr Kwok explained that the purpose of the meeting was to discuss how she performed throughout the First PIP period and to clarify next steps;
the Applicant did meet the requirements earlier on in the First PIP but in weeks three and four he did not see the required uplift in throughout and that was where he needed to see continued improvement and more focus;
the Applicant interrupted and shared her screen which showed an excel spreadsheet and tried to persuade Ms Reid not to proceed with the performance improvement process;
Ms Reid explained that whilst she did not have a technical understanding of her role, she had seen the emails between the Applicant and Ms Fordham whereby Ms Fordham had confirmed her comfort that there had been consistent underperformance;
she asked the Applicant on a number of occasions to listen to her and Mr Kwok and to lower her voice;
the Applicant continued to question the feedback and shared various documents on her screen;
the conversation was not productive with unclear jargon used;
Mr Kwok indicated that he wanted the Applicant in the team but needed her to accept the feedback and coaching;
she needed to end the call as it was unproductive and the Applicant was not prepared to listen to the feedback and rationale.

Ms Reid’s evidence was that:

the Applicant disputed all feedback during the meeting and challenged the outcome;[102]
she considered the Applicant’s conduct during the meeting to be unprofessional as she raised her voice, dismissed the outcome, failed to concede there were any issues with her performance or take advantage of the support and feedback provided;[103]
consistent with Ms Reid’s meeting notes, the Applicant was asked to turn her camera on, refused to do so and proceeded to attend as an avatar or with her camera off for the duration of the meeting;[104]
after forty-five minutes of conversation, she told the Applicant she would be ending the call as the unprofessional behaviour was escalating and no productive outcome was going to be achieved;
as she had committed to one final review with Ms Fordham, she confirmed that the warning would not be provided until the review was complete.[105]

During cross examination the Applicant was asked:

‘You didn't turn your camera on, despite being specifically asked to do so?’

to which she replied:

‘No, because it was supposed to be an audio meeting. It is in the meeting requested, said 'audio, please call telephone or use the chat teams', it didn't say – at nowhere in the meeting did she say that I had to have my camera on, because I always have that picture which you see on this screen over here. It's always there on this screen, so’.[106]

It was then put to the Applicant that during the meeting Ms Reid asked her to turn the camera on to which she replied:

‘But I was explaining to her – when I was trying to explain to her about the week 4, what had happened, how the average is wrong and how the – why is my quality at 88, because it should be around 95, because I did do the – I did have the approval, I did see, I went as per SOPs, I did everything as for the SOPs. So there is no way that my – that was incorrect. So I was trying to show her that in the – on the - - -‘

…

‘Yes, I was explaining to her that, and then she was, like, but if I put the camera on then I can't show her the document. So I told her let me show her the document.’[107]

Applicant’s email of 10 November 2023

On 10 November 2023 the Applicant wrote to Ms Reid via email[108] setting out concerns related to those she set out in her email to Ms Fordham on 24 October 2023 and Ms Fordham’s email response on 31 October 2023. In particular, the Applicant:

continued to allege her productivity data had been manipulated, that the reliability of her performance metrics had been compromised, that this impacted the assessment of her performance and that other employees had been treated differently;
acknowledged Ms Fordham’s clarification that the SLA calculation was based on when the application came into the queue but maintained that SLAs should be assessed when the task is assigned to a team member as there were new conditions beyond her control and influence;
said that her SLA performance was consistently at 100 percent before the introduction of the new SLA calculations on 1 July 2023 and that the historical data should be considered when evaluating her performance against SLAs;

The Applicant a submitted that while her claim is an unfair dismissal claim, ‘the context of the Applicant’s whistleblower activities and the adverse actions taken against her should not be ignored’ and her ‘performance issues coincided with her raising concerns about unethical practices, which suggests potential retaliation, contrary to the protections under the FW Act.’[519]

The Applicant also submitted, with reference to s.387(h) that:

the ‘witness statements of Ms Allannah Reid, Ms Cat Jorquera-Ward, and Ms Rahcel Wade and the procedural history demonstrate potential bias and prejudicial conduct towards the Applicant’;
that the ‘Respondent’s claims of the Applicant’s unprofessional behaviour and the subsequent handling of her performance reviews indicate bias’;
the ‘tone and content of communications suggest a predetermined outcome’; and
in ‘Anderson v Theiss [2017] FWCFB 363, bias and a lack of impartiality in handling performance issues were critical factors in ruling the dismissal as unfair’.

I note that the only decision of the Full Bench of the Commission that I have been able to find in which the parties were Anderson v Theiss[520]is a 2015 decision with a different citation. This matter concerned an appeal against the then Deputy President not to reinstate the applicant in that matter and did not relate to the principles advanced above.

