Kantor v Wisr Finance Pty Ltd - [2022] FedCFamC2G 672

Federal Circuit and Family Court of Australia
(DIVISION 2)
Kantor v WISR Finance Pty Ltd [2022] FedCFamC2G 672

File number: MLG 3706 of 2019

Judgment of: JUDGE FORBES

Date of judgment: 12 September 2022

Catchwords: FAIR WORK – adverse action – dismissal because of alleged exercise of workplace rights – whether complaints were complaints that the applicant was able to make – whether complaints an exercise of workplace right – employer’s reasons for dismissal – whether employers stated reasons determinative – consideration of all the evidence – whether presumption of prohibited reason rebutted – reverse onus not discharged by employer – applicant entitled to compensation

Legislation: Fair Work Act 2009 (Cth), s 340, 341, 342, 360, 361

Cases cited:
Alam v National Australia Bank [2021] FCAFC 178

BHP Coal v CFMEU (2014) 253 CLR 243
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
CFMEU v Endeavour Coal (2015) 231 FCR 150

Collison v Brighton Road Enterprises Pty Ltd (No 2) [2016] FCCA 1798

Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17

General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605

Hill v Compass Ten Pty Ltd [2012] FCA 761, (2012) 205 FCR 94

Ho v Ngo [2021] FedCCFamC2G 127

Kuhl v Zurich Financial Services Aust Ltd (2011) 276 ALR 375

The Environmental Group v Bowd, [2019] FCA 951

Wong v National Australia Bank [2021] FCA 671

Zhang v Royal Australian Chemical Institute Inc [2005] FCAFC 99, (2005) 144 FCR 347

Division: Division 2 General Federal Law

Number of paragraphs: 340

Date of last submissions: 1 December 2021

Date of hearing: 3 - 4 November 2021

Place: Melbourne

Counsel for the Applicant: Mr Miller

Solicitor for the Applicant: McDonald Murholme

Counsel for the Respondent: Mr Manos

Solicitor for the Respondent: Gilbert + Tobin
ORDERS

MLG 3706 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MICHELLE KANTOR

Applicant

AND:
WISR FINANCE PTY LTD

Respondent

order made by:

JUDGE FORBES

DATE OF ORDER:

12 sEPTEMBER 2022

THE COURT ORDERS THAT:
1.Within 7 days of the date of these reasons, the parties’ legal representatives are to confer with a view to bringing in orders which give effect to these reasons for judgment.
2.In the event that no agreement can be reached pursuant to Order 1 herein, each party is to provide the chambers of Judge Forbes with a proposed order.
3.The proceeding will be listed for directions and a further hearing on the question of penalties and costs (if any), on a date to be fixed.

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).
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA AT MELBOURNE
MLG 3706 of 2019
MICHELLE KANTOR
Applicant
And
WISR FINANCE PTY LTD
Respondent
REASONS FOR JUDGMENT
TABLE OF CONTENTS
Orders
Introduction
Background
The Statutory Scheme
Issues for Determination
The Applicant’s alleged complaints
Characterisation of the complaints or inquiries alleged
Complaints or inquiries that the Applicant was “able to make”
Were each of the pleaded complaints an exercise of workplace rights?
The First Employment Complaint
The Second Employment Complaint
The Third Employment Complaint
The Fourth Employment Complaint
The Fifth Employment Complaint
The Sixth Employment Complaint
The Seventh Employment Complaint
Was adverse action taken because of Ms Kantor’s complaints?
The Respondent’s asserted reasons
The Respondent’s reasons explored
When did the CEO discover the Skype messages?
When did the CEO make his decision to terminate the Applicant’s employment?
Objective seriousness of the Skype messages
Proximity and haste
The Induction and cultural fit reasoning
Was the CEO welcoming of complaints?
The Hypocrisy reasoning

Inconsistencies in the reasoning
Observations about the evidence
Conclusion as to the reasons for dismissal
Relief
Loss of chance of ongoing employment
Non-economic loss
Declaration
Penalties2
Disposition2
_Toc101947862
REASONS FOR JUDGMENT
JUDGE FORBES
Introduction

