Chia v Talaria Asset Management Pty Ltd - [2024] FedCFamC2G 1441

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chia v Talaria Asset Management Pty Ltd [2024] FedCFamC2G 1441

File number(s): PEG 175 of 2023

Judgment of: JUDGE TAGLIERI

Date of judgment: 20 December 2024

Catchwords: INDUSTRIAL LAW – general protections claim – adverse action – alleged breach of employment contract – alleged breaches of Fair Work Act – whether employee exercised workplace rights – if exercise of workplace rights was a substantive and operative reason for dismissal – reverse onus satisfied by respondents – general protections claims not made out – breach of contract claim successful in part – whether obligation to give payslips satisfied if access available via payroll software – declarations made that there were some contraventions of the Fair Work Act by the first respondent

Legislation:
Acts Interpretation Act 1901 (Cth) s 28A

Electronic Transactions Act 1999 (Cth) ss 9(1)(d), 9(4)

Fair Work Act 2009 (Cth) ss 44, 117, 123(1)(b), 340, 341, 342, 361, 536, 539, 546

Fair Work Regulations 2009 (Cth) r 1.07

Cases cited:
Alam v National Australia Bank Limited (2021) 288 FCR 629

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243

Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046

Farquhar v Commonwealth of Australia [2023] FedCFamC2G 1100

Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677

Nair v Queensland University of Technology [2019] FCCA 1709

Division: Division 2 General Federal Law

Number of paragraphs: 121

Date of last submission/s: 1 October 2024

Date of hearing: 5-7 & 26 August 2024

Place: Melbourne & Hobart (by MS Teams)

Counsel for the Applicant: Mr Lake

Solicitor for the Applicant: Harmers Workplace Lawyers

Counsel for the Respondents: Mr Garozzo

Solicitor for the Respondents: Seyfarth Shaw Australia
ORDERS

PEG 175 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
JOY CHIA

Applicant

AND:
TALARIA ASSET MANAGEMENT PTY LTD

First Respondent

ELIZABETH NINNESS

Second Respondent

JAMIE MEAD

Third Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

20 DECEMBER 2024

THE COURT DECLARES THAT:
A.The First Respondent breached the employment agreement by implementing suspension of the Applicant's employment on 21 March 2023;
B.The First Respondent contravened s 536(1) of the Fair Work Act 2009 (Cth) by failing to provide a payslip to the Applicant within one working day of paying her in March 2023; and
C.The First Respondent contravened ss 44(1) and 117 of the Fair Work Act 2009 (Cth) by failing to pay the Applicant a minimum of one week pay in lieu of notice when her employment was terminated.

THE COURT ORDERS THAT:
1.BY CONSENT, the proceedings and all claims against the Third Respondent are dismissed.
2.The proceedings are otherwise adjourned to 15 January 2025 at 4:15PM.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE TAGLIERI