The Respondent submitted that the Applicant’s allegations in respect of s.397(h) of the FW Act do not support a conclusion that the Applicant’s dismissal was harsh, unjust or unreasonable.[521] In particular, the Respondent submitted:

the allegation that the Applicant has not been paid for the overtime hours that she worked is baseless, overtime hours recorded by the Applicant in 2022 have been paid, the Applicant recorded no overtime in her timesheets from the period December 2022 to the termination date, the Applicant has been paid in accordance with the hours that she has recorded that she worked and the Applicant did not apply for reimbursement of work from home equipment until her employment was terminated;
the claim the Applicant has made is an unfair dismissal claim and not a general protections claim, and any submissions relating to alleged adverse action should be dismissed;
the evidence is clear that decisions relating to the Applicant’s performance and conduct were unrelated to any whistleblower claim made by the Applicant, and that processes
implemented for managing both her capacity and her conduct commenced well before the whistle-blower claim was made;[522]
no additional factors militate to support a conclusion that the Applicant’s dismissal was harsh, unjust or unreasonable or devoid of any valid reason.[523]

Findings

The Applicant’s submission that it is common practice in the settlements team for managers and staff to work outside of rostered hours[524] appears to be put forward in an attempt to justify the Applicant’s behaviour in working outside of rostered hours. However, as I have earlier found, while the Applicant’s team members worked overtime from time to time, they needed approval to do so and the Respondent’s evidence suggests they did. This is to be distinguished from the Applicant’s circumstances in which she not only worked outside of her rostered hours without approval to do so but after she had been told on multiple occasions not to do this. The Applicant’s role as a Settlements Officer is also distinguishable from the roles of her leaders who appeared to have been working out of standard business hours and who were not subject to the same directions to perform their work within certain times. The time boundaries within which the Applicant was required to complete her work were made abundantly clear to the Applicant and the practices of her leaders sending emails late at night, while a practice to be discouraged, did not nullify the clear direction given to the Applicant.

There is an argument that basing minimum performance targets on a team average may be problematic given the nature of an average is such that there will always be employees that fall below it and not all employees can perform at or above the average using this measure. In this regard, the Applicant’s concerns about the productivity targets set for her have some merit. I have given consideration as to whether this in any way justifies the Applicant’s conduct, including working outside of rostered hours in contravention of the direction given to her and the way in which she engaged in the performance management and disciplinary processes.

While I accept that the Applicant may have felt some frustration about the metrics and concerns that were raised about her productivity, by working outside rostered hours it appeared that the Applicant was producing more work in less time. This practice not only impacted the measurement of the Applicant’s performance but would have had the effect of inflating the average that other team members were benchmarked against, giving rise to inherent unfairness for her team members. Despite my observations about the application of an average as a performance benchmark, I have earlier made observations that if an employee was performing consistently below or well below their peer group this may, dependent on the reasons, give rise to legitimate performance concerns. Given the way the Respondent measures productivity, the Applicant’s own conduct in working outside rostered hours contributed to the unreliability of the data in the measurement of her performance. It is apparent that once the Respondent had adjusted the Applicant’s productivity results from the Second PIP to take into account the contracts completed outsider of rostered hours the Applicant’s performance in relation to productivity was well below her performance during the First PIP and was well below the team average. In these circumstances, I am unable to conclude that the performance measures implemented were unreasonable such that they excused the Applicant’s conduct that I have found constituted a valid reason for dismissal.

Further, as noted by the Respondent, the claim that the Applicant made is an unfair dismissal claim and not a general protections claim however in any case I am not satisfied that the Applicant was dismissed because she raised a whistleblower complaint but rather because the Respondent had concerns about her performance and conduct and the Applicant’s own conduct made it very challenging for the Respondent manage those concerns. The relationship clearly became unsustainable.

The Applicant’s allegations of underpayment of wages are not made out based on the evidence before the Commission and I make no findings about them however note that if the Applicant has concerns that she has been underpaid there are rights that can be pursued in other jurisdictions and complaints can be made to the Fair Work Ombudsman, the appropriate regulator dealing with underpayment of wages.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

I have made findings in relation to each matter specified in section 387 as relevant.

I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[525]

Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable because:

there was a valid reason for the Applicant’s dismissal based on her conduct, most pertinently the Applicant’s failure to comply with the multiple lawful and reasonable directions given to her to work only within her rostered hours. There were cogent reasons for the provision of this direction including health and well-being considerations, fairness to peers in an environment where performance is measured relative to peers completing work in productive time, and a reasonable desire to accurately measure performance;
the Applicant was notified of the allegations that had been made about her conduct, with such conduct ultimately constituting a valid reason for dismissal, and was given an opportunity to respond to them;
the Applicant’s behaviour was such that it is apparent that she was not receptive to the direction given to her, securing her participation in meetings to discuss concerns was highly challenging and she was unlikely to participate in the Respondent’s performance and disciplinary processes in a constructive manner. It was apparent that the continuation of her employment was not sustainable in these circumstances.

Conclusion

Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act. The Applicant’s application is therefore dismissed.

COMMISSIONER

Appearances:

Ms Candice Dias on her own behalf.
Ms L Shanahan of Kingston Reid for the Respondent.

Hearing details:

2024.
June 17, 18, 20, 21.
Sydney (in person).

[1] Applicant’s submissions at [91].

[2] Applicant’s Submissions at [6], Respondent’s Submissions at [7], Respondent’s Form F3.

[3] Statement of Allannah Reid at [7], Applicant’s submissions at [6].

[4] Medical certificates dated 25 October 2023 and 30 October 2023 attached to Respondent’s Form F3.

[5] Warrell v Fair Work Australia [2013] FCA 291.

[6] Warrell v Fair Work Australia [2013] FCA 291.

[7] Respondent’s submissions regarding representation at [6].

[8] Respondent’s submissions regarding representation at [7].

[9] Respondent’s submissions regarding representation at [8].

[10] Respondent’s submissions regarding representation at [9].