In this proceeding the applicant, Ms Michelle Kantor, alleges that the respondent Wisr Finance Pty Ltd (Wisr) contravened s 340 of the Fair Work Act 2009 (Cth) (‘FW Act’) by taking adverse action against her because or for reasons which included that she exercised one or more workplace rights.
The substance of the claim is that Ms Kantor alleges that she was dismissed from her employment with Wisr because she made complaints in relation to her employment.
Ms Kantor seeks compensation for economic and non-economic loss suffered by reason of the dismissal. She also seeks a declaration that Wisr has contravened the FW Act and seeks the imposition of penalties in respect of its contravention.
The trial of this matter was heard on 3 and 4 November 2021. Mr Millar of counsel appeared for the applicant and Mr Manos of counsel represented the respondent.
At trial the applicant was the only witness in her case. Prior to the hearing she filed affidavits sworn on 16 March 2021 and 24 June 2021 and subject to one minor objection she adopted those affidavits as her evidence in chief.
The respondent relied on the evidence of three witnesses, its Chief Executive Officer Mr Anthony Nantes, the Head of Growth Mr Peter Beaumont and Ms May Ho, the company’s Financial Controller and Compliance Officer. Each filed an affidavit prior to trial and adopted their affidavit as evidence in chief.
All witnesses were cross-examined.
Subsequent to the hearing each of the parties filed detailed written closing submissions and a further hearing was convened on 1 December 2021 at which counsel developed those submissions.
Having heard and considered all the evidence and the parties’ submissions, I have concluded that the applicant is entitled to a declaration and compensation for economic and non-economic loss. My reasons for so finding are set out below.
Background
The respondent Wisr Finance Pty Ltd (ACN 119 503 221) (Wisr) is engaged in the business of offering consumer lending services in the Australian market. Wisr is a digital-only finance provider and offers products such as unsecured personal loans and secured vehicle loans along with other non-lending services. Wisr is a 100% owned subsidiary of Wisr Limited, a publicly listed company on the Australian Stock Exchange. The parent company was established in 2014 and was initially named DirectMoney.
On 25 March 2019 the applicant (Ms Kantor) commenced full-time employment with Wisr in the position of Business Development Manager pursuant to a written employment agreement made on 19 March 2019[1].
[1] Kantor affidavit, annexure MK-1, CB 68-78
In the role of Business Development Manager (BDM) Ms Kantor primarily worked from home in Victoria. Her principal responsibilities included building relationships with brokers, meeting growth targets and attending and presenting at professional development days. Ms Kantor was one of a number of business development managers who performed similar work.
Ms Kantor worked for approximately 45 hours per week and was paid a salary package of $90,000 per annum plus superannuation. Evidence at trial indicated that she could also earn commissions and qualify for a long-term incentive depending on her performance. Ms Kantor’s employment pursuant to the employment contract was subject to a probationary period of 6 months.
Ms Kantor reported to Mr Peter Beaumont, the company’s Head of Growth. The Chief Operating Officer for the company was Mr Matthew Lu and Mr Andrew Goodwin was the Chief Financial Officer. These senior employees all in turn reported to the company’s Chief Executive Officer, Mr Anthony Nantes. Mr Nantes had held the position of Chief Executive Officer since September 2016.
Ms Kantor says that after her first week in the role it became apparent to her that the company was understaffed and that servicing and credit officers who were supposed to support her role were underqualified and inexperienced. She said that this gave rise to early concerns about the training of these officers, concerns which she raised with Mr Beaumont. In her affidavit she speaks in general terms about making various complaints and raising concerns about unrealistic and unreasonable performance targets and about staffing issues.
On 6 June 2019 Ms Kantor attended an industry awards night in Melbourne. Mr Goodwin, the CFO, travelled to Melbourne from Sydney to attend. The evening was attended by representatives of many finance industry players, including lenders and brokers.
Two days later, on 8 June 2019, Ms Kantor received an unsolicited text from an unknown number. The text message[2] stated:
Hey Michelle – [name omitted] here. I was the 29 year old going on 40 guy in the tux … I asked [Mr Goodwin] for your number as I was keen to reach out. Really enjoyed our chat the other night so thought I’d say hello
[2] MK-2
Ms Kantor says that she was shocked to receive the text because she had not given Mr Goodwin consent for her personal mobile phone number to be given to anyone. She construed the text as an unwelcome and inappropriate approach which left her feeling uncomfortable.