In these proceedings Ms Joy Chia (“the applicant”) seeks various remedies for contravention of the Fair Work Act 2009 (Cth) (“the Act”) and/or an employment agreement dated 16 June 2022 which existed between the applicant and Talaria Asset Management Pty Ltd (“the first respondent”) as her employer (“the employment agreement”).
The second respondent, Ms Ninness, was at relevant times the Chief Operating Officer of the first respondent. The third respondent, Mr Mead, was at relevant times the co-founder and Chief Executive Officer of the first respondent.
The overarching claim made by the applicant is that she was suspended and then dismissed from her employment as an analyst with the first respondent as a result of her exercising various workplace rights within the meaning of s 341 of the Act, meaning the respondents contravened ss 340 and 342. Associated with this overarching claim is an alternate claim that the suspension from employment was contrary to clause 8(b) of the employment agreement.
In addition to the overarching claims, the applicant alleges additional breaches of the Act in her Statement of Claim dated 21 August 2023 (“Statement of Claim”), but ultimately did not pursue the claim pleaded at [50].[1]
[1] Written submissions filed 2 August 2024 at [117] to [144].
In the Statement of Claim, the applicant identifies the relief sought in respect of the pleaded breaches and provides particulars as follows:
A. Damages for breach of contract in the amount of $3,288 (paragraph 49).
B. Alternatively to A, compensation of $3,288 for economic loss under subsection 545(1) of the FWA (paragraph 50).
C. Compensation of $1,827 for economic loss under subsection 117(2) of the FWA (paragraph 52)
D. Compensation of $2,627 for economic loss under subsection 90(2) and section 323 of the FWA (paragraph 53)
E. A declaration that the First, Second and Third Respondent breached the Employment Agreement by:
a. implementing the Suspension (paragraph 47); and
b. failing to pay Termination Entitlements and ordinary salary (paragraph 48 and 49)
F. A declaration that the First, Second and Third Respondent breached the FWA by:
a. failing to pay ordinary salary (paragraph 50);
b. failing to give the Applicant a payslip within one working day of March and June payment (paragraph 51);
c. failing to provide the minimum period of notice, or payment in lieu (paragraph 52); and
d. failing to pay leave entitlements (paragraph 53)
G. A declaration that the First, Second and Third Respondent contravened subsection 340(1) of the FWA, for each adverse action taken.
H. Compensation for economic loss under subsection 545(1) of the FWA (paragraph 46).
I. Compensation of $50,000 for non-economic loss under subsection 545(1) of the FWA (paragraph 46).
J. A pecuniary penalty for each breach of the FWA by the First, Second and Third Respondent under subsection 546(1) of the FWA.
K. An order that any pecuniary penalty be paid to the Applicant under paragraph 546(3)(c) of the FWA.
L. Interest under section 547 of the FWA.
By Defences dated 19 September 2023, each of the three respondents admit some material facts relied upon by the applicant in respect of her employment and conditions but dispute that she was entitled to five weeks paid annual leave. They plead that the five week entitlement only arises after completion of 12 months service, which the applicant did not complete.
The respondents also admit that various requests were made by the applicant to work from home or take paid personal leave but deny that her employment was suspended and later terminated because of those requests or because she had stated she would make or did make complaints about the second respondent.
In their Defences, the respondents allege that the applicant’s serious misconduct by making a fictitious manual entry in the first respondent’s electronic systems on 15 March 2023 was the reason for her suspension and dismissal.
The hearing before the Court proceeded on 5, 6 and 7 August 2024 in person in Melbourne, before closing submissions were heard on 26 August 2024 by way of MS Teams. At the start of the defended hearing, I made observations that the estimated hearing time and time allocated would not be sufficient. As a consequence and with the consent of the parties, the hearing was confined to determining whether the Court should make declarations in respect of the following:
E. A declaration that the First, Second and Third Respondent breached the Employment Agreement by:
a. implementing the Suspension (paragraph 47); and
b. failing to pay Termination Entitlements and ordinary salary (paragraph 48 and 49)
F. A declaration that the First, Second and Third Respondent breached the FWA by:
a. …
b. failing to give the Applicant a payslip within one working day of March and June payment (paragraph 51);
c. failing to provide the minimum period of notice, or payment in lieu (paragraph 52); and
d. …[2]
G. A declaration that the First, Second and Third Respondent contravened subsection 340(1) of the FWA, for each adverse action taken.
…
J. A pecuniary penalty for each breach of the FWA by the First, Second and Third Respondent under subsection 546(1) of the FWA.
[2] Noting that claims F.a. and F.d. were abandoned by way of the applicant’s written submissions dated 2 August 2024 at [128].
Following the hearing, both parties agreed that the Court should consider further written submissions in relation to the claim concerning contravention of s 536(1) of the Act, being the alleged contravention of the obligation to provide payslips.[3] The Court granted leave for this purpose on 1 October 2024 and the written submissions dated 12 September 2024 and 15 September 2024 were filed accordingly.
[3] Statement of Claim at [51].
ISSUES TO BE DETERMINED
The Court is required to make determinations in relation to the real reason or reasons the applicant's employment was suspended on 21 March 2023 and later terminated on 23 June 2023. Resolution of this issue will largely determine the adverse action claims contrary to s 340 of the Act and the breach of employment agreement claim.
Separately, the Court must decide if the additional breaches of the Act referred to at [4] above and pleaded in the Statement of Claim have been established.
MATERIALS RELIED UPON
The applicant sought to rely on two affidavits prepared and filed by her on 27 May 2024 and 16 July 2024. A schedule of objections to these affidavits was handed up by the respondents at the commencement of the hearing and marked as MFI-1. As a result, the following Orders were made by the Court on 5 August 2024:
1.Paragraphs [51], [133] and annexure JC57 are struck out from the affidavit of Joy Chia filed 27 May 2024, as the objections by the Respondent were conceded by the Applicant.
2.Paragraphs [6], [12] and [30], including the annexure JC67 are struck out from the reply affidavit of Joy Chia filed 16 July 2024, as the objections by the Respondent were conceded by the Applicant.
3.The objections to the second sentence of [30] of the affidavit of Joy Chia filed 27 May 2024 and the words “being friendly” in the last sentence of [30] of the affidavit of Joy Chia filed 27 May 2024 are allowed and are struck out.
AND THE COURT NOTES THAT
A. The parties agreed that all objections referred to in MFI-1 were not pressed and the Court would receive the relevant evidence and assign weight according to its discretion.
Subject to objections allowed and described in the Orders the affidavits of the applicant filed on 27 May 2024 and 16 July 2024 were marked as Exhibit A1 and Exhibit A2 respectively.[4] The affidavit of Ms Louise Hoar, a witness for the applicant who gave evidence at the hearing, was also read and marked as Exhibit A3.[5]
[4] Exhibit A2 being read subject to an amendment to [34] given orally at the hearing.
[5] Dated 22 April 2024.
The following documents were relied upon by the respondents and read into evidence:
(a)Exhibit R1: Emails exchanged between the applicant and Ms Ninness on 20 February 2023;
(b)Exhibit R2: Application filed by the applicant on 31 May 2022 in the Fair Work Division of the Federal Circuit and Family Court of Australia in PEG1/2022;
(c)Exhibit R3: Defence filed on 16 June 2022 in proceedings PEG1/2022;
(d)Exhibit R4: Claim under Fair Work Act, Form 2, as amended, in proceedings PEG14/2013;
(e)Exhibit R6: Affidavit of Elizabeth Ninness sworn 13 June 2024, subject to amendments made orally;
(f)Exhibit R7: Affidavit of Elizabeth Ninness sworn 23 July 2024;
(g)Exhibit R8: Affidavit of Jamie Mead affirmed 14 June 2024, subject to single amendment made orally; and
(h)Exhibit R9: Text messages exchanged between the applicant and Ms Ninness on 26 January 2023.
GENERAL LEGAL PRINCIPLES
Adverse action claims
The statutory provisions in Chapter 3 of the Act prohibit adverse action for certain protected reasons including, relevantly, dismissal or alteration of an applicant’s position because he or she exercises a workplace right.[6]
[6] Sections 340, 341 and 342(1) at item 1.
Section 361 of the Act provides a reverse onus in relation to adverse action, meaning that where it is alleged that s 340 has been contravened, it is presumed that the exercise of workplace rights are the reason for the adverse action unless the proven otherwise.
Several uncontroversial principles of law have been established in relation to the operation of the presumption referred to in s 361 of the Act and they provide binding authority in respect of the issues to be determined in this case.
These principles have been usefully summarised by the Federal Court of Australia in Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046 as follows (at [297]-[303]):
First, the question is one of fact: Barclay[7] at [41], [45], [101]; BHP[8] at [7].
Second, the question is why the adverse action was taken: Barclay at [5], [44]. The focus of the inquiry is the reason or reasons of the relevant decision-maker: Barclay at [101], [127], [140], [146]; BHP Coal at [7], [19], [85]. More particularly, the question is whether the alleged prohibited reason was a “substantial and operative” reason for taking the adverse action: Barclay at [56]-[59], [104], [127]; or an operative or immediate reason: Barclay at [140].
Third, the test does not involve any objective element: Barclay at [107], [121], [129]; BHP Coal at [9]. To speak of objectively obtained reasons risks the substitution by the court of its view, rather than making a finding of fact as to the true reasons of the decision-maker: Barclay at [121]; BHP Coal at [9].
Fourth, the inquiry is not concerned with mere causation, in the sense that it is not sufficient that there is factual or temporal connection between the relevant protected workplace rights and the adverse action: BHP Coal at [18]-[20]. Any such connection, however, may necessitate some consideration as to the true motivation or reasons of the decision-maker: BHP Coal at [22].
Fifth, the question must be answered having regard to all of the relevant facts and circumstances and the inferences available from them: Barclay at [45], [127]; BHP Coal at [7].
Sixth, direct testimony from the decision-maker as to why the adverse action was taken is capable of discharging the burden imposed by s 361: Barclay at [45], [71]; BHP Coal at [38]. However, declarations that the action was taken for an innocent reason may not discharge the onus if contrary inferences are available on the facts: Barclay at [54], [79], [141]. The reliability and weight to be given to such evidence must be assessed having regard to the overall facts and circumstances: Barclay at [127].
Seventh, it is not necessary for the decision-maker to establish that the reason for the adverse action was entirely disassociated from the relevant protected workplace right: Barclay at [62].
[7] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500.
[8] Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243.
Further, the Full Court of the Federal Court of Australia usefully set out a set of instructive observations in Alam v National Australia Bank Limited (2021) 288 FCR 629:
Several matters bearing upon the application of s 361 in relation to s 340 are settled:
(a) in order to attract the application of s 361, an applicant should allege with sufficient particularity both the action said to constitute “adverse action” and the particular reason or particular intent with which it is said the action was taken: Short v Ambulance Victoria [2015] FCAFC 55; (2015) 249 IR 217 (Dowsett, Bromberg and Murphy JJ) at [55];
(b) the party making the allegation that adverse action was taken “because” of a particular circumstance must establish the existence of that circumstance as an objective fact: Tattsbet Ltd v Morrow [2015] FCAFC 63; (2015) 233 FCR 46 at [119]. That is, it is for the applicant to establish all the elements of the alleged contravention other than the reasons of the respondent for taking the adverse action: Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 (ABCC v Hall) at [100];
(c) an employer takes adverse action in contravention of s 340 if a proscribed reason is a “substantial and operative” reason for the action or if the reasons for the action include the proscribed reason: Bendigo v Barclay at [104] (Gummow and Hayne JJ).
(d) the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision‑makers to give direct evidence of their reasons for taking the adverse action: Bendigo v Barclay at [43]‑[44];
(e) the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding: Bendigo v Barclay at [41], [45] (French CJ and Crennan J); at [101] (Gummow and Hayne JJ); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, (2014) 253 CLR 243 (CFMEU v BHP Coal) at [7] (French CJ and Kiefel J); Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, (2015) 238 FCR 273 (CFMEU v Anglo Coal) at [27]; ABCC v Hall at [19];
(f) while the evidence of the decision‑maker as to the reasons for the taking of the adverse action may, if accepted by the Court, satisfy the s 361 onus, such evidence is not a necessary pre‑condition: CFMEU v BHP Coal at [192]; Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215, 273 FCR 332 at [72];
(g) the Court’s rejection of the evidence of the decision‑maker as to the reasons for the adverse action will ordinarily be “a weighty consideration and often a determinative consideration” in the determination of whether the reason alleged by the applicant was a substantial and operative reason for the action (Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 302 IR 400 at [116]), but such a rejection does not relieve the Court from considering all the evidence probative of whether the reason asserted by the applicant has been negated: ibid; CFMEU v Anglo Gold at [27]; Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333, (2011) 193 FCR 526 at [272]. When there is evidence of a broad range of facts and circumstances, which are not dependent on acceptance of the decision‑maker’s evidence about his or her asserted reason for the dismissal, such evidence must be taken into account in assessing whether the reasons asserted by an applicant were a substantial and operative reason for the action; ibid at [113]; TechnologyOne Ltd v Roohizadegan [2021] FCAFC 137 at [105]‑[106];
(h) even if the reasons advanced by a respondent as the actual reasons for the decision are accepted, the absence of evidence that there were no additional reasons or that the actual reasons did not include the alleged proscribed reasons, may result in a failure to rebut the presumption: National Territory Education Union v Royal Melbourne Institute of Technology [2013] FCA 451, (2013) 234 IR 139 at [20]; PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, (2020) 274 FCR 225 at [154] (Snaden J);
(i) the decision‑maker’s knowledge of the circumstance asserted by an applicant to be the reason for the adverse action, and even its consideration, does not require a finding that the action was taken because of that circumstance: Bendigo v Barclay at [62]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218 at [80] (Jessup J); Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, (2014) 242 IR 1 at [777]. Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason: CFMEU v BHP Coal at [20], [87]‑[88]; Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76, (2015) 231 FCR 150 at [32], [47]‑[48] (Jessup J); and
(j) adverse action taken against a person because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition: CFMEU v BHP Coal; Endeavour Coal at [52] (Perram J).
UNCONTENTIOUS FINDINGS OF FACT