[11] Respondent’s submissions regarding representation at [10] with reference to Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Ltd [2010] FWC 2966 at [16]; NTEU v University of Notre Dame [2014] FWC 2409 at [31] – [32].

[12] Respondent’s submissions regarding representation at [10] – [11].

[13] Applicant’s ‘Unfair dismissal application Form F2’; Respondent’s ‘Form F3 – Employer response to unfair dismissal application’.

[14] Respondent’s ‘Form F3 – Employer response to unfair dismissal application’, response to question 1.5.

[15] Respondent’s ‘Form F3 – Employer response to unfair dismissal application’, response to question 1.1.

[16] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[17] Respondent’s Form F3.

[18] Respondent’s Form F3.

[19] Respondent’s Form F3.

[20] Respondent’s Form F3.

[21] Transcript of proceedings, 17 June 2024, PN 224.

[22] Transcript of proceedings, 17 June 2024, PN 226.

[23] Transcript of proceedings, 17 June 2024, PN 228.

[24] Transcript of proceedings, 17 June 2024, PN 232.

[25] Transcript of proceedings, 17 June 2024, PN 233.

[26] Transcript of proceedings, 17 June 2024, PN 229.

[27] Transcript of proceedings, 17 June 2024, PN 235.

[28] Transcript of proceedings, 17 June 2024, PNs 236 - 237.

[29] Jorquera-Ward Statement at [9].

[30] Jorquera-Ward Statement at [10].

[31] Jorquera-Ward Statement at [10].

[32] Jorquera-Ward Statement at [11].

[33] Transcript of proceedings, 21 June 2024, PNs 4714 – 4720.

[34] Transcript of proceedings, 21 June 2024, Ps 4571 – 4754, PN 5473.

[35] Transcript of proceedings, 20 June 2024, PN 4010.

[36] Transcript of proceedings, 20 June 2024, PNs 4011 - 4013.

[37] Transcript of proceedings, 20 June 2024, PN 4015.

[38] Transcript of proceedings, 20 June 2024, PN 4014.

[39] Respondent’s Form F3.

[40] Respondent’s Form F3.

[41] Respondent’s Form F3.

[42] Exhibit A7.

[43] Transcript of proceedings, 18 June 2024 at PN 2176.

[44] Transcript of proceedings, 18 June 2024 at PN 2178.

[45] Transcript of proceedings, 18 June 2024 at PNs 2179 – 2180.

[46] Transcript of proceedings, 20 June 2024 at PN2968.

[47] Transcript of proceedings, 20 June 2024 at PN2992.

[48] Transcript of proceedings, 20 June 2024 at PN3005.

[49] Transcript of proceedings, 20 June 2024 at PN3017.

[50] Transcript of proceedings, 20 June 2024 at PN3020.

[51] Jorquera-Ward Statement at [12].

[52] Transcript of proceedings, 17 June 2024, PN 266.

[53] Reid Statement at [13].

[54] Reid Statement at [13].

[55] Reid Statement at [14].

[56] Reid Statement at [14].

[57] Jorquera-Ward Statement at [12].

[58] Jorquera-Ward Statement at [16].

[59] Transcript of proceedings, 20 June 2024 at PN3024 - 3025.

[60] Jorquera-Ward Statement at [12].

[61] Jorquera-Ward Statement at [12].

[62] Transcript of proceedings, 20 June 2024 at PN 3987.

[63] Transcript of proceedings, 18 June 2024, PNs 2231 – 2233.

[64] Reid Statement , Attachment AR1.

[65] Reid Statement , Attachment AR1.

[66] Jorquera-Ward Statement at [23].

[67] Transcript of proceedings, 17 June 2023, PNs 375 – 378.

[68] Transcript of proceedings, 17 June 2023, PN 379.

[69] Transcript of proceedings, 17 June 2023, PN 380.

[70] Transcript of proceedings, 17 June 2023, PN 381.

[71] Transcript of proceedings, 17 June 2023, PN 387.

[72] Transcript of proceedings, 17 June 2023, PN 388.

[73] Reid Statement, Attachment AR-2.

[74] Reid Statement, Attachment AR-2.

[75] Jorquera-Ward Statement at [13].

[76] Jorquera-Ward Statement at [14].

[77] Reid Statement at [15].

[78] Jorquera-Ward Statement at [14] – [15].

[79] Exhibit A24.

[80] Transcript of proceedings, 21 June 2024 at PN5188.

[81] Jorquera-Ward Statement at [14] – [15].

[82] Reid Statement, Attachment AR-4, email from Mr Ahmad to the Applicant dated 24 July 2023 attached to Respondent’s Form F3.

[83] Jorquera-Ward Statement, Attachment CJW-1; Reid Statement, Attachment AR-3.

[84] Reid Statement, Attachment AR-4.

[85] Reid Statement, Attachment AR-4.

[86] Transcript of proceedings, 20 June 2024, PNs 4017 – 4028.

[87] Transcript of proceedings, 20 June 2024, PNs 4155 – 4160.

[88] Transcript of proceedings, 20 June 2024, PN 4160.

[89] Transcript of proceedings, 20 June 2024, PN3732.

[90] Transcript of proceedings, 18 June 2024, PNs 2435 – 2479; Exhibit A16.

[91] Exhibit A11.

[92] Jorquera-Ward Statement at [15] – [16].