That same day, on 8 June 2019, Ms Kantor says that she made a complaint to Mr Beaumont about the fact that Mr Goodwin had provided her personal mobile phone number to the broker. She does not give detail about what she said to Mr Beaumont at the time although she recalls that he responded by saying “boys will be boys”. In her application to the Court this communication by Ms Kantor to Mr Beaumont is styled as the “First Employment Complaint”.
Mr Beaumont did not include a response to this allegation in his affidavit, but when cross‑examined he recalled that Ms Kantor had raised the issue with him but he could not recall what he said in response. Mr Beaumont denied that he would have said “boys will be boys” as it is not an expression he would use. Mr Beaumont said he did not take the complaint any further because he believed that Mr Goodwin would only have had the best of intentions in providing Ms Kantor’s phone number to the broker.
On 14 June 2019 Ms Kantor and two other business development managers, Ms Danielle Mancuso and Mr Corey Low travelled to Sydney to meet with Mr Beaumont and the CEO Mr Nantes. Ms Kantor says that during the meeting the business development managers voiced concerns about their performance targets and about support staffing. Ms Kantor says that the business development managers collectively expressed the view that they were “burnt out” and needed support.
Internal communications between Wisr staff members were often conducted through a Skype messaging platform. This platform was available in addition to other conventional means of communications such as email. The use of these communications platforms was subject to a company policy known as the “Computer Use, Internet and Email Policy”[3], compliance with which was a term of Ms Kantor’s employment agreement[4].
[3] Nantes affidavit, annexure AN-1
[4] Clause 3.2.9
On 17 June 2019 between approximately 2.11pm and 2.13pm Ms Kantor engaged in a Skype exchange with a fellow employee, Mr Saj Islam, one of the servicing officers. In the course of this brief conversation, which appears to have been initiated by Mr Islam, the following messages were exchanged[5]:
[5] Nantes affidavit AN-4, Exhibit A2 Excel spreadsheet lines 24-17 reading bottom up
Islam 14:11:04          Loan 92265 Mr Manuel Lee Buckly/ncalled broker – advised withdrawn as the client has found a boat-it will expire tomorrow and will need to apply again
Islam 14:11:43          im going through all the approveds
Islam 14:11:48          chasing for yu
Kantor 14:12:06        sweeeeeeeeeeeet
Kantor 14:12:11        I only have 2 settles today
Kantor 14:12:21        I feel like punching someone lol
Islam 14:12:40          preferably not me thanks
Islam 14:12:58          nah your soft anyways so I dnt care
On 21 June 2019 Ms Kantor was in Sydney working at Wisr’s office. She gave evidence that while she was discussing work with two servicing officers, a manager interrupted and requested that she move away because she was allegedly “disruptive”. Ms Kantor said that she was then directed to sit at a desk that was completely segregated from her colleagues. She said that she felt diminished and disrespected by this and that she approached the Chief Operating Officer, Mr Matthew Lu, to express that she was being treated unreasonably and unfairly.
That day, presumably after having been chastised, Ms Kantor had two short Skype conversations with her colleague Mr Islam. Between 11:33am and 11:37am Mr Islam and Ms Kantor exchanged the following messages[6]:
[6] Nantes affidavit, annexure AN-4 (part of conversation), Exhibit A2 Excel spreadsheet lines 70-61 reading bottom up
Islam   11:33:19         don’t cry my friend
Islam   11:33:23         I can still see u
Kantor 11:33:30         SHHHHHHHHHH
Islam   11:33:50         but wallah we weren’t distracted
Kantor 11:37:02         MAITE FUKN RIDICULOUS
Kantor 11:37:13         I am never coming to syd again
Islam   11:37:18         I know brush it off babe
Kantor 11:37:35         I know but seriously – did you see peite?
Kantor 11:37:42         just brush me off like that
Islam   11:37:53         yeah, babe I see everything
Then later that afternoon between 4:10pm and 4:11pm Ms Kantor and Mr Islam exchanged the following[7]:
Islam   16:10:02         talk to me
Kantor 16:10:51         no
Islam   16:10:52         serisopuly tho u ok
Kantor 16:10:55         silent treatmenr
Kantor 16:11:00         lol yeah
Islam   16:11:08         from who
Islam   16:11:20         I will upper cut then for u
Kantor 16:11:27         you better
[7] Nantes affidavit, annexure AN-4, Exhibit A2 Excel spreadsheet lines 85-78 reading bottom up
Ms Kantor gave evidence that a few days later, on 26 June 2019, she and Mr Islam had a conversation regarding how to do a task known as “add backs”. She says that she made numerous calls to various individuals seeking assistance with this task but with no luck. This then prompted Ms Kantor to send an email to Mr Lu, Mr Beaumont, a credit manager Ms Young and a credit officer Mr Zhao saying that she had been trying to get help all day with the add back issue and that she needed someone to check her work[8]. Her evidence was that she received unsatisfactory replies from Mr Beaumont that evening and Mr Lu the following morning, which left her feeling extremely unsupported and disrespected.
[8] Kantor affidavit [22], CB 57 MK-3, CB 83