Much of the evidence before the Court is uncontroversial and not disputed. Counsel for the respondents provided a chronology of relevant events in closing submissions and I was invited to treat this as an aide memoire. It has been useful for that purpose.
Through cross and re-examination, the parties’ affidavit evidence in chief did not materially altar. However, the presentation of the applicant and second respondent as they gave evidence provided valuable insight in relation to their characters and how they likely contributed to the disputes that arose. This will be the subject of further comment in the reasoning that follows.
I find that the following events and communications between the parties occurred, based on their common or unchallenged evidence:
·On 4 July 2022 the applicant commenced employment with the first respondent.[9]
[9] Exhibit A1 at [3], annexure JC1; and Exhibit R8 at [19], annexure JM-2.
·On 8 January 2023 the applicant asked Rhys Cahill, the Chief Operating Officer at that time, if she could work from Perth from 24 January 2023 to 3 February 2023.[10] (“First Employment Inquiry” – Part 1)
[10] Exhibit A1 at [9], annexure JC2.
·On 9, 10, 11 and 13 January 2023 the applicant took paid personal leave.[11] (“First Paid Personal Leave”)
[11] Exhibit A1 at [13], annexures JC4, JC5 and JC6.
·On 10 January 2023 the applicant emailed Mr Mead stating she hoped to take time off over Chinese New Year but was instead requesting leave for the afternoon of 20 and 23 January 2023 and to then work from home for two weeks. Mr Mead encouraged the applicant to take her leave as originally intended.[12] (First Employment Inquiry – Part 2)
[12] Exhibit A1 at [10]-[12], annexure JC3.
·On 16 January 2023 Ms Ninness commenced employment as Chief Operating Officer at the first respondent.[13]
[13] Exhibit R6 at [9], which was amended orally at the hearing to correct the date from 14 January 2023 to 16 January 2023.
·On 17 January 2023 the applicant updated her enquiry about working from home to 24, 27 and 30 January 2023. Ms Ninness granted this request.[14]
[14] Exhibit A1 at [10]-[12], annexure JC3.
·Between 18 January and 28 February 2023, Ms Ninness identified issues with the applicant’s work.[15]
[15] Exhibit R6 at [30], annexure EN-4.
·On 27 and 30 January 2023 the applicant took paid personal leave.[16] (“Second Paid Personal Leave”)
[16] Exhibit A1 at [22], [25], [27], annexures JC7 and JC10.
·On 28 February 2023 Ms Ninness emailed Mr Mead raising concerns regarding the applicant’s work.[17] On the same day, a one-on-one meeting was held between Ms Ninness and the applicant regarding issues with her work. Ms Ninness suggested the applicant align her working from home days with Mr Estorque, another employee of the first respondent, and said she would implement a “maker-checker” process.[18]
[17] Exhibit R8 at [26], annexure JM-4.
[18] Exhibit A1 at [33]-[37], annexure JC13; and Exhibit R6 at [31]-[38], [150], annexures EN-5 and EN-6.
·On 1 March 2023 Ms Ninness emailed the applicant regarding aligning her working from home days with Mr Estorque and the expectations about the “maker-checker” process.[19]
[19] Exhibit A1 at [37], annexure JC13; and Exhibit R6 at [38], annexure EN-6.
·On 2 March 2023 a training session took place between Ms Ninness, Mr Estorque and the applicant.[20]
[20] Exhibit A1 at [38]-[40], annexure JC14; and Exhibit R6 at [39]-[40], [151], annexure EN-7.
·On 3 March 2023 the applicant emailed Mr Mead requesting a catch up.[21]
[21] Exhibit A1 at [45], annexure JC15; and Exhibit R8 at [27]-[29], annexure JM-5.
·On 6 March 2023 the applicant and Ms Ninness exchanged emails about working from home days and said she would try to match Mr Estorque’s working from home day each fortnight.[22] (“Second Employment Inquiry”)
[22] Exhibit A1 at [46], annexure JC16; and Exhibit R6 at [41]-[43], annexure EN-8.
·On 7 March 2023 the applicant and Mr Mead had the catch up meeting requested.[23] (“First Employment Complaint”)
[23] Exhibit A1 at [56]-[62]; and Exhibit R8 at [30]-[36].
·On 8 March 2023 the applicant made a request to work from home on 11, 13 and 14 March 2023.[24]
[24] Exhibit A1 at [64]-[65], annexure JC20; and Exhibit R6 at [162].
·On 15 March 2023 the applicant manually entered a transaction into the PMA system of $284,408.73 (“the manual entry”).[25]
[25] Exhibit A1 at [119]-[129]; and Exhibit R6 at [44]-[49], [76]-[79].
·On 21 March 2023 at a meeting with Ms Ninness and Mr Mead, the applicant was suspended from her employment.[26]
[26] Exhibit A1 at [66]-[70]; Exhibit R6 at [63]-[73]; and Exhibit R8 at [44]-[46].
·On 24 March 2023 Ms Ninness requested the applicant to attend a disciplinary meeting regarding the manual entry made on 15 March 2023.[27] The applicant sent a reply email alleging bullying and escalating her working from home concerns.[28] (“Second Employment Complaint”)
·On 27 March 2023 the applicant emailed Mr Mead alleging bullying.[29] (“Third Employment Complaint”)
·On 28 March 2023 Mr Mead rescheduled the disciplinary meeting to 29 March 2023 and sought details of the alleged bullying.[30]
·On 28 March 2023 the applicant emailed Mr Mead stating bullying allegations were raised in their meeting on 7 March 2023 and confirming she had escalated working from home arrangement concerns.[31]
·Between 28 and 29 March 2023 the applicant took paid personal leave.[32] (“Third Paid Personal Leave”)
·On 30 March 2023, the applicant emailed Mr Mead saying she would make a Fair Work application if a third-party investigator was not appointed regarding the bullying allegations.[33] (“FWC Application Proposal”)
·Between 4 April and 9 May 2023 the applicant took paid personal leave.[34] (“Fourth Paid Personal Leave”)
·On 22 May 2023 the applicant emailed Mr Mead querying why she was on unpaid leave.[35] (“Fourth Employment Inquiry”)
·On 26 May 2023 the applicant sent Mr Mead her WorkCover claim.[36] (“WorkCover Claim”)
·On 23 June 2023 a dismissal meeting was held and Ms Ninness, Mr Mead, the applicant and her support person, Ms Hoar, attended. At the end of the meeting, the applicant was dismissed.[37]
[27] Exhibit A1 at [75], annexure JC22; Exhibit R6 at [85], annexure EN-18; and Exhibit R8 at [50].
[28] Exhibit A1 at [76], annexure JC23; and Exhibit R6 at [86], annexure EN-18.
[29] Exhibit A1 at [77], annexure JC24; Exhibit R6 at [90], annexure EN_20; and Exhibit R8 at [51]-[52], annexure JM-7.
[30] Exhibit R8 at [54], annexure JM-9.
[31] Exhibit A1 at [80], annexure JC26; Exhibit R6 at [96], annexure EN-22; and Exhibit R8 at [55], annexure JM-9.
[32] Exhibit A1 at [79]-[82], annexures JC26 and JC27; Exhibit R6 at [93]-[97], annexures EN21, EN22 and EN23; and Exhibit R8 at [53]-[57], annexures JM-8 and JM-9.
[33] Exhibit A1 at [83], annexure JC28; Exhibit R6 at [99], annexure EN-23; and Exhibit R8 at [57], annexure JM-9.
[34] Exhibit A1 at [84]-[89], annexure JC31; Exhibit R6 at [104]-[106], annexure EN-26; and Exhibit R8 at [62], annexure JM-12.
[35] Exhibit A1 at [94], annexure JC39; Exhibit R6 at [116], annexure EN-33; and Exhibit R8 at [65].
[36] Exhibit A1 at [96], annexure JC41; Exhibit R6 at [118], annexure EN-35; and Exhibit R8 at [66].
[37] Exhibit A1 at [110]-116], annexure JC52; Exhibit R6 at [127]-[142], annexure EN-41; and Exhibit R8 at [74]-[88].
EVIDENCE AND FINDINGS ABOUT DISPUTED FACTS AND ISSUES
Before making findings about disputed facts relevant to the issues in this case, it is necessary to make some observations about the witnesses who gave evidence at the hearing.
The applicant gave evidence about the course of events leading to termination of her employment in a detailed and extensive manner. She was sensitive and defensive, rejecting any suggestion that her work was not of a good or satisfactory standard. Instead, she attributed any errors or omissions in the performance of her work to inadequate training or support in the tasks expected of her.
The applicant also demonstrated a high level of emotion or aggrievement about interactions and communications with Ms Ninness, demonstrative that her personal expectations about the conditions of employment relating to leave or working from home were not being met. She demonstrated sensitivity about issues that aggrieved her that was disproportionate to and in contrast with her firm and assertive evidence about factual matters.
Ms Ninness was economic, rigid and austere in giving her evidence and conveyed a pedantic and no-nonsense character. Her evidence overall also demonstrated high expectations about the applicant’s performance, which was not proportionate to the nature of concern conveyed by the communications from Mr Estorque that were before the Court.
As the summary of her evidence at [51] to [53] of these reasons demonstrates, towards the end of cross-examination Ms Ninness became somewhat obtuse and avoidant when answering questions and was reluctant to make concessions that were eventually made.
The applicant and Ms Ninness were by character and style of communication starkly incompatible, and it is unsurprising that this dispute arose.
I find that the applicant found Ms Ninness’ manner and communication style to be unpalatable, short or terse. Ms Ninness was likely economic, stern and business-like in discussions and interactions, but not aggressive or rude.
The contrast between Ms Hoar, Ms Ninness, Mr Mead and the applicant’s evidence was telling in respect of how the applicant has sought to portray Ms Ninness as the aggressor and a bully. In particular, only the applicant gave evidence that Ms Ninness shouted and yelled during the meetings on 28 February 2023 and 2 March 2023.[38] This seems unlikely given Ms Hoar’s description of the meeting on 23 June 2023 which aligns with the evidence of Ms Ninness and Mr Mead.[39] Ms Ninness’ presentation and manner of speech during cross-examination was also entirely in accordance with her description of how she communicated with the applicant at various times: that she was stern and frustrated but did not yell, shout or “storm out”.[40]