[93] Reid Statement at [21].

[94] Reid Statement, Attachment AR-5.

[95] Reid Statement, Attachment AR-5.

[96] Jorquera-Ward Statement at [17].

[97] Jorquera-Ward Statement at [17].

[98] Jorquera-Ward Statement at [18].

[99] Reid Statement at [28].

[100] Applicant’s Statement at [54].

[101] Applicant’s Statement at [54].

[102] Reid Statement at [30].

[103] Reid Statement at [30].

[104] Reid Statement at [31].

[105] Reid Statement at [32].

[106] Transcript of proceedings, 17 June 2024, PN 733.

[107] Transcript of proceedings, 17 June 2024, PN 734 - 735.

[108] Reid Statement, Attachment AR-7.

[109] Reid Statement, Attachment AR-7.

[110] Reid Statement at [34].

[111] Reid Statement, Attachment AR-7.

[112] Jorquera-Ward Statement at [18], Reid Statement, Attachment AR7.

[113] Jorquera-Ward Statement at [20].

[114] Reid Statement at [35].

[115] Applicant’s Statement at [60] – [61].

[116] Performance Improvement Plan dated 14 November 2023, attached to Respondent’s Form F3.

[117] Applicant’s Statement at [63].

[118] Applicant’s Statement at [64].

[119] Applicant’s Statement at [65].

[120] Applicant’s Statement at [66].

[121] Jorquera-Ward Statement at [55].

[122] Applicant’s Statement at [67].

[123] Applicant’s Statement at [71].

[124] Applicant’s Statement at [73].

[125] Jorquera-Ward Statement at [55].

[126] Jorquera-Ward Statement at [71].

[127] Jorquera-Ward Statement at [21].

[128] Jorquera-Ward Statement at [24], Attachment CJW-2.

[129] Applicant’s Statement at [70].

[130] Jorquera-Ward Statement, Attachment CJW-2.

[131] Applicant’s Statement, Attachment A24.

[132] Applicant’s Statement, Attachment A24.

[133] Jorquera-Ward Statement at [55].

[134] Jorquera-Ward Statement at [24], Attachment CJW-2.

[135] Transcript of proceedings, 17 June 2024, PN832.

[136] Jorquera-Ward Statement at [24].

[137] Transcript of proceedings, 17 June 2024, PNs 839 - 844.

[138] Jorquera-Ward Statement at [24].

[139] Jorquera-Ward Statement at [25].

[140] Jorquera-Ward Statement at [26]; Medical Certificate dated 8 December 2023 attached to Respondent’s Form F3.

[141] Jorquera-Ward Statement at [26].

[142] Jorquera-Ward Statement at [27].

[143] Reid Statement at [41].

[144] Reid Statement at [42].

[145] Jorquera-Ward Statement at [28] - [29].

[146] Reid Statement, Attachment AR-9; email from Applicant to Ms Jorquera-Ward dated 19 January 2024 attached to Respondent’s Form F3.

[147] Jorquera-Ward Statement at [29].

[148] Reid Statement, Attachment AR-9; email from Ms Reid to the Applicant dated 18 January 2024 attached to Respondent’s Form F3.

[149] Applicant’s Statement at [83].

[150] Letter from Ms Jorquera-Ward to the Applicant dated 18 January 2024 attached to Respondent’s Form F3.

[151] Letter from Ms Jorquera-Ward to the Applicant dated 18 January 2024 attached to Respondent’s Form F3.

[152] Jorquera-Ward Statement at [30]; ; Reid Statement, Attachment AR-9.

[153] Reid Statement, Attachment AR-9; email from Applicant to Ms Jorquera-Ward and Ms Reid dated 22 January 2024 attached to Respondent’s Form F3.

[154] Jorquera-Ward Statement at [31].

[155] Reid Statement, Attachment AR-9.

[156] Jorquera-Ward Statement at [31]; Reid Statement, Attachment AR-9.

[157] Reid Statement, Attachment AR-9.

[158] Jorquera-Ward Statement at [31].

[159] Jorquera-Ward Statement at [31]; Reid Statement, Attachment AR-9.

[160] Email from Applicant to Ms Jorquera-Reid dated 30 January 2024, attached to Applicant’s Form F2 Unfair Dismissal Application.

[161] Reid Statement, Attachment AR-9.

[162] Reid Statement at [47].

[163] Jorquera-Ward Statement at [32].

[164] Jorquera-Ward Statement at [32].

[165] Jorquera-Ward Statement at [34].

[166] Jorquera-Ward Statement at [35].

[167] Jorquera-Ward Statement at [36].

[168] Jorquera-Ward Statement at [36], Attachment CJW-8.

[169] Jorquera-Ward Statement, Attachment CJ-8.

[170] Reid Statement, Attachment AR-10.

[171] Applicant’s submissions at [26].

[172] Applicant’s submissions at [27].

[173] Jorquera-Ward Statement at [37].

[174] Medical certificate dated 7 February 2024 attached to Respondent’s Form F3.

[175] Jorquera-Ward Statement at [37].

[176] Reid Statement, Attachment AR-10.

[177] Reid Statement, Attachment AR-10.

[178] Jorquera-Ward Statement at [39], Attachment CJW-8.

[179] Jorquera-Ward Statement at [36], Attachment CJW-8.

[180] Jorquera-Ward Statement at [40], Attachment CJW-9.