Ms Kantor also gave evidence[9] of a sequence of events which also unfolded on 26 June 2019 where she sought urgent approval of a car loan from her manager Mr Beaumont. Describing the events from her perspective, Ms Kantor said that Mr Beaumont and the credit officer Mr Zhao ignored her system notes and text messages, leaving her to feel utterly defeated[10]. The matters described in this and the preceding paragraph were not the subject of challenge in cross-examination.
[9] Kantor affidavit [23]
[10] Kantor affidavit [24]
On 27 June 2019 Ms Kantor exchanged a number of emails[11] with Mr Beaumont and Mr Lu in relation to the car loan approval which she was seeking urgently the previous day. In the course of those exchanges she again sought to impress the urgency of the matter on her managers and when she was informed by Mr Lu that current practices would not be changed “on the fly”, she again asked for the issue to be dealt with quickly.
[11] Kantor affidavit, MK-3
Later that morning, Ms Kantor took a telephone call from Mr Beaumont and there were discussions regarding the car loan and her dealings with the broker. Her evidence is that she asked Mr Beaumont to listen to her and acknowledge her and that she told Mr Beaumont that she was experiencing unnecessary stress. Ms Kantor’s evidence is that Mr Beaumont scoffed at her suggestions around how communications should be improved, an allegation he denies. In her application, Ms Kantor styles this interaction with her manager as the “Second Employment Complaint”.
At noon on 27 June 2019, Ms Kantor sent an email to the CEO Mr Nantes[12], drawing his attention to her concerns about not being listened to in her role. The email states, among other things, that she seeks an acknowledgement of her messages, that she needs support, that she feels like she has no voice and that she is frustrated. She expressed wide-ranging unhappiness about a lack of urgency within the company and the lack of cohesion between her efforts and those in operations. Ms Kantor specifically mentions the CFO Mr Lu who she felt had not been timely in responding to an email she had sent 24 hours prior. Ms Kantor stated to Mr Nantes “it’s just not good enough” and attached as evidence screenshots of her Skype messages with Mr Lu as well as an email she had sent the previous evening in which she had requested urgent assistance. This email communication to Mr Nantes on 27 June 2019 is pleaded as the “Third Employment Complaint”.
[12] Kantor affidavit [27], MK-3
Sometime after Ms Kantor’s “complaint” to Mr Nantes, she received a text message[13] from her colleague Mr Islam stating that he had overheard Mr Lu say that “he wants to punch [the Applicant] in the face” and that Mr Beaumont had agreed and said that he wanted to do the same. In his text message, Mr Islam stated that he had spoken to Mr Lu and told him off and that Mr Lu had replied that he would call Ms Kantor. When asked by Ms Kantor whether Mr Lu had denied making the comment, Mr Islam responded “no but saying his saying it’s out of frustration from your email”.
[13] MK-4, CB 87-88; Kantor Affidavit [28], CB 59-60
At trial, this event (that Mr Lu had allegedly been overheard to say that he wanted to punch Ms Kantor in the face) was loosely referred to as the ‘Lu incident” – although it is to be noted that both Mr Lu and Mr Beaumont denied the allegation, and Mr Islam was not called to give evidence.
In any event at around 2:05pm on 27 June 2019 Mr Lu did send Ms Kantor text messages[14] in which he offered to “apologise about something” and sought to clarify the comment he had made, as it “was taken completely out of context”. In that message he offered to address the matter with Ms Kantor directly. A short time later, Ms Kantor replied to Mr Lu’s text message stating “I can’t see any context where a comment like that is acceptable”[15]. Further, she stated that she required some time to gather her thoughts and that she would approach who she needs to when she is ready.
[14] AN-5, CB 190
[15] AN-5, CB 190
The following morning 28 June 2019, unbeknownst to Ms Kantor, Mr Lu sent an “Incident Report” to Mr Nantes and Ms May Ho. Ms Ho has responsibilities for payroll and human resources matters within Wisr and she reports to and assists Mr Nantes in relation to such matters. In the “Incident Report” Mr Lu explains that the previous day he had been approached by Mr Islam who had taken offence about the comments he had allegedly directed to Ms Kantor. Mr Lu explained that he had been feeling frustrated with the email exchange he was having with Ms Kantor at the time and accepted that he may have expressed that frustration in a colloquial manner and in words that he could no longer recall. He noted that he had tried to contact Ms Kantor to provide clarity and to apologise for any comments that may have offended her.
Following receipt of the Incident Report Mr Nantes telephoned Ms Kantor to enquire about her wellbeing. Ms Kantor says she was caught off guard by this unexpected call and told Mr Nantes that she was not ready to discuss the Lu incident because she had not had time to process what had occurred. It is common ground that in the course of her brief discussion with Mr Nantes, Ms Kantor said words to the effect:
“… what was said by Matthew [Lu] was disgusting and I will take it further because it is unacceptable”