[38] Exhibit A1 at [34] and [38].
[39] Transcript dated 6 August 2024 at p 129.
[40] Exhibit R6 at [150] and [158], and transcript dated 6 August 2024 at pp 157, 159 and 160.
Mr Mead was a credible, impressive and thoughtful witness who made frank and appropriate concessions under cross-examination. I have no hesitation accepting the totality of his evidence and where it conflicts with that of the applicant, I prefer and accept Mr Mead’s evidence.
The adverse actions
The applicant relies on three actions that are said to constitute adverse action for the purposes of s 342 of the Act, being:
(a)Suspension of her employment;
(b)Termination of her employment; and
(c)Deduction of a week of annual leave from her leave entitlements.
The respondents concede that suspension and termination of employment fall within the meaning of adverse action under the Act.[41]
[41] Respondents’ written submissions filed 23 July 2024 at [55].
It was also conceded by the respondents that the applicant was not paid the equivalent of five weeks of annual leave at the conclusion of her employment and for the sake of the general protections claim, the removal of one week of annual leave could be taken to be adverse action. However, the respondents dispute that any of the adverse actions resulted from the applicant’s exercise of any workplace rights.[42]
[42] Respondents’ written submissions filed 23 July 2024 at [55] and [56].
Performance issues and concerns
I find that Ms Ninness began having concerns about the applicant’s performance as early as 18 January 2023.[43] The applicant did not seriously challenge the evidence of Ms Ninness that there were increasing concerns that led to the introduction of the “maker-checker” system and some additional training. The distinction made by the applicant in her reply affidavit at [16] and [17] is disingenuous.[44] Whether “accountability” or “performance” was mentioned in the meeting, reference to concern for lack of accountability implicitly related to concern about the nature and quality of the applicant’s work.
[43] Exhibit R6 at [29] and [30].
[44] Exhibit A2.
Exercise of workplace rights
By their written submissions, the respondents concede that the applicant exercised some of the pleaded workplace rights and accordingly I find that the applicant exercised the following rights:
(a)The First to Fourth Paid Personal Leave requests;[45]
(b)The Fourth Employment Enquiry;[46]
(c)The FWC Application Proposal;[47] and
(d)Making a WorkCover Claim.[48]
[45] Respondents’ written submissions filed 23 July 2024 at [49]
[46] Respondents’ written submissions filed 23 July 2024 at [48]
[47] Respondents’ written submissions filed 23 July 2024 at [51]
[48] Respondents’ written submissions filed 23 July 2024 at [51].
The respondents submit that the applicant has not established the other pleaded workplace rights because they involve enquiry or complaint not related to a pre-existing right and instead involve a general request or complaint about her employment.[49]
[49] Relying on Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677 at [150].
Employment Enquiries
I find that the First, Second and Third Employment Enquiries did not involve the exercise of a workplace right because I do not accept the submission of the applicant that clause 1.3 and item 4 of the employment agreement created a right to work from a location of her choice or request. Item 4 of the employment agreement merely identifies the location where the applicant was required to perform her work, being the first respondent’s head office in Melbourne.
Employment Complaints
The applicant alleges that there were three Employment Complaints, but effectively the Second and Third were made in close proximity and dealt in substance with allegations of bullying by Ms Ninness.[50] As the Second Employment Complaint was sent to Ms Ninness and related to her, she properly directed the applicant to raise the complaint with Mr Mead.[51] Accordingly, the Second and Third Complaints are addressed collectively below.
[50] Exhibit R6 at annexure EN-18 and Exhibit R8 at JM-7.
[51] Exhibit R6 at annexure EN-18.
I consider the evidence of the applicant and Mr Mead to be most relevant and persuasive regarding the necessary findings about whether the alleged Employment Complaints constitute the exercise of workplace rights.
In respect of the Employment Complaints, the applicant gave the following evidence under cross-examination:
(a)She maintained that during the meeting on 7 March 2023 she told Mr Mead that Ms Ninness had shouted “I’m not convinced” at her. Further, that she told Mr Mead that both Ms Ninness and Mr Estorque were ignoring her, she felt like her integrity was being questioned and was feeling anxious and stressed.[52] The applicant conceded she may not have used the words “stormed out” but insisted she told Mr Mead that Ms Ninness had walked out of the meeting on 28 February 2023;
(b)She denied that the reason she referred back to the First Employment Complaint when making the Third Employment Complaint was because of her knowledge of adverse action proceedings and awareness that a successful claim would require her to have exercised a workplace right prior the date of the alleged misconduct (the manual entry) on 15 March 2023;[53] and
(c)The reason she made the Second Employment Complaint to Ms Ninness, rather than Mr Mead, was because she’d been told during the suspension meeting on 21 March 2023 to direct all communications to Ms Ninness only.[54] She stated that making the Third Employment Complaint amounted to her following up the First Employment Complaint with Mr Mead.[55]
[52] Transcript dated 5 August 2024 at p 79, lines 15-45 and p 80, lines 1-22.
[53] Transcript dated 5 August 2024 at pp 98-99.
[54] Transcript dated 5 August 2024 at pp 99-100.
[55] Transcript dated 5 August 2024 at p 100.
Mr Mead’s evidence under cross-examination in relation to the Employment Complaints was, in summary, as follows:
(a)Regarding the First Employment Complaint, he agreed that at the meeting with the applicant on 7 March 2023 they discussed a breakdown in communication between herself, Ms Ninness and Mr Estorque and that she was having issues with Mr Estorque alleging some of her work was late and not up to scratch.[56] However, he firmly maintained that there had been no discussion of any concerns about Ms Ninness’ management of her, Ms Ninness shouting at her or “storming out” of their meeting. He also denied the applicant had told him she was feeling stressed at work or experiencing anxiousness;[57]
(b)He accepted that the issues raised by the applicant as outlined at subparagraph (a) above could amount to a “grievance” but firmly maintained he had not perceived them to be complaints;[58]
(c)In respect of the Third Employment Complaint, he maintained he did not know what the applicant’s email of 27 March 2023 related to but he was very concerned by it. He conceded that immediately contacting Ms Ninness, the subject of that complaint, to reassure her of his support could be perceived as an inappropriate way to handle a complaint but maintained this was a gesture of support and not an attempt to “protect” Ms Ninness;[59]
(d)He conceded that when he initially told Ms Ninness about the Third Employment Complaint, it was not as part of an investigation but denied it was a breach of the first respondent’s bullying policy;[60] and
(e)He denied that he had been dismissive of the Third Employment Complaint, maintaining it did not amount to a complaint in the absence of any detail.[61]
[56] Transcript of 7 August 2024 at p 241.
[57] Transcript of 7 August 2024 at p 242.
[58] Transcript dated 7 August 2024 at pp 242-242, lines 41-45 and 1-15.
[59] Transcript of 7 August 2024 at pp 249-250, lines 40-45 and lines 1-16.
[60] Transcript of 7 August 2024 at p 251, lines 5-28.
[61] Transcript dated 7 August 2024 at p 253, lines 33-43.
Concerning the First Employment Complaint, I prefer the evidence of Mr Mead to that of the applicant in relation to the meeting on 7 March 2023. I find it more likely that the applicant raised difficulties she felt she had with interpersonal interactions in the workplace and the expectations placed on her, but I do not accept that she conveyed the discussion to be a “complaint” about Ms Ninness, nor can it be taken to have been such.[62]
[62] Contrary to that submitted by the applicant at [53] of applicant’s written submissions 2 August 2024
Even if I were to accept the applicant’s evidence at its highest, that she did make a complaint about Ms Ninness to Mr Mead on 7 March 2023, I am satisfied that it was proper for Mr Mead to discuss the complaint with Ms Ninness as the person responsible for managing the applicant, despite his concession during cross-examination.[63] What Mr Mead did was also within the terms of the first respondent’s policy relating to bullying, particularly part 9.1 and 9.2.[64]
[63] Transcript dated 7 August 2024 at p 249 at lines 44-45.
[64] Exhibit R6 at annexure EN-19 – “Equal Employment Opportunity, Discrimination, Bullying & Harassment Policy”.
It was reasonable for Mr Mead to seek to resolve the applicant’s difficulties in the workplace informally first, which is what it appears he sought to do.
The respondents have not admitted the Second and Third Employment Complaints. In respect of those and based on the unchallenged evidence of Mr Mead, I find that he sought further detail about the allegations mentioned by the applicant in her emails of 27, 28 and 30 March 2023,[65] but, accepting Mr Mead’s evidence, that detail was never forthcoming.[66]
[65] Exhibit A1 at annexures JC23 (Second Employment Complaint), JC24 (Third Employment Complaint), JC25 (email of 28 March 2023) and JC28 (email of 30 March 2023, being the FWC Application Proposal).
[66] Exhibit R8 at [52]-[57], annexures JM-7, JM-8 and JM-9.