[181] Jorquera-Ward Statement at [40], Attachment CJW-9.

[182] Jorquera-Ward Statement at [41].

[183] Reid Statement, Attachment AR-10.

[184] Jorquera-Ward Statement at [42], Attachment CJW-10.

[185] Jorquera-Ward Statement at [43], Attachment CJW-11.

[186] Applicant’s submissions at [30].

[187] Jorquera-Ward Statement at [44], Attachment CJW-12.

[188] Jorquera-Ward Statement, Attachment CJW-9.

[189] Jorquera-Ward Statement at [44].

[190] Jorquera-Ward Statement at [45].

[191] Transcript of Proceedings, 21 June 2024 at PN4904.

[192] Transcript of Proceedings, 21 June 2024 at PN5313.

[193] Transcript of Proceedings, 21 June 2024 at PN5318.

[194] Reid Statement at [59].

[195] Reid Statement at [60].

[196] Reid Statement at [61].

[197] Reid Statement at [61].

[198] Reid Statement at [61].

[199] Transcript of proceedings 20 June 2024, PN 2952.

[200] Transcript of proceedings 20 June 2024, PN 2955.

[201] Transcript of proceedings 20 June 2024, PN 2955.

[202] Wade Statement at [8].

[203] Wade Statement at [11].

[204] Wade Statement at [14].

[205] Wade Statement at [15].

[206] Transcript of proceedings 18 June 2024, PN 1284 - 1285.

[207] Transcript of proceedings 18 June 2024, PNs 1189 – 1191, PN 1221, PN 1223, PN 1232.

[208] Transcript of proceedings 18 June 2024, PN 1223.

[209] Transcript of proceedings 18 June 2024, PN 1196.

[210] Transcript of proceedings 18 June 2024, PN 1246.

[211] Reid Statement, Attachment AR-11.

[212] Reid Statement, Attachment AR-11.

[213] Respondent’s submissions at [15] – [18].

[214] Respondent’s closing submissions, 12 July 2024 at [13].

[215] Respondent’s submissions at [3].

[216] Jorquera-Ward Statement at [6].

[217] Statement of Allannah Reid at [7].

[218] Wade Statement at [5] and [8].

[219] Applicant’s submissions at [6].

[220] Applicant’s reply submissions, p. 2.

[221] Applicant’s Closing Statement dated 5 July 2024.

[222] Applicant’s reply submissions, p. 2.

[223] Untitled attachment to Applicant’s application at [44].

[224] Applicant’s Closing Statement dated 5 July 2024.

[225] Applicant’s submissions at [76].

[226] Applicant’s Statement at [86].

[227] Applicant’s Statement at [84].

[228] Applicant’s Statement at [88].

[229] Applicant’s Statement at [88].

[230] Submissions Attached to Applicant’s Form F2 Unfair Dismissal Application at [18]; Applicant’s submissions at [36] – [37].

[231] Applicant’s submissions, p.5.

[232] Reid Statement at [52].

[233] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

[234] Ibid.

[235] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.

[236] Wade Statement at [15].

[237] Transcript of proceedings 18 June 2024, PN 1284 - 1285.

[238] Wade Statement at [14].

[239] Wade Statement at [15].

[240] Crozier v Australian Industrial Relations Commission [2001] FCA 1031, [14].

[241] Edwards v Justice Giudice [1999] FCA 1836, [7].

[242] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

[243] Reid Statement at [13].

[244] Reid Statement at [13].

[245] Respondent’s Form F3.

[246] Transcript of proceedings, 20 June 2024, PN 3987.

[247] Transcript of proceedings, 17 June 2023, PN374.

[248] Reid Statement , Attachment AR1.

[249] Transcript of proceedings, 17 June 2023, PNs 375 – 378.

[250] Transcript of proceedings, 17 June 2023, PN 381.

[251] Transcript of proceedings, 17 June 2023, PN 387.

[252] Transcript of proceedings, 17 June 2023, PN 388.

[253] Reid Statement, Attachment AR-2.

[254] Reid Statement, Attachment AR-2.

[255] Transcript of proceedings, 21 June 2024 at PN5188.

[256] Jorquera-Ward Statement at [10].

[257] Transcript of proceedings, 20 June 2024, PNs 4017 – 4028.

[258] Submissions Attached to Applicant’s Form F2 application at [33].

[259] Submissions Attached to Applicant’s Form F2 application at [16]; Applicant’s submissions at [34]; Applicant’s Statement at [93].

[260] Submissions Attached to Applicant’s Form F2 application at [17]; Applicant’s submissions at [34]; Applicant’s Statement at [93].

[261] Applicant’s Statement at [9].

[262] Transcript of proceedings, 20 June 2024, PN4252.

[263] Transcript of proceedings, 20 June 2024, PN3687.

[264] Transcript of proceedings, 20 June 2024, PN3688.

[265] Transcript of proceedings, 20 June 2024, PN3692.

[266] Transcript of proceedings, 20 June 2024, PN3697.

[267] Applicant’s closing statement, 7 July 2024, p. 2.

[268] Exhibits A7 and A8.

[269] Applicant’s Statement at [37].

[270] Applicant’s Statement at [36].

[271] Applicant’s Statement at [38].

[272] Applicant’s Statement at [42].

[273] Transcript of proceedings, 20 June 2024, PN 3524.