That comment is identified in the application as Ms Kantor’s “Fourth Employment Complaint”.
It was agreed that Ms Kantor would talk about the incident when she was ready to do so and the phone call ended on that basis. That was confirmed in an email sent by Mr Nantes shortly after the telephone call where he reiterated to Ms Kantor that she had his full support and that he was keen to hear what issues she had and how they were impacting on her. Mr Nantes said Ms Kantor was welcome to discuss the Lu incident further when she was ready to do so[16] and he suggested they talk on the following Monday.
[16] AN-6, CB 192
On Saturday morning Ms Kantor emailed Mr Nantes. She explained that she had not been comfortable when he rang the previous day because she had been caught off guard. However, she went on to say “i do appreciate you agreeing with my suggestion of speaking about this in a more formal setting given the severity/sensitivity of Thursday’s incident”.
On the following Monday morning 1 July 2019, Ms Kantor followed up with Mr Nantes. In an email at 10:24am she stated that she was happy to coordinate a time for a discussion. She also stated that she had spoken with her brother over the weekend and that she had copied him on the email so “he’s across all correspondence from here”[17]. Ms Kantor’s brother is a Melbourne barrister.
[17] AN-8
An exchange of emails followed[18]. Mr Nantes suggested a videoconference that day but Ms Kantor said that she would “prefer to talk about this in person” and could not do so because she had appointments scheduled throughout the week. Mr Nantes agreed to a face-to-face meeting and in relation to timing said “however, I’m concerned at the timeline you’re suggested, and would like to discuss any issues you have sooner than that, so that we can provide appropriate next steps, support or responses.”
[18] AN-8
Mr Nantes subsequently requested Ms Kantor to attend the Sydney office the following day[19]. Ms Kantor’s evidence is that she had pre-scheduled appointments for the Tuesday but Mr Nantes insisted “we would like to treat any potential issue for any staff member as a matter or (sic) priority over other work”.
[19] MK-6
On 2 July 2019 Ms Kantor travelled to Sydney and attended a meeting with Mr Nantes and Ms Ho. Mr Corey Low, one of the other BDMs, attended the meeting as Ms Kantor’s support person. The purpose of the meeting was to discuss the Lu Complaint[20].
[20] Nantes affidavit [45]
The meeting took place between 1:05pm and 2:05pm. Ms Ho took comprehensive minutes of the meeting and subsequently produced a record under the subject heading “HR grievances”[21]. Some of the detail recorded in the minutes as to what transpired at the meeting is dealt with later in these reasons.
[21] AN-9
It is clear, however, that Ms Kantor raised numerous issues in the meeting relating to her employment. Those issues included the circumstances of her “onboarding” as a new employee into the organisation, internal communication issues between herself and senior managers, issues regarding staffing and her performance targets, Mr Goodwin’s conduct in providing her personal mobile phone number to a third-party and the allegation that Mr Lu had stated in the workplace that he wanted to “punch Michelle in the face”. In her application Ms Kantor describes these complaints, in aggregate, as the “Fifth Employment Complaint”.
At this juncture in the narrative it is appropriate to make some further observations about the course of this meeting.
First, it is common ground that the meeting commenced with Mr Nantes running through the Wisr company policy and process for dealing with employee grievances. Having done so, he invited Ms Kantor to be open and to feel safe about matters “so that an appropriate course of action could be taken given what is raised”. Mr Nantes reiterated that the meeting was meant to be a safe space for such a conversation.
Secondly, according to the minutes, the accuracy of which I accept, Ms Kantor repeatedly stated through the course of the meeting that she did not feel safe . She felt uncomfortable dealing with workplace conflict scenarios and felt uncomfortable and unsafe that a comment about her had been made by a senior leader. She said she did not feel safe that she could speak to senior leaders or escalate matters “without inappropriate comments being made” or having “to worry about someone saying something about her behind her back”. She certainly did not feel safe about what had been reported to her about Mr Lu and she told Mr Nantes that she had felt shocked and did not know how to react. Mr Nantes expressed concern that Ms Kantor didn’t feel safe and said that that was no state for her to be in.
Thirdly, the purpose of the meeting was to establish what course of action needed to be taken. Mr Nantes asked Ms Kantor at least twice what particular outcome she wanted to achieve but she responded that she hadn’t thought that far ahead. Nonetheless, Mr Nantes stated that he was taking the incident seriously, would need to go away and substantiate “the accusations”, would investigate the issue by talking to the parties involved and that he would come back to Ms Kantor about next steps within 24 hours.
Fourthly, Mr Nantes alleges[22] that during the course of the meeting and in relation to the Lu complaint, Ms Kantor stated, amongst other things:
“I am not the one putting in a formal complaint, I am just reacting to the questions that are being asked …. This type of language is inappropriate on any level, disgusting and talking about physical violence anywhere in the workplace is unacceptable and there would be no context in which that would be acceptable. I would not say that to other people.”
[22] Nantes affidavit [45]
For reasons which will become apparent later in this judgement, those comments attributed to Ms Kantor assume particular significance in Mr Nantes’ decision to terminate her employment. I note that the detailed minute of the meeting prepared by Ms Ho does not record a comment in those terms, although Ms Kantor concedes and I accept that something along those lines was said by her.
Later on 2 July 2019 Mr Nantes, Mr Beaumont and Ms Ho met to discuss the Lu incident[23]. Ms Ho again prepared a detailed minute of that discussion. The apparent purpose of that meeting was to ask Mr Beaumont what he could recall of the Lu incident and what, if anything, he had said at the time. His recollection was that Mr Lu had on the relevant day made a comment along the lines of “operations can’t continue to be a punching bag for everybody”. Mr Beaumont could recall little else, including whether he had responded to Mr Lu’s comment.
[23] AN-10, CB 211; Nantes Affidavit [46], CB 137
Mr Nantes gave evidence that on or around that day he also met with Mr Islam to obtain further particulars of the comments allegedly made by Mr Lu. Mr Nantes says that during that meeting Mr Islam said words to the effect “I’m not sure what I heard exactly but the tone was inappropriate and a leader should never show they are frustrated by an employee.”
Mr Nantes gave evidence that he considered Mr Lu’s, Ms Kantor’s, Mr Beaumont’s and Mr Islam’s accounts of the incident and concluded that the allegation regarding Mr Lu could not be substantiated[24]. The evidence did not satisfactorily reveal when this consideration occurred or whether it involved any further discussion with Mr Lu, but it can be inferred that Mr Nantes came to this view sometime in the two week period between 2 July and 16 July 2019.