In order to exercise a workplace right involving a bullying or harassment complaint, it was necessary for the applicant to sufficiently identify the conduct alleged to amount to bullying or harassment, which I find she failed to do. The Second and Third Employment Complaints allege or label unidentified conduct to be “bullying” and in such circumstances, the process contemplated by part 9 of the first respondent’s bullying policy could not be enacted.[67] Effectively, the applicant foreshadowed allegations of bullying or harassment by her emails, which if particularised may have constituted the exercise of a right to make a complaint pursuant to part 9.1 of the bullying policy, but she did not in fact exercise such a workplace right on either 24 or 27 March 2023.
[67] Exhibit R8 at [51]-[61], annexures JM-7, JM-8, JM-9, JM-10 and JM-11.
Evidence and findings about the manual entry in PMA on 15 March 2023
The applicant firmly maintained during cross-examination that when she made the manual entry of $284,408.73 into PMA, the first respondent’s account management system, on 15 March 2023, it was according to general instructions given to her by Mr Estorque.[68] Further, that the manual entry accurately identified that the total sum entered was not fully accounted for and she had initiated an enquiry about the unexplained amount.[69] Accordingly, the applicant strongly maintained that her conduct was not misleading or false and did not amount to serious misconduct.[70]
[68] Transcript dated 6 August 2024, p 108 at lines 37-39, p 109 at lines 8-9, p 111 at lines 2-4.
[69] Transcript dated 6 August 2024 at p 112.
[70] Transcript dated 6 August 2024 at p 114.
Throughout her affidavits, the applicant conveys that the standard of her work and performance of her duties was entirely acceptable and deflected the concerns raised by Ms Ninness and Mr Estorque. However, when cross-examined she made limited concession that on one occasion she could have had better attention to detail.[71] This evidence contradicts statements made during her meeting with Ms Ninness on 28 February 2023 that she received limited or no training in respect of certain tasks. This contradiction contributes to my preference of Ms Ninness’ evidence concerning the applicant’s standard of work and performance of duties up until 15 March 2023.
[71] Transcript dated 5 August at pp 57 and 63.
Under cross-examination, Ms Ninness maintained that the manual entry made by the applicant on 15 March 2023 was false and created serious risk for the first respondent because it conveyed that the amount was in the account when in fact it was not. Ms Ninness’ evidence was that:
(a)She disagreed that Mr Estorque’s email of 20 March 2023 did not show any hint of urgency or risk to the business by the manual entry by the applicant;[72]
[72] Transcript dated 6 August 2024 p 178, lines 4-29.
(b)Mr Estorque’s communication highlighted that the manual entry made by the applicant did not relate to an actual transaction;[73]
[73] Transcript dated 6 August 2024 p 178, lines 31-34.
(c)She agreed that she suspended the applicant’s employment on 21 March 2023 but denied she was aggressive when inviting the applicant to meet with her or during the meeting;[74]
[74] Transcript dated 6 August 2024 p 178, lines 40-46.
(d)She denied that she accused the applicant of falsifying transactions;[75]
[75] Transcript dated 6 August 2024 p 179, lines 1-2.
(e)She denied stating that there needed to be an investigation about “altering records” or “falsifying transactions”;[76]
[76] Transcript dated 6 August 2024 p 179, lines 26 and 28.
(f)In the context of a question the applicant asked, she agreed she had said that “from a regulatory point of view, a transaction that didn’t align to a true transaction could be deemed fraudulent” but denied it had been in an accusatory way;[77]
[77] Transcript dated 6 August 2024 p 179, lines 30-35.
(g)She maintained that the allegations relating to the applicant’s suspension had been put to her in writing before directing her to attend a meeting, initially stating it was by email of 27 March 2023 before stating it was by email dated 24 March 2023;[78]
[78] Transcript dated 6 August 2024 pp 180-181.
(h)She disagreed the respondents had not put the applicant on notice of anything that she was required to meaningfully respond to;[79]
[79] Transcript dated 6 August 2024 p 182, lines 42-45.
(i)She denied she wanted to terminate the applicant’s employment because the applicant had complained about her;[80]
[80] Transcript dated 6 August 2024 p 183, lines 22-23.
(j)She disagreed that:
(i)She wanted to terminate the applicant’s employment because she made work life more difficult when she was on periods of personal leave and annual leave in Perth;[81] and
[81] Transcript dated 6 August 2024 at p 183, lines 25-27.
(ii)The real reasons for suspending the applicant were due to her leave requests and the manual transaction was seized upon to suspend her;[82]
[82] Transcript dated 6 August 2024 at p 183, lines 29-31.
(k)She agreed she had asked a series of six questions of Mr Estorque as part of instructions to him to investigate the manual entry and he replied to one by stating that the manual transaction did not affect the actual cash position and that creating transactions in PMA would “only affect our reporting valuations and no instructions come out of PMA”;[83]
[83] Transcript dated 6 August 2024 at p 186, lines 1-16.
(l)She agreed Mr Estorque had cancelled the transaction but disagreed that there was no adverse consequence for the first respondent;[84]
[84] Transcript dated 6 August 2024 at p 186, lines 26-32.
(m)The manual entry distorted both internal and external reporting relating to the management of the funds, legal and regulatory obligations and had potential to have impacts;[85]
[85] Transcript dated 6 August 2024 at p 186, lines 26-32.
(n)From a regulatory perspective, the first respondent had obligations to have true and correct records;[86]
[86] Transcript dated 6 August 2024 at p 186, lines 44-45.
(o)She maintained that if the manual entry had not been cancelled by Mr Estorque, the records would not be correct going forward;[87]
[87] Transcript dated 6 August 2024 at p 187, lines 4-9.
(p)With some reluctance and avoidance of the question, she conceded that the first respondent was not in breach of its cash threshold for the relevant day despite the manual entry;[88]
[88] Transcript dated 6 August 2024 at p 187, lines 1-15.
(q)She did not dispute that there had been no regulatory action or enquiry but said she had disclosed the manual entry to the auditors;[89]
[89] Transcript dated 6 August 2024 at p 187, lines 17-18.
(r)She agreed there was no report to the Australian Securities and Investments Commission (“ASIC”) about the manual entry;[90]
(s)She could not say whether Mr Estorque was aware of the manual entry when he reviewed the checklist implemented to oversee the applicant’s work for reconciliations on 15 March 2023 but said he had noted that the reconciliation was incomplete;[91]
(t)She disagreed that the notes made by the applicant in the checklist “flagged” that the amount was unexplained and that this had been drawn to Mr Estorque’s attention.[92] In particular, she stated:
What that means is there’s an un-reconciled amount on the accounts. It doesn’t mean that she has entered a transaction into the system to square out the books. Because if – if you’re squaring out the books, you’re forcing a reconciliation, which is then not a proper reconciliation.
(u)She would not concede that based on what was now known, the unexplained inflow of $284,408.73 aligned with actual transactions that had occurred at around that time in the custodian’s account. She continued to maintain that reconciliations need to be done on a daily basis and records need to be true and correct, as does the reporting at the time;[93]
(v)She did not explain how the manual entry constituted a breach of the first respondent’s investment mandates or product disclosure statement but maintained it was an inaccurate recording and reconciliation and presented a serious risk to the first respondent;[94]
(w)She maintained that the manual entry was not flagged in the PMA system but agreed it was noted in the checklist prepared by the applicant;[95] and
(x)She effectively conceded that the first respondent’s procedures document did not detail the end-to-end process or instruction for reconciliations relating to the manual entry and that there was no specific non-compliance or breach of the procedures document by the applicant when she made that manual entry.[96]
[90] Transcript dated 6 August 2024 at p 187, line 20.
[91] Transcript dated 7 August 2024 at p 194, lines 1-25.
[92] Transcript dated 7 August 2024 at p 194, lines 34-39.
[93] Transcript dated 7 August 2024 at pp 196-197
[94] Transcript dated 7 August 2024 at pp 198-200.
[95] Transcript dated 7 August 2024 at p 201, lines 1-5
[96] Transcript dated 7 August 2024 at pp 207-211.
At the conclusion of cross-examination of Ms Ninness, I raised with both counsel concern about a lacuna in the evidence about a topic I considered relevant to the determination to be made. I requested that it be the subject of re-examination. The following evidence was then given by Ms Ninness:[97]
MR GAROZZO: Ms Ninness, do you recall that there has been some evidence about the requirement on Ms Chia to perform reconciliations by a particular deadline?‑‑‑Yes.
In circumstances where, as we’ve been speaking about, she didn’t have – there weren’t sufficient details that you would expect her to have before entering a particular transaction into the system, what was she supposed to do if the deadline passed and she didn’t have that information?‑‑‑Escalate and an appropriate discussion with initially Peter and then myself to derive next steps.
Escalate to? Escalate to who?‑‑‑Escalate to a discussion to Peter to see appropriate next steps, and then if it’s significant enough, then to myself.
And what would happen if – would it be the case on occasion that – well, what would happen if, by the time the deadline passed, even if it had been escalated, the information hadn’t come through, the investigations hadn’t completed? What would happen then?‑‑‑You would not manually enter into – information into the system without specific details in relation to a transaction. We would have to make an assessment of whether or not the matter was material and the next steps to be taken.
HER HONOUR: Doesn’t that mean that there’s not going to be a reconciliation by the time you require it to be reconciled?‑‑‑Yes, correct.
[Emphasis added]
[97] Transcript dated 7 August 2024 at p 230, lines 15-36.
In re-examination, Ms Ninness reiterated that a training manual in place during the applicant’s employment did not suggest or instruct employees to enter non-existent transactions as a means of reconciling accounts, nor that transactions should be entered without confirmation of details relating to them.[98] She also maintained that by making the manual entry, the applicant had caused a serious risk to the first respondent’s reputation and viability because of the failure to comply with regulatory and legal obligations.[99]
[98] Transcript dated 7 August 2024 at p 226, lines 13-28.
[99] Transcript dated 7 August 2024 at pp 232-233.
I find that when the applicant made the manual entry on 15 March 2023:
·She did so according to her honest understanding of what was required of her when reconciling the PMA account that day based on instruction previously given to her;
·No specific instruction was given about what she should do to complete the reconciliation on time if information required to complete it was unavailable;
·She documented the unexplained amount which she entered;
·She noted enquiries initiated by her to fully explain the manual entry; and
·She made assumptions about some components of the total value of the manual entry, based on her experience.
None of Ms Ninness or Mr Mead’s evidence rebuts the applicant’s evidence which I have accepted in making the above findings.
Mr Estorque provided further information about the manual entry in the following days and did not describe it as false or fictitious.[100] He also advised Ms Ninness that it only affected the internal records of the business and that he had immediately deleted the entry.[101]
[100] Exhibit R6 at [75]-[79], annexures EN-12, EN-13 and EN-15.
[101] Exhibit R6, annexure EN-14.
Despite this, the contemporaneous communications between Ms Ninness and Mr Estorque, and Ms Ninness and the applicant between 15 and 21 March 2023 demonstrate that Ms Ninness was gravely concerned about the consequences for the first respondent of the manual entry having been made. I accept that she believed this to be a serious risk for the first respondent, this being consistent with the observations about her character at [27] of these reasons.
THE REASON(S) FOR ADVERSE ACTIONS
The relevant adverse actions in this case are those described above at [33].
I have found that Ms Ninness had genuine concerns about the quality of the applicant’s work by late January 2023 and subsequently implemented training and supervision of her performance by Mr Estorque. The fact that the checklist system was put in place in late February 2023 and how it operated demonstrates that both Mr Estorque and Ms Ninness had sufficient concern about the applicant’s performance to warrant additional training and supervision of her duties.
I find that the applicant exercised workplace rights by making the First and Second Paid Personal Leave requests due to personal illness. In my view, the exchanges annexed to Exhibit A1 demonstrate that the requests were reasonably dealt with and the communications between the applicant and Ms Ninness were brief, polite and the personal leave paid.[102]
[102] Exhibit A1, annexures JC5, JC7 and JC8.
The First and Second Paid Personal Leave requests did not cause any conflict or controversy. Rather the messages exchanged demonstrate that Mr Mead and Ms Ninness accepted the applicant was unwell, were sympathetic and in, Ms Ninness’ case, on one occasion had to balance the work demands of a small team, which it appears the applicant was prepared to accommodate.[103]
[103] Exhibit A1, annexures JC4 to JC10; and Exhibit R9.
Based on the applicant’s evidence and the evidence of Ms Ninness that she implemented training for the applicant, I am satisfied that the applicant had not been fully instructed or directed about the duties she was expected to perform and how to perform them. In particular, the impossibility of completing the reconciliation task on time each day was conceded by Ms Ninness.[104]
[104] See evidence at [43] of these reasons.
The discussion at the meeting with Mr Mead on 7 March 2023 did not involve a complaint for the reasons given at [44] but regardless I find it was appropriately managed by him.
For the following reasons, I am satisfied that the suspension was directly in response to the report by Mr Estorque on 16 March 2023 and Ms Ninness’ belief that the applicant had made a false manual entry and her perception of the risk to the first respondent:
(a)On 16 March 2023, in the context of performance issues since at least January 2023, Ms Ninness had formed an honest view that the manual entry was false when made, a perhaps hasty and incomplete assessment arrived at before any investigation was carried out, but consistent with her character and traits referred to at [27] of these reasons;
(b)At the suspension meeting on 21 March 2023, Ms Ninness likely conveyed an accusation that the applicant had made a false entry into the PMA system because that was her understanding of the effect of the manual entry after discussion with Mr Estorque on 16 March 2023;[105]
(c)Reflecting her view of the seriousness of the risk, Ms Ninness informed the applicant that making the manual entry may be fraudulent or illegal;[106] and
(d)The applicant took the statement at subparagraph (c) as an allegation of fraud and made an enquiry for the particular allegations against her to be put in writing.[107]
[105] Exhibit R6 at [45]-[47].
[106] Exhibit R6 at [70].
[107] Exhibit A1 at [68].
I do not accept the inference invited by the applicant’s case that Ms Ninness fabricated an untruthful narrative about the significance of the manual entry to provide a reason for the suspension, as I have found that Ms Ninness genuinely but possibly mistakenly believed that the manual entry posed a serious risk to the first respondent.
I am satisfied that the manual entry does not appear per se to have been a deliberate or false entry which created serious risk to the first respondent, for the following reasons, but I note this finding is made with the benefit of hindsight:
(a)In the circumstances that arose on 15 March 2023, it was impossible for the applicant to make the PMA system reconcile with the custodian account on time as was expected of her because her capacity to do so depended on receipt of information not available that day;
(b)There is no evidence before the Court that the applicant had received any specific instructions or training about how to perform the reconciliation if there was insufficient information to account for the balance shown on the custodian account and in circumstances where she had been given an express direction to complete the reconciliation by a particular time each day with the custodian account being the “source of truth”; and
(c)Because Ms Ninness eventually conceded that no actual financial risk eventuated and despite the claims of risk due to failure to comply with regulatory requirements, other than referring to a need for accuracy of records there is no evidence of how the manual entry constituted a material risk to the first respondent.
In making the finding about the applicant’s performance being addressed by training and supervision, it was submitted that because there was no evidence of performance concerns prior to those raised by Ms Ninness,[108] I ought not accept that the concerns were genuine. However, the applicant had only been employed for a relatively short time under the previous Chief Operating Officer’s management and likely only began the reconciliation tasks in the latter part of 2022.[109] Accordingly, and because I find that Ms Ninness was more particular and thorough in setting expected standards than her predecessor, it is unsurprising that there is no evidence of concern about the applicant’s performance of duties until January 2023.
[108] Exhibit A6 at annexure EN-4.
[109] Mr Cahill was the Chief Operating Officer at the first respondent until Ms Ninness commenced employment on 16 January 2024 and replaced him (Exhibit R6 at [9]). Ms Ninness did not dispute that the applicant commenced reconciliations in September 2022 (transcript dated 6 August 2024 at pp 165-166).
After implementing the suspension, I find that by email dated 24 March 2023 Ms Ninness called a disciplinary meeting for 28 March 2023, which did not take place at that time.
The Third Paid Personal Leave request, the Fourth Paid Personal Leave request,[110] and the Fourth Employment Inquiry were made after the suspension and before termination of employment. The relevant communications between Ms Ninness and the applicant, and Mr Mead and the applicant are uncontroversial and demonstrate that the respondents addressed the requests in a professional and courteous manner. By the time the requests were made, the suspension had already been put in place for the reasons I have found at [64] and so the Third and Fourth Paid Personal Leave requests logically and rationally could not have contributed to the suspension.
[110] Constituted by making enquiry on 22 May 2023 about why she was on unpaid leave.