[274] Reid Statement at [69].

[275] Transcript of Proceedings, 20 June 2024, PNs 3545 – 3547.

[276] Transcript of Proceedings, 20 June 2024, PN 3613.

[277] Transcript of Proceedings, 20 June 2024, PN 3615.

[278] Jorquera-Ward Statement [52].

[279] Transcript of Proceedings, 18 June 2024, PN 1616.

[280] Applicant’s submissions at [20].

[281] Transcript of Proceedings, 20 June 2024, PN 3632.

[282] Applicant’s Statement at [7].

[283] Applicant’s Statement at [6].

[284] Jorquera-Ward Statement at [53].

[285] Jorquera-Ward Statement at [10].

[286] Applicant’s reply submissions, p. 1.

[287] Transcript of proceedings, 20 June 2024, PN 4160.

[288] Applicant’s statement at [13].

[289] Transcript of proceedings, 17 June 2024, PN20. See also Exhibit A10.

[290] Applicant’s statement at [12].

[291] Transcript of proceedings, 17 June 2024, PN20;

[292] Applicant’s statement at [14]

[293] Applicant’s statement at [14]

[294] Applicant’s statement at [15].

[295] Applicant’s submissions at [9].

[296] Applicant’s Statement at [16].

[297] Applicant’s Statement at [15].

[298] Applicant’s Statement at [16]

[299] Applicant’s Statement at [20].

[300] Applicant’s Statement, Attachment A19.

[301] Applicant’s Statement at [21].

[302] Applicant’s Statement at [22].

[303] Transcript of proceedings dated 17 June 2024, PN54; Document A46 in Applicant’s Further Document List; Exhibits A17.

[304] Applicant’s Statement. Attachment A7.

[305] Applicant’s Statement at [23].

[306] Applicant’s Statement at [24].

[307] Jorquera-Ward Statement at [50].

[308] Transcript of proceedings, 17 June 2024, PN 266.

[309] Transcript of proceedings, 21 June 2024, Ps 4571 – 4754, PN 5473.

[310] Transcript of proceedings, 20 June 2024, PN 4160.

[311] Transcript of proceedings, 20 June 2024, PNs 4155 – 4160.

[312] Applicant’s Statement. Attachment A7.

[313] Transcript of proceedings, 20 June 2023, PNs 3135 – 3137.

[314] Applicant’s Statement at [25]

[315] Applicant’s Statement at [29]

[316] Applicant’s submissions at [10].

[317] Applicant’s Statement at [26]

[318] Applicant’s submissions at [20].

[319] Jorquera-Ward Statement at [51].

[320] Transcript of Proceedings, 21 June 2023, PN 47111

[321] Table ‘A 31’ Attached to Applicant’s Form F2 application.

[322] Table ‘A 31’ Attached to Applicant’s Form F2 application.

[323] Applicant’s Statement at [48].

[324] Applicant’s Statement at [48].

[325] Applicant’s Statement at [49].

[326] Applicant’s Statement at [49].

[327] Applicant’s Statement at [49].

[328] Jorquera-Ward Statement at [54].

[329] Jorquera-Ward Statement at [54].

[330] Reid Statement at [30].

[331] Reid Statement at [30].

[332] Applicant’s Statement at [63].

[333] Applicant’s Statement at [64].

[334] Applicant’s Statement at [66].

[335] Jorquera-Ward Statement at [55].

[336] Applicant’s Statement at [71].

[337] Jorquera-Ward Statement at [21].

[338] Transcript of proceedings, 18 June 2023, PN 943.

[339] Transcript of proceedings, 18 June 2023, PN 943, PN 945.

[340] Applicant’s Statement, Attachment A24.

[341] Transcript of proceedings, 21 June 2023, PN 4776.

[342] Transcript of proceedings, 17 June 2024, PN19; Applicant’s Statement, Attachment A11.

[343] Transcript of proceedings, 21 June 2023, PN 4777.

[344] Transcript of proceedings, 21 June 2023, PN 4762.

[345] Transcript of proceedings, 21 June 2023, PN 4783.

[346] Jorquera-Ward Statement, CJW-7; Transcript of proceedings, 21 June 2023, PN 4681.

[347] Transcript of proceedings, 21 June 2023, PN 4689.

[348] Transcript of proceedings, 21 June 2023, PN 4690.

[349] Transcript of proceedings, 21 June 2023, PN 4693.

[350] Transcript of proceedings, 21 June 2023, PN 4694.

[351] Transcript of proceedings, 21 June 2023, PN 4697.

[352] Transcript of proceedings, 17 June 2023, PN374.

[353] Applicant’s Statement at [59].

[354] Applicant’s Statement at [59].

[355] Transcript of proceedings, 21 June 2023, PN 4629.

[356] Transcript of proceedings, 21 June 2023, PN 4779.

[357] Transcript of proceedings, 21 June 2023, PN 4782.

[358] Transcript of proceedings, 17 June 2023, PNs 298 – 301.

[359] Transcript of proceedings, 17 June 2023, PN302.

[360] Transcript of proceedings, 17 June 2023, PNs 302 – 309.

[361] Transcript of proceedings, 17 June 2023, PN309.

[362] Transcript of proceedings, 17 June 2023, PN370.

[363] Transcript of proceedings, 17 June 2023, PNs 456 -458..