[24] Nantes affidavit [48]
On 16 July 2019 Ms Kantor travelled to Sydney to attend a one-on-one meeting with Mr Beaumont which had been arranged at her request. When she arrived at the office that day, she received an email from Mr Nantes asking her whether she was free that day for a “catch up”. She responded that she would be available after her meeting with Mr Beaumont.
Ms Kantor gave evidence[25] that she had lunch with Mr Beaumont and in the course of their discussion she raised what she described as the “elephant in the room”, namely her hurt about what had transpired around the Lu incident, including what Mr Beaumont may have said at the time. She says that Mr Beaumont completely denied knowing about the incident until the Monday after it occurred. The lunch discussion was otherwise directed to issues regarding her performance and targets.
[25] Kantor [37]
Following her lunch meeting with Mr Beaumont, but before meeting with Mr Nantes, Ms Kantor received an email from Mr Nantes at 2.56pm[26] in the following terms:
[26] MK-8
“Hi Michelle
Apologies for the slow reply back to you (I was unwell most of last week unfortunately), but it took a little longer than expected.
As discussed in the meeting, a company policy is that any potential policy related issues are escalated to the CEO who will investigate the claim.
In following company policy I have investigated the matter raised. After significant time spent understanding what was allegedly said on this occasion, it is my view that based on balance of probabilities from the evidence available the claim simply cannot be substantiated.
I would like to remind you how seriously the company takes any and all breaches of Company policy, and if there is ever an occasion where you think Company policy might be breached - I urge you to report this to your line manager, May in her capacity as HR, or directly to myself so that we may address.”
Ms Kantor gave evidence[27] that about 1 ½ hours later, at 4:20pm, she met with Mr Nantes and they went to get coffee. Evidence about this meeting was contested.
[27] Kantor [39]
Ms Kantor says that after exchanging pleasantries, she told Mr Nantes that his email response to her complaint about the Lu incident did not address anything and was very unsatisfactory. She says that Mr Nantes repeatedly used the expressions “we take it seriously”, “on the balance of probabilities” and “cannot be substantiated” in response to her queries about the investigation. She says that Mr Nantes became extremely erratic during the meeting, that he stood up and talked down at her in an intimidating fashion and that when they left the coffee venue he walked away from and ahead of her.
Mr Nantes’ affidavit made no reference to this coffee shop meeting, referring instead to what he believed had been a phone call between he and Ms Kantor wherein they discussed his earlier email about the findings of his investigation. It was only under cross-examination that Mr Nantes conceded that there had been a discussion in a coffee shop, but he vehemently denied that he had stood over Ms Kantor or that he had angrily walked ahead of her. He said that he had stood up only to get some water and that after the meeting he took a phone call and moved away from Ms Kantor for that reason.
Later that afternoon Mr Nantes prepared a file note headed “Conversation with Ms Kantor July 16^th” which he then emailed to Ms Ho. Contrary to its heading, the file note does not record the substance of any “conversation” between the two. Rather, the note states that Mr Nantes had reiterated various things to Ms Kantor including that the Lu incident had been investigated, that the allegations had not been substantiated, that the company takes these things seriously, that the incident had been the subject of an independent review as per company policy, that if Ms Kantor should become aware of any contraventions of company policy she should immediately raise them and that it was up to Ms Kantor to suggest potential next steps, given the findings from the review. The file note largely repeats the content of the email sent to Ms Kantor earlier that afternoon.
A few minutes later Mr Nantes sent an email to Ms Kantor[28] thanking her for her time and following up on their coffee shop conversation. The content of the email to Ms Kantor is in near identical terms to the file note which Mr Nantes had sent to Ms Ho.
[28] AN-13
At 1:09pm on 17 July 2019 Mr Beaumont sent an email[29] to Mr Nantes setting out Mr Beaumont’s account of his lunch meeting with Ms Kantor the previous day. In that email, Mr Beaumont noted that during the lunch discussion Ms Kantor had been keen to clear the air regarding the Lu incident and that they had come to an understanding that perhaps Mr Islam had misinterpreted what he had heard. The email also records that much of their discussion centred on Ms Kantor’s role, her personal goals and career path, noting that Mr Beaumont would continue to help her with professional development.
[29] AN-14
That evening Ms Kantor attended a medical appointment for what she describes as work-related stress and anxiety. She says that she told her doctor that she felt unsafe, although that was not corroborated by other evidence. She was provided with a medical certificate deeming her unfit for work on 18 and 19 July 2019[30].
[30] Kantor Affidavit [40], CB 63
At 10:08pm on 17 July 2019, Ms Kantor sent an email[31] to Mr Nantes in response to his email to her which followed up on their chat the previous day. Her email states as follows:
[31] AN-15
“Hi Anthony,
I’ve had time to reflect on the conversation you and I had yday in Sydney.
I understand you saying how important you and the company treat these issues and that you carried out an investigation.
To be honest, since our chat at the café yday I’m feeling quite concerned as you told me you conducted an investigation and took statements from people which are factually incorrect. In particular, when you told me that the people who overheard what Mat said confirmed that he said it after he got off the phone with me on that Thursday as well as other discrepancies and inconsistencies.
I’m involved in and am now adopting this complaint as my own.
Anthony, the whole situation is causing me to be very anxious and stressed. I saw a GP tonight and i’ll be taking sick leave tomorrow and Friday. I have attached a doctors certificate.
Let’s speak again next week.”
A few days later, on the morning of 22 July 2019, Mr Beaumont emailed Ms Kantor to inquire how she was doing and to ascertain whether she was able to do the “Smartline event” the following day. Ms Kantor responded that she was “not doing too great” but confirmed that she was working that day and would be attending events on the following two days. Mr Beaumont sent a copy of this email exchange to Mr Nantes on an FYI basis.
At 12.31pm that day Mr Nantes replied[32] to Mr Beaumont as follows (cc Ms Ho):
[32] AN-16
“Hi both
I note Michelle’s comment below that she is “not doing too great.”
I would like to get together today with you both to discuss what, if anything, Wisr could possibly do to assist
We also have another meeting scheduled to discuss Michelle, so could combine the conversation.” (emphasis added)