While theoretically the requests may have played a part in the decision to dismiss the applicant, for the reasons that follow, I am not satisfied that they did.
The alleged Employment “Complaints” made by the applicant on 24 and 27 March 2023 occurred after she made the manual entry and following her suspension on 21 March 2023. I am not persuaded that there is a connection between those “Complaints” or threats to complain and the suspension on 21 March 2023 because Ms Ninness and in turn Mr Mead already were treating the applicant’s conduct in making the manual entry as serious and as creating risk for the first respondent.
The foreshadowed bullying complaints on 24 and 27 March 2023 about Ms Ninness were raised by the applicant prior to her dismissal at the disciplinary meeting on 23 June 2023 but were not considered or determined because the applicant did not provide sufficient particulars or information about what she claimed was bullying.
I do not accept that the Second and Third Employment Complaints were a contributing factor to the disciplinary meeting and dismissal from employment. This is because Ms Ninness had already formed a view that the manual entry was false and all her actions thereafter were directed to investigating and understanding the extent of risk posed to the first respondent. This included initially scheduling the disciplinary meeting for 28 March 2023 to receive the applicant’s response to why she made the manual entry without all necessary information to confirm the entire amount, and whether she accepted that she ought not have made the manual entry when she did.
In March 2023, as evidenced by the alternate letters prepared by Ms Ninness and her firm evidence in cross-examination, I am satisfied that Ms Ninness and Mr Mead had an open mind about what, if any, consequence should follow the making the manual entry by the applicant.[111]
[111] Exhibit R6 at [81], annexures EN-15 and EN-16.
The disciplinary meeting did not occur on 28 March 2023 due to the applicant providing evidence that she was not fit to attend, being on leave without pay or otherwise having made a workers compensation claim.[112] Instead, the disciplinary meeting occurred on 23 June 2023 and the applicant remained employed in the meantime.
[112] Exhibit R8 at [51]-[58], annexures JM-7, JM-8 and JM-9.
Ms Ninness and Ms Hoar, the applicant’s support person, took notes at the disciplinary meeting. They are produced as annexures to their affidavits.[113] The notes of Ms Ninness and Ms Hoar are similar, but Ms Hoar’s are more detailed, which is unsurprising because she had less of a role in speaking at the meeting and likely more time and attention for noting what was said and by whom. I consider Ms Hoar’s notes are likely more accurate and complete for those reasons, except that by her oral evidence she agreed Mr Mead stated there was nothing further to “discuss” rather than “conclude”.[114] No submission was made about whether this was of any import.
[113] Exhibit R6 at annexure EN-41 and Exhibit A3 at annexure LH1.
[114] Transcript dated 6 August 2024 at p 129, lines 42-43.
Based on the discussions at the meeting as evidenced by Ms Hoar’s notes and the unchallenged evidence of Ms Ninness and Mr Mead about their discussion in private after having heard the applicant’s responses,[115] I find that:
(a)They remained of the belief that the manual entry was false and created a serious risk because the first respondent’s PMA records were not accurate at the time the entry was made, creating a regulatory and compliance risk;
(b)They were dissatisfied with the applicant’s failure to appreciate that when she made the manual entry, she had not been able to confirm or verify the entire amount she entered into the PMA system; and
(c)They considered it unacceptable that the applicant had deflected ultimate responsibility for reconciliations to Mr Estorque.
[115] Exhibit R6 at [134]-[135] and Exhibit R8 at [78]-[80].
On the basis of the findings above at [77], I am satisfied that the applicant’s employment was terminated at the end of the disciplinary meeting on 23 June 2023 because Ms Ninness and Mr Mead, informed by Ms Ninness’ views, jointly and likely considered that the applicant posed a serious risk to the first respondent because she did not accept responsibility for making the manual entry when she did not have information confirming the entire amount.
The applicant also relied on the exercise of workplace rights by making the FWC Application Proposal and WorkCover Claim. While I am satisfied that these constitute the exercise of workplace rights, they were each exercised after the suspension and therefore logically could not have contributed to it.
The exercise of rights referred to above theoretically may have contributed in some way to the dismissal, but I am not persuaded the did so because:
(a)They were dealt with by the respondents in a businesslike and professional manner and did not show a motive that they no longer wanted to employ the applicant or any evidence connecting those actions and the dismissal; and
(b)I have found that the overwhelming, compelling and sole reasons for the dismissal were those at [77] and [78] of these reasons.
Reason(s) for deducting one week of leave
There was no dispute between the parties that clause 7.1 of the employment agreement was relevant in relation to annual leave entitlements. It states as follows:
7.1 Your entitlement
(a) You are entitled to five weeks paid annual leave for every 12 months worked and personal/carer's leave, compassionate leave, parental leave and community service leave in accordance with applicable legislation (currently, the National Employment Standards).
(b) For the purposes of unused leave calculations and all associated entitlements the maximum leave in any one financial year is four weeks.
(c) You will be entitled to long service leave in accordance with applicable legislation in the jurisdiction specified at Item 9.
Ms Ninness gave the following evidence about the “fifth week” of leave and deduction of such from the applicant:
(a)She conceded that a week of leave had been deducted from the applicant following a leave audit and agreed that the first written communication about that audit occurred on 27 March 2023 after an initial verbal conversation with the external payroll providers in February 2023;[116]
(b)She denied the leave audit arose from a desire to remove leave from the applicant or as a response to the applicant making a complaint about her on 24 March 2023;[117]
(c)The scope of the audit was all employees of the first respondent, not solely the applicant, and arose because of an inconsistent approach in how the fifth week of leave was managed. She agreed that the only evidence that the audit included other employees was that given by her orally and in her affidavit;[118]
(d)The applicant’s employment agreement and the sections relating to her leave entitlement had not varied during the course of her employment;[119]
(e)She maintained that the entitlement to a fifth week of leave only arose after an employee had been employed for 12 months and had already taken four weeks of leave but conceded the employment agreement did not describe it as such;[120]
(f)The applicant had not been told about the leave audit because it was “not part of her role” and agreed she would have been made aware that the fifth week was removed sometime between her suspension and termination;[121]
(g)The removal of the leave was not due to complaints or inquiries the applicant made, or leave she had already taken;[122] and
(h)She agreed the applicant’s payslip for June 2023 showed that 40 hours of “extra leave” had been removed, when compared to payslips from April and May.[123]
[116] Transcript dated 7 August 2024 at p 219.
[117] Transcript dated 7 August 2024 at p 220.
[118] Transcript dated 7 August 2024 at pp 220-221.
[119] Transcript dated 7 August 2024 at p 221.
[120] Transcript dated 7 August 2024 at pp 221-222.
[121] Transcript dated 7 August 2024 at p 222.
[122] Transcript dated 7 August 2024 at p 222.
[123] Transcript dated 7 August 2024 at p 224.
I accept the evidence of Ms Ninness that there was a wider audit of leave entitlements because the instructions and communication with the external payroll provider were general and not related to a particular employee.[124] The conduct of the audit of all leave is also consistent with Ms Ninness’ character and the responsibilities and duties she had as the new Chief Operating Officer.
EVALUATION OF GENERAL PROTECTIONS CLAIMS
[124] Transcript dated 7 August 2024 at p 220 and Exhibit R6 at p 225 and annexure EN-31.
Adverse action in contravention of s 340 of the FWA?
By [22] to [44] of her Statement of Claim, the applicant alleges she had exercised certain workplace rights and because of that, she was suspended and then dismissed from employment.
For all the foregoing reasons, the Court determines that the only workplace rights exercised by the applicant relate to:
(a)First Paid Personal Leave exercised on 9, 10, 11 and 13 January 2023;[125]
(b)Second Paid Personal Leave exercised on 27 and 30 January 2023;[126]
(c)Third Paid Personal Leave exercised on 28 and 29 March 2023;[127]
(d)Fourth Paid Personal Leave exercised on 12 and 14 April 2023;[128]
(e)Fourth Employment Inquiry exercised on 22 May 2023;[129]
(f)WorkCover Claim exercised on 26 May 2023;[130] and
(g)FWC Application Proposal exercised on 30 March 2023.[131]
[125] Statement of Claim at [25](a) and [26].
[126] Statement of Claim at [25](a) and [27].
[127] Statement of Claim at [25](a) and [28].
[128] Statement of Claim at [25](a) and [29].
[129] Statement of Claim at [25](b) and [33].
[130] Statement of Claim at [25](e) and [37].
[131] Statement of Claim at [25](f) and [38].
The foregoing findings lead to the conclusion that the applicant did exercise certain workplace rights, but not all those alleged have been established.
The ultimate question for the Court in relation to this claim is whether any of the prohibited reasons, being the workplace rights found to have been exercised, were a substantial and operative reason for her dismissal.[132] In answering this question, the Court is guided by the principles discussed at [18] to [20] of these reasons.
[132] Board ofBendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, Gummow and Hayne JJ at [104].
Counsel for the applicant made forceful submissions in opening and closing address that the Court should draw an adverse inference because the respondents did not call Mr Estorque to give evidence in the case. I am unwilling to draw such inference for the following reasons:
(a)The legal principles and authorities clearly stand for the proposition that it is the decisionmakers state of mind that must be considered when making findings about the reason for an adverse action. The uncontentious evidence is that Mr Estorque was not the decision maker;
(b)Mr Estorque’s views about the manual entry are before the Court because his communications with Ms Ninness are in evidence. Based on those, I have found that he did not describe or categorise the manual entry as false, he acknowledged a lack of understanding about what was expected of the applicant in reconciliation tasks and stated that the manual entry only affected the internal records; and
(c)Although Mr Estorque was employed by the first respondent, there is no evidence that the applicant had requested he give evidence and been met with a refusal. Additionally, the applicant could have subpoenaed Mr Estorque if she considered his evidence would assist her case. But the facts found on the evidence before the Court reveals that there were concerns about the applicant’s performance which were the subject of discussion with Mr Estorque, Ms Ninness and herself in February and March 2023. Although he may have had a less serious view about the applicant’s conduct relating to the manual entry, he was not present when she was asked to explain what she had done and he was not the relevant decision maker.
The applicant’s case invites the Court to infer that the established exercise of workplace rights were the substantial or operative reason for her suspension and dismissal rather than her conduct related to the manual entry.[133]
[133] Applicant’s written submissions filed 2 August 2024 at [70].
While I accept that the reverse onus is relevant and applies, I am not persuaded to draw the inference invited because I generally accept Ms Ninness to be a truthful witness and am satisfied that the reverse onus has been met because:
(a)There were already performance issues with the applicant from late January 2023, including relating to reconciliations;
(b)The First and Second Paid Personal Leave Requests were granted without controversy;
(c)From immediately after the manual entry being made and consistently thereafter, Ms Ninness believed the manual entry to be false and assessed it as creating a serious risk to the first respondent because the applicant had forced reconciliation without information capable of verifying the amount of the entry;
(d)All other workplace rights found to have been exercised were exercised after the manual entry and were initiated in reaction to, or in defence of, the suspension by a person well-educated in fair work laws; and
(e)Importantly, Ms Ninness and Mr Mead had concerns because the applicant sought to deflect responsibility for the reconciliation duty she performed on 15 March 2023 to Mr Estorque when it was part of her duties.
I have found that Ms Ninness formed a genuine but, in hindsight, erroneous view that the manual entry was false and created serious risk because the applicant subsequently failed to acknowledge the potential consequences of conducting the reconciliation as she did. Mr Mead, guided by Ms Ninness, also accepted the assessment of the nature of the conduct and risk to the first respondent. It is for these reasons that the applicant was suspended and then dismissed from employment.
Where an employer’s mistaken and honest belief about the conduct of an employee is the reason for adverse action, the subjective state of mind of the employer is relevant and I accept on the facts found in this case that the respondents have satisfied the reverse onus.[134]
[134] Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273.
In arriving at this conclusion, I accept the contention by the respondents at [61](h) of their written submissions that there is no additional presumption that merely because a workplace right has been exercised it must have had something do with the adverse action.[135]
[135] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [60] to [62]; and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 at [20] to [21].
For completeness, for the reasons given at [83] and I am satisfied that there was no adverse action because the applicant exercised workplace rights. Rather, the leave audit discovered inaccurate recording of leave entitlements for a number of employees and this was rectified to align with the employment agreement entitlements.
For all the foregoing reasons, the general protections claims all fail.
OTHER CLAIMS
Contract claims
The applicant confined her claims relating to breach of the employment agreement to the suspension and failure to pay time in lieu and annual leave on termination of employment.[136]
[136] Applicant’s written submissions filed 2 August 2024 at [103].
The respondents have submitted that the applicant’s conduct between late January 2023 to making the manual entry on 15 March 2023 demonstrated a persistent failure to perform her duties according to the first respondent’s processes and best practice despite repeated managerial interventions.[137]
[137] Respondent’s written submissions filed 23 July 2024 at [74].
I do not accept that submission. The shortcomings in the applicant’s performance between January and March 2023 were acknowledged by Ms Ninness and Mr Estorque to be in part due to the need for further training and supervision. The maker-checker process was introduced to respond to this in late February/early March 2023 and at that time the applicant’s conduct was not considered to be so egregious that suspension was required.
Between implementation of the training and supervision, there is little or no evidence that the applicant continued to consistently fail in performing her duties and I was not directed to any evidence of dishonest or deliberate neglect or omissions. Rather, it was the manual entry on 15 March 2023 that resulted in the suspension.
Accordingly, I am not persuaded that there was a persistent, serious and aggravated breach of the applicant’s obligations under the employment agreement under clause 8(b). I prefer the written submissions of the applicant at [108] to [110].[138]
[138] Written submissions filed 2 August 2024.
As the applicant had not served for 12 months with the first respondent, she is not entitled to receive the fifth week of annual leave upon termination of employment. The fifth week was not arbitrarily removed as alleged by the applicant due to the findings I have made at [83]. How this conclusion impacts on the claim for failure to pay “termination entitlements” pleaded at [48] of the Statement of Claim and the submission that the applicant had two days’ time in lieu owing to her at termination is not clear on the evidence. If the applicant maintains she is entitled to compensation for unpaid entitlements other than annual leave, I will need to hear further from the parties.
If [48] of the Statement of Claim relates to an allegation that the applicant ought to have been paid personal leave for the period of 22 May 2023 to 1 June 2023, I am satisfied that the evidence demonstrates that she did not have any personal leave due to her and so it was not payable.[139] However, as the suspension was contrary to the terms of the employment agreement, I may need to hear submissions about whether any order for compensation should be made.
[139] Exhibit R8 at [63] and [65], annexure JM-13 and Exhibit R6 at [107]-[108].
Other Fair Work Act contraventions
Ultimately the applicant appears to have confined herself to two other claims related to contraventions of the Act,[140] being:
(a) failure to give the Applicant a pay slip within one working day of paying the Applicant her salary in March and June 2023; and
(b) not providing the Applicant with any notice of the termination of her employment.
[140] Written submissions filed 2 August 2024 at [128].
The parties made supplementary submissions in relation to the alleged contravention of s 536(1) of the Act. The evidence relevant to this claim is accurately summarised in the respondents’ submissions filed 1 October 2024 as follows:
3. The evidence establishes the following:
a. Talaria’s payroll system is administered by an external organisation, Bluerock Books, through a software program called “Xero”;
b. Employees of Talaria are paid on the 15th of each month, and Bluerock immediately uploads employees’ payslips onto Xero for them to access;
c. At the same time, Bluerock sends an email to employees saying: “Your payslip is ready”, attaching the payslip and informing them that it can be opened on Xero (e.g. CB200);
d. The Applicant had a Xero account, which she utilised to apply for leave she took, but she “didn’t really use [the payslip access] function” on Xero, noting that she normally got her payslips through her emails (T-103);
…
The applicant maintains that s 536(1) of the Act was contravened because the respondents did not give the applicant a payslip for March 2023. The respondents concede that due to administrative error an email was not sent to the applicant when the payslip was created in Xero.[141]
[141] Written submissions filed 1 October 2024 at [3](e).