[364] Transcript of proceedings, 17 June 2023, PN 459.

[365] Transcript of proceedings, 17 June 2023, PN53.

[366] Transcript of proceedings, 17 June 2023, PN 460.

[367] Transcript of proceedings, 17 June 2023, PN 461.

[368] Transcript of proceedings, 17 June 2023, PN 462.

[369] Transcript of proceedings, 17 June 2023, PN 475.

[370] Transcript of proceedings, 17 June 2023, PNs 653 - 654; Applicant’s Statement, Attachment A6..

[371] Transcript of proceedings, 17 June 2023, PN 656.

[372] Transcript of proceedings, 17 June 2023, PN 658.

[373] Transcript of proceedings, 17 June 2023, PNs 659 - 660.

[374] Applicant’s reply submissions, p. 2.

[375] Applicant’s reply submissions, p. 2.

[376] Applicant’s reply submissions, p. 2.

[377] Submissions Attached to Applicant’s Form F2 Unfair Dismissal Application at [32].

[378] Applicant’s Statement at [46].

[379] Transcript of proceedings, 21 June 2023, PN5152.

[380] Transcript of proceedings, 21 June 2024, PN 5156.

[381] Transcript of proceedings, 21 June 2024, PN 5162.

[382] Transcript of proceedings, 21 June 2024, PN 5163.

[383] Table ‘A 31’ Attached to Applicant’s Form F2 application.

[384] Table ‘A 31’ Attached to Applicant’s Form F2 application.

[385] Jorquera-Ward Statement at [56].

[386] Applicant’s reply submissions, p. 2.

[387] Applicant’s reply submissions, p. 2.

[388] Applicant’s Submissions at [7].

[389] Applicant’s Statement at [9].

[390] Jorquera-Ward Statement at [48].

[391] Jorquera-Ward Statement at [48].

[392] Reid Statement at [64].

[393] Reid Statement at [65].

[394] Untitled attachment to Applicant’s application at [7], Applicant’s Submissions at [8].

[395] Applicant’s statement at [21].

[396] Transcript of proceedings, 17 June 2024, PN21.

[397] Transcript of proceedings, 17 June 2024, PN22; Applicant’s Statement, Attachment A16.

[398] Exhibit A9.

[399] Applicant’s statement at [11].

[400] Transcript of Proceedings, 18 June 2024, PN 2004.

[401] Transcript of Proceedings, 18 June 2024, PNs 2012 – 2014.

[402] Applicant’s Statement, Attachments A21, A22, A23.

[403] Transcript of proceedings, 17 June 2024, PN26.

[404] Applicant’s Statement at [11].

[405] Applicant’s Statement at [11].

[406] Jorquera-Ward Statement at [49].

[407] Transcript of proceedings, 21 June 2024, PNS 5173 - 5174

[408] Jorquera-Ward Statement at [49].

[409] Transcript of proceedings, 20 June 2024, PN 3447

[410] Jorquera-Ward Statement at [13].

[411] Jorquera-Ward Statement at [14]; Reid Statement at [15].

[412] Jorquera-Ward Statement at [17].

[413] Jorquera-Ward Statement at [18].

[414] Jorquera-Ward Statement at [24].

[415] Jorquera-Ward Statement at [26].

[416] Jorquera-Ward Statement at [27].

[417] Jorquera-Ward Statement at [28] - [29].

[418] Jorquera-Ward Statement at [29].

[419] Jorquera-Ward Statement at [45].

[420] [2001] FCA 1453; [2001] FCA 1718.

[421] Applicant’s reply submissions, p. 4.

[422] Applicant’s reply submissions, p. 5.

[423] Applicant’s reply submissions, p. 5.

[424] Applicant’s reply submissions, p. 5.

[425] Submissions Attached to Applicant’s Form F2 Unfair Dismissal Application at [23]; Applicant’s submissions at [69].

[426] Submissions Attached to Applicant’s Form F2 Unfair Dismissal Application at [24]; Applicant’s submissions at [70].

[427] Submissions Attached to Applicant’s Form F2 Unfair Dismissal Application at [25]; Applicant’s submissions at [71].

[428] Submissions Attached to Applicant’s Form F2 Unfair Dismissal Application at [26]; Applicant’s submissions at [72].

[429] Submissions Attached to Applicant’s Form F2 Unfair Dismissal Application at [26]; Applicant’s submissions at [73].

[430] Submissions Attached to Applicant’s Form F2 Unfair Dismissal Application at [43]; Applicant’s submissions at [89].

[431] [2017] FWCFB 5162.

[432] [2017] FWCFB 5162.

[433] [2006] AIRC 756.

[434] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

[435] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

[436] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

[437] Ibid.

[438] Respondent’s submissions at [19].

[439] Respondent’s submissions at [20].

[440] Submissions Attached to Applicant’s Form F2 Unfair Dismissal Application at [44].

[441] Email from Applicant to Ms Reid dated 20 February 2024; email from Applicant to Ms Reid dated 22 February 2024; Applicant’s Statement at [118].

[442] Email from Applicant to Ms Reid dated 22 February 2024.

[443] Applicant’ Closing Statement dated 5 July 2024.

[444] Applicant’s Statement at [83].

[445] Letter from Ms Jorquera-Ward to the Applicant dated 18 January 2024 attached to Respondent’s Form F3.