There was no satisfactory evidence about what that other meeting was to be about, who was to attend or when it had been organised. Mr Nantes did not mention this pre-arranged meeting in his affidavit, nor did Mr Beaumont or Ms Ho in theirs. When cross-examined Mr Nantes had no recollection of when the meeting had been scheduled and gave a somewhat vague explanation about having reached out to Mr Beaumont to make sure that Ms Kantor was supported and feeling OK and that the previously-arranged meeting was to be about Ms Kantor’s general well-being.
The observation by Mr Nantes around noon on 22 July 2019 that a meeting had already been scheduled to “discuss Michelle” assumes some significance in the context of Mr Nantes’ evidence about subsequent events. There is no evidence that a meeting took place that day or at any later time at which Ms Kantor’s wellbeing was discussed.
Mr Nantes gave evidence that late in the afternoon or on the evening of 22 July 2019 he became aware of the skype exchanges between Ms Kantor and Mr Islam which are set out at para [23], [25] and [26] above. At this point in the narrative I will not explore the evidence regarding how and when Mr Nantes came into possession of these Skype messages, who was involved in that process and what Mr Nantes then did with the information. He was extensively cross-examined about these issues and my assessment of the evidence is more fully developed later in these reasons.
At 12:10pm the following day, 23 July 2019, Mr Nantes sent an email[33] to Ms Kantor in response to the email she had sent to him at 10:08pm on 17 July 2019. It will be recalled that in that earlier email Ms Kantor had expressed dissatisfaction with the investigation of the Lu incident and its outcome and expressed that she was now “adopting that complaint as her own”.
[33] AN-17
In his email to Ms Kantor, which was cc’d to Mr Beaumont and Ms Ho, Mr Nantes stated
“Hi michelle
I hope you are feeling better.
With regards to the below[34]:
· As I clarified for you in our meeting, I never stated that the information I collected from people included reference to Mat being on the phone to you. What I actually said was “when he finished talking to you” which you seem to have inferred as “being on the phone”. The statement I made about Mat talking to you was my interpretation of several pieces of information I had received about Mat talking to you via email with regards to a particularly difficult loan application. Whilst I clarified this for you in our meeting, to clarify again and for the avoidance of all doubt:, no one stated that Mat was on the phone to you in any of the statements made to me
[34] Referring to Ms Kantor’s 17 July 2019 email
However, I’m unclear what you mean exactly by the statement you are “adopting this complaint as your own”, and as such am not in a position to take any further action.
If you have any complaint to be made, you are welcome to do so, but I would ask you to confirm the exact particulars of this complaint so the Company can respond accordingly. You are welcome to do so directly to your line manager, to myself, or to May as HR representative.
I would like to take this opportunity to remind you how seriously Wisr takes all potential breaches of our policies, employment contracts and code of conduct.
Anthony”
Ten minutes later, at 12:20pm, Mr Nantes sent another email[35] to Ms Kantor, on this occasion, requiring her attendance at the Sydney office on Thursday 25 July 2019 at 2:30pm, for the purposes of participating in a meeting with Mr Nantes, Ms Ho and Mr Beaumont. The email states that Ms Kantor may bring a support person should she wish to do so. The email was silent as to why the meeting had been arranged. There is no evidence that Ms Kantor was informed in any other way about the purpose of the meeting.
[35] MK-9, CB 101; AN-2, CB 181
That evening at 9:28pm Ms Kantor responded with an email[36] of her own directed to Mr Nantes. The thrust of the email is directed to the company’s reluctance and failure to adequately address Ms Kantor’s earlier employment grievances, particularly her complaint about the Lu incident. Because of the significance of this communication as one of the alleged complaints (styled the “Sixth Employment Complaint”) underpinning the adverse action claim, it is reproduced in full below:
[36] MK-9, CB 100-101
“HI Anthony
Thank you for your email today. I appreciate you have had a week to reflect on things since our last catch up.
To clarify, me writing that I am adopting this complaint in my email last week meant that I am taking ownership of and have formerly lodged a complaint to you about an inappropriate comment Mat Lu made.
Anthony, when we sat at the cafe last Tuesday, I asked you what happened that day according to your investigations. You stated that you received statements from people saying that after Mat got off the phone with me, he made his comment. I then clarified with you 3 times that these people were able to hear Mat's comments clearly as they heard that it was clearly me on the phone. I then verified with you that as these people heard it was me on the phone, you then conclude they are then reliable witnesses to have heard what Mat's comment was. Each time, you said yes. Honestly, to suggest that I misinterpreted what you and I spoke about that day regarding this point is frankly demeaning and insulting.
As well as that, as the conversation went on, you stood up at the table and towered over me when I disagreed on points you claimed as being accurate. Considering this is a complaint of bullying and harassment, I find that extremely inappropriate and unprofessional.
On top of that - you had inaccurate information as to who was even involved that day and you haven't adequately questioned all people involved in the incident. I have a clear timeline of what happened that day. I have witness statements which in detail outline who was Involved. Times. Meetings. I know all particulars of that day including when Mat admitted to what was said and when you yourself acknowledged what was said.
Not only that, Andrew Goodwin gave out my personal number after a work event for non-work-related reasons without my permission. Never in my entire career has this ever happened and I find it horrendous as well as concerning for obvious reasons.
To be quite honest, the way the company has treated this entire situation is appalling.
-You forced me up to Sydney against my will to have a conversation about this incident which you laughed through - Corey can verify that.
-You gave a 24-hour turnaround time when, it was only when I went up to Sydney off my own volition 2 weeks later that you addressed the matter.
-You wrote an email in response to the incident which didn't address any issues that were raised in the meeting with me and Corey.
-You·then turned up to our coffee meeting 20 minutes late.
-Your investigations of that day are factually incorrect and when I didn't agree with you - you stood up and towered over me.
-You claim to take these issues quite seriously, when in fact, your actions - as stated above - reflect the opposite.
I will not be spoken to or succumb to you using methods of intimidation.
Since joining wisr, I have only performed to the benefit of the business. I have achieved 48% growth since last quarter and have maintained my professionalism throughout this entire situation. My expectation was a safe working environment.
I am happy to discuss a way forward with you however it won’t be on Thursday. I had tests done last week and am getting the results on Thursday with my GP. I am happy to arrange a skype chat where I will have a support person/s present.
Michelle Kantor”