Further, the respondents concede that s 536(1) of the Act is invoked in respect of the March 2023 payslip because the applicant had performed work during the pay period but submit that there was no contravention of the provision because she had access to the payslip via Xero, relying on Farquhar v Commonwealth of Australia [2023] FedCFamC2G 1100 (“Farquhar”).
In Farquhar, Blake J concluded that where an employee could access the payslip within one working day of payment through an electronic payroll system routinely used by the parties, the employer had not contravened s 536 of the Act.[142]
[142] At [114].
The applicant distinguishes Farquhar in her submissions and urges the Court not to follow the reasoning given by Blake J because although it accepts that the Act does not provide a meaning for “give” in s 536(1), it ought not be construed to mean when access is possible via payroll software. The applicant submits that is because of s 28A of the Acts Interpretation Act 1901 (Cth), relying on the reasoning of Jarrett J in Nair v Queensland University of Technology [2019] FCCA 1709 (“Nair”).
However, the facts of Nair did not involve purported compliance with s 536(1) by giving a payslip by electronic means, which is permissible by virtue of regulation 3.45 of the Fair Work Regulations 2009 (Cth). Instead Nair related to giving a payslip by sending it by post after the employee was no longer in employment. Accordingly, I do not consider the reasoning in Nair to be instructive in determining whether s 536(1) of the Act has been contravened in this case.
Further, s 28A of the Acts Interpretation Act1901 (Cth) does not exclude giving a document by electronic means as it expressly includes the following notation: “[t]he Electronic Transactions Act 1999 (Cth) deals with giving information in writing by means of an electronic communication.”
By virtue of ss 9(1)(d) and (4) of the Electronic Transactions Act 1999 (Cth) giving a notice or information such as a payslip by an electronic means of communication is expressly contemplated and permitted where the recipient gives consent to that means.
There is evidence that the applicant routinely accessed payslips by email but not via Xero and there is no evidence that she consented to receiving the payslips by directly accessing them from Xero. Accordingly, I am satisfied there has been a contravention in relation to the March payslip but for reasons other than those submitted by the applicant.
Regarding the June payslip, I accept the submissions by the respondent that s 536(1) of the Act has not been contravened because the obligation it creates to provide the payslip is dependent on the performance of work. This is clear from the plain and ordinary words used in the subsection and is the interpretation given in both Farquhar and Nair.
As it is established that the applicant did not perform work between 21 March 2023 and her dismissal on 23 June 2023, regardless of whether she was available for work for part of this period s 536(1) of the Act has not been contravened in respect of the final payment made to her.
In respect of the alleged failure to give notice of termination of employment or make payment in lieu thereof, it is common ground that such payment was not made. The respondents submitted that notice was not required because of the applicant’s serious misconduct related to the manual entry.[143] Serious misconduct has the meaning ascribed to it by the Fair Work Regulations 2009 (Cth).[144] Given the findings and reasons at [96] to [100], I am not satisfied that the conduct of the applicant amounts to serious misconduct and as such she should have received payment in lieu of notice.
[143] Operation of s 123(1)(b) of the Act.
[144] Regulation 1.07(1) and (2).
Because of the conclusions about the failure to provide a payslip as required and notice in lieu, civil penalties are payable pursuant to ss 546 and 539 of the Act.
CONCLUSION
Noting the agreed scope of the defended hearing referred to at [9] of these reasons and what the Court is to determine at this juncture, for the reasons given above the only declarations the Court proposes to make are that:
(1)The first respondent breached the employment agreement by implementing suspension of the applicant’s employment on 21 March 2023;
(2)The first respondent contravened s 536(1) of the Act by failing to provide a payslip to the applicant within one working day of paying her in March 2023; and
(3)The first respondent contravened ss 44(1) and 117 of the Act by failing to pay the applicant a minimum of one week pay in lieu of notice when her employment was terminated.
In the Statement of Claim, the applicant contended that the second and third respondents were accessorily liable but it is not clear whether this related only to the unsuccessful adverse action claim. As that claim has failed, there will only be a need to determine an accessorial liability issue if the applicant maintains that claim in relation to the declarations made by the Court.
The parties agreed that the Court should determine what pecuniary penalties should be imposed for the contraventions of the Act referred to at [117], but there has been inadequate ventilation of the question of pecuniary penalties. I consider this should be addressed by further submissions, which may be made by consent or otherwise and I will hear from the parties as to what procedural orders should be made to finalise the proceedings.
In addition, unless the parties reach agreement about the compensation payable and interest thereon as a result of the declaratory orders referred to above, the Court will need to receive particularisation of the compensation sought by the applicant and submissions from both parties in respect of the same.
Finally, due to the ambiguity concerning [48] of the Statement of Claim and the reasons above at [101], if the applicant pursues further claims this will need to be addressed.