[446] Jorquera-Ward Statement at [30]; Reid Statement, Attachment AR-9.

[447] Transcript of proceedings, 20 June 2024 at PN4571.

[448] Jorquera-Ward Statement at [36].

[449] Transcript of proceedings, 20 June 2024, p 3353.

[450] Jorquera-Ward Statement at [36].

[451] Jorquera-Ward Statement at [36], Attachment CJW-8.

[452] Jorquera-Ward Statement, Attachment CJ-8.

[453] Applicant’s submissions at [26].

[454] Applicant’s submissions at [27].

[455] Transcript of proceedings, 18 June 2024, PN 982.

[456] Transcript of proceedings, 18 June 2024, PN 986.

[457] Respondent’s Form F3, Attachment P.

[458] Reid Statement, Attachment AR10.

[459] Transcript of proceedings, 18 June 2024, PN 997.

[460] Transcript of proceedings, 18 June 2024, PN 999.

[461] Transcript of proceedings, 18 June 2024, PN 1000.

[462] Transcript of proceedings, 18 June 2024, PNs 1000 - 1001.

[463] Transcript of proceedings, 18 June 2024, PN 1008.

[464] Transcript of proceedings, 18 June 2024, PN 1066, PN 1121, PN 1126.

[465] Email from Applicant to Ms Reid dated 20 February 2024; email from Applicant to Ms Reid dated 22 February 2024; Applicant’s Statement at [118].

[466] Transcript of proceedings, 18 June 2024, PN 1010 – 1013, PNs 1111 – 1112, PN 1115.

[467] Transcript of proceedings, 18 June 2024, PN 1011 - 1013.

[468] Transcript of proceedings, 18 June 2024, PN 997.

[469] Jorquera-Ward Statement at [34].

[470] Jorquera-Ward Statement, Attachment CJ-8.

[471] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

[472] RMIT v Asher (2010) 194 IR 1, 14-15.

[473] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

[474] Submissions Attached to Applicant’s Form F2 Unfair Dismissal Application at [44]; Applicant’s submissions at [33].

[475] Applicant’s reply submissions, p.3.

[476] Applicant’s reply submissions, p.4.

[477] Applicant’s Statement, Attachments A34 and A35.

[478] Submissions attached to Applicant’s Form F2 Unfair Dismissal Application at [6].

[479] Submissions attached to Applicant’s Form F2 Unfair Dismissal Application at [31].

[480] Submissions attached to Applicant’s Form F2 Unfair Dismissal Application at [6].

[481] Applicant’s Closing Statement.

[482] Email from Applicant to Ms Reid dated 20 February 2024 attached to Applicant’s Form F2 Unfair Dismissal Application.

[483] Email from Applicant to Ms Reid dated 20 February 2024 attached to Applicant’s Form F2 Unfair Dismissal Application.

[484] Applicant’s reply submissions, p.3.

[485] Applicant’s reply submissions, p. 2.

[486] Respondent’s Submissions at [23].

[487] Respondent’s Submissions at [25].

[488] Respondent’s submissions at [24].

[489] Transcript of proceedings, 20 June 2024, PN3268.

[490] Transcript of proceedings, 20 June 2024, PN3269.

[491] Respondent’s submissions at [25].

[492] Respondent’s Submissions at [22] – [23].

[493] Respondent’s submissions at [26].

[494] Respondent’s submissions at [27].

[495] Transcript of proceedings, 18 June 2024, PN 997.

[496] Jorquera-Ward Statement at [34].

[497] Jorquera-Ward Statement, Attachment CJ-8.

[498] Transcript of proceedings, 21 June 2024, PN 5178.

[499] Transcript of proceedings, 21 June 2024, PN 5533.

[500] Transcript of proceedings, 18 June 2024, PN 997.

[501] Transcript of proceedings, 20 June 2024, PNs3354 – 3355.

[502] Reid Statement, Attachment AR-9.

[503] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

[504] Respondent’s Form F3.

[505] Applicant’s reply submissions, p.4; Applicant’s Closing Statement, 7 July 2024, p. 2/

[506] Applicant’s reply submissions, p.4.

[507] Annetta v Ansett Australia Print S6824 (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000), [16].

[508] Applicant’s reply submissions, p.5.

[509] Respondent’s submissions at [33].

[510] Respondent’s submissions at [35].

[511] Submissions attached to Applicant’s Form F2 Unfair Dismissal Application at [7].

[512] Submissions attached to Applicant’s Form F2 Unfair Dismissal Application at [8].

[513] Submissions attached to Applicant’s Form F2 Unfair Dismissal Application at [8].

[514] Submissions attached to Applicant’s Form F2 Unfair Dismissal Application at [29].

[515] Submissions attached to Applicant’s Form F2 Unfair Dismissal Application at [35]; Applicant’s submissions at [22].

[516] Applicant’s submissions at [49].

[517] Submissions attached to Applicant’s Form F2 Unfair Dismissal Application at [36] – [38]; Applicant’s submissions at [81] – [84].

[518] Applicant’s submissions, p.5.

[519] Applicant’s submissions, p.5.

[520] [2015] FWCFB 478.

[521] Respondent’s submissions at [37].

[522] Respondent’s submissions at [37].

[523] Respondent’s submissions at [38].

[524] Submissions attached to Applicant’s Form F2 Unfair Dismissal Application at [7].

[525] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].

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