At trial, and in circumstances which will be described later, it emerged during cross‑examination that Mr Nantes forwarded a copy of this email to Mr Beaumont and Ms Ho that night and informed them that he denied much of what Ms Kantor had alleged. That email communication was not put into evidence.
The following day Wednesday 24 July 2019 and into that evening Mr Nantes and Ms Kantor continued to exchange emails. First, Mr Nantes emailed[37] Ms Kantor suggesting that their meeting be conducted via Zoom at 11.00am the next day. Then Ms Kantor responds[38] to Mr Nantes’ email and confirms that she has been and will be working all week, but does not directly respond to Mr Nantes’ suggestion for an 11.00am meeting. Mr Nantes then thanks Ms Kantor for her email and confirms that the meeting will proceed at 11.00am the next day, stating that a follow-up meeting can be scheduled on Friday in the event that it is required.
[37] MK-9, CB 100
[38] MK-11, CB 112
By 8:59pm on Wednesday 24 July 2019 it appears that Ms Kantor was getting to the end of her rope. She sent an email to Mr Nantes stating that she had already advised him that she would not be attending the meeting the following day. She stated that she regarded emails from him at 9.00pm in the evening as inappropriate behaviour. Ms Kantor also complained about the way in which Mr Nantes had informed her of the meeting, for example, by failing to provide her with any context or agenda surrounding the meeting and by failing to explain its urgency. Ms Kantor reiterated that she was suffering from work-related stress. This email is pleaded as the applicant’s “Seventh Employment Complaint”.
On Thursday, 25 July 2019 Ms Kantor received yet another meeting invitation from Mr Nantes, on her evidence while she was attending a medical appointment. This communication rescheduled the meeting for 9.00am on Friday 26 July 2019.
On the Friday at 9.00am Ms Kantor attended a videoconference with Mr Nantes, Mr Beaumont and Ms Ho. An external legal representative, Mr Brett from the law firm Gilbert + Tobin also attended on behalf of the company. Mr Nantes gave evidence that Gilbert + Tobin had been engaged at about 9.40pm on the evening of 23 July 2019 shortly after he received the Sixth Employment Complaint email from Ms Kantor. Ms Kantor attended the videoconference with Mr Jacob Kantor, her brother, as her support person.
In his affidavit, Mr Nantes described this meeting as a telephone conference. Ms Kantor says that it was a videoconference but that Mr Nantes chose not to turn his camera on, meaning that she spoke to a blank screen. Ultimately, not a great deal turns on this. But what is not contested is that Ms Kantor had not been provided with any prior notice of the purpose of the meeting nor had she been informed that an external legal representative would be present.
At [21] of his affidavit Mr Nantes gives an account of what was said at the meeting. Ms Kantor gives her own summarised account at [46] of her affidavit. Mr Nantes conceded under cross-examination that he conducted the meeting according to a script provided for him by his legal advisers. Given the dialogue was essentially one-way, I consider the following to be a reliable version of what was said by Mr Nantes, albeit not an accurate reflection of Ms Kantor’s response:
Nantes:The purpose of today’s meeting is to address two instances of misconduct. They are your Skype messages at 2:12pm on Monday, 17 June 2019 where you sent Saj Islam a message using the words “I feel like punching someone”.
In a further Skype conversation with Saj Islam on 21 June, Saj messaged you using the words “I will uppercut them for u”. To which you replied at 4:11pm “lol yeah”.
The Company considers these communications to be inappropriate and a breach of your employment contract and Company policy and that this is not behaviour that the Company expects of any of its employees.
Firstly, clause 4.1.6 of your contract of employment requires you not to use Company resources to distribute offensive or inappropriate material.
Second, the Company’s Computer Use, Internet and Email Policy states that “Users are responsible at all times to use the Company’s computer resources in a professional, ethical and lawful manner”.
The Company considers that your use of Skype contravenes these obligations under your contract and Company policy.
Is there any information that relates to these two Skype messages that you would like us to consider.
Kantor: No, not right now
Nantes: Okay, we will adjourn this meeting and take some time to consider what disciplinary action will be taken, which may include but is not limited to the potential termination of employment. Contact will be made with you to advise of the final decision.
I accept Ms Kantor’s evidence that she was completely shocked by the allegations.
Ms Kantor gave evidence that when she was asked for her response, she said that she had only just been presented with the allegations and would need particulars of the allegations and time to respond. I consider this to be a more accurate description of her response, particularly having regard to Mr Nantes’ decision to adjourn the meeting and an email he sent to Ms Kantor later that morning where he provided Ms Kantor a table which set out the text of the Skype conversations “Further to your request”.
Shortly after the meeting, at 9:47am, Mr Nantes sent Ms Kantor an email[39] confirming the discussions which had just been held. The email is in almost identical form to the script Mr Nantes had read to Ms Kantor in the meeting. The email states that Ms Kantor had been asked if there was any information she wanted the company to consider and that she “elected not to provide any information”. Ms Kantor was again informed that contact would be made with her to advise of the company’s final determination. I infer from the evidence as a whole that this email was either prepared by the company’s legal advisers or substantially based on legal input.
[39] AN-3, CB 183
At 11:59am, in response to the applicant’s request for information, Mr Nantes sent an email[40] to Ms Kantor which attached a table of some skype transcripts, including an extract of message exchanges between Ms Kantor and Mr Islam on 17 and 21 June 2019, to which Mr Nantes had referred in the meeting that morning. Purportedly, the table was provided to show “the conversational context for the comments made on June 17 and June 21”. The email went on to state that the company would not be providing further conversation logs that do not relate to these comments.
[40] AN-4, CB 185-186
It is also to be noted that this email also sought to record a correction to the way the 21 June Skype messages had been presented at the meeting earlier that morning. In response to Mr Islam’s words “I will uppercut them for u”, it was noted that Ms Kantor had in fact said “you better”, not “lol yeah”.
Less than 4 hours later, at 3:50pm, Mr Nantes telephoned Ms Kantor and informed her that her employment with Wisr had been terminated for the reason of misconduct. Mr Nantes stated that the termination of her employment would take effect immediately and that the reason for the termination related to her use of the company’s Skype messaging platform to send offensive and inappropriate messages. Ms Kantor was informed that she would be paid her wages up to the end of that day, one week’s pay in lieu of notice and accrued but untaken annual leave entitlements.
Ms Kantor says that she was so shocked that all she could say was okay. Mr Nantes then hung up.
At 4:18pm Ms Kantor received an email from Ms Ho[41] which attached a letter titled “Your Employment with Wisr Finance Pty Limited”. The letter confirms that Ms Kantor’s employment with the company had been terminated for the reason of misconduct and that the termination of employment with the Company would take effect immediately. The letter goes on to state that the reason for the termination relates to Ms Kantor’s use of the Skype messaging platform to send offensive and inappropriate messages, being:
at 2:12pm on Monday, 17 June 2019 you sent Saj Islam a message using the words “I feel like punching someone”; and
in a further Skype conversation with Saj Islam on 21 June 2019, Saj messaged you using the words “I will uppercut them for u”, to which you replied at 4:11pm “you better”.
[41] Kantor