I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri.
Associate:
Dated: 20 December 2024

[85] Transcript dated 6 August 2024 at p 186, lines 26-32.
[85] Transcript dated 6 August 2024 at p 186, lines, 37-40.

File number(s):	PEG 175 of 2023
Judgment of:	JUDGE TAGLIERI
Date of judgment:	20 December 2024
Catchwords:	INDUSTRIAL LAW – general protections claim – adverse action – alleged breach of employment contract – alleged breaches of Fair Work Act – whether employee exercised workplace rights – if exercise of workplace rights was a substantive and operative reason for dismissal – reverse onus satisfied by respondents – general protections claims not made out – breach of contract claim successful in part – whether obligation to give payslips satisfied if access available via payroll software – declarations made that there were some contraventions of the Fair Work Act by the first respondent
Legislation:	Acts Interpretation Act 1901 (Cth) s 28A Electronic Transactions Act 1999 (Cth) ss 9(1)(d), 9(4) Fair Work Act 2009 (Cth) ss 44, 117, 123(1)(b), 340, 341, 342, 361, 536, 539, 546 Fair Work Regulations 2009 (Cth) r 1.07
Cases cited:	Alam v National Australia Bank Limited (2021) 288 FCR 629 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046 Farquhar v Commonwealth of Australia [2023] FedCFamC2G 1100 Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677 Nair v Queensland University of Technology [2019] FCCA 1709
Division:	Division 2 General Federal Law
Number of paragraphs:	121
Date of last submission/s:	1 October 2024
Date of hearing:	5-7 & 26 August 2024
Place:	Melbourne & Hobart (by MS Teams)
Counsel for the Applicant:	Mr Lake
Solicitor for the Applicant:	Harmers Workplace Lawyers
Counsel for the Respondents:	Mr Garozzo
Solicitor for the Respondents:	Seyfarth Shaw Australia

PEG 175 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	JOY CHIA Applicant
AND:	TALARIA ASSET MANAGEMENT PTY LTD First Respondent ELIZABETH NINNESS Second Respondent JAMIE MEAD Third Respondent

ORDER MADE BY:	JUDGE TAGLIERI
DATE OF ORDER:	20 DECEMBER 2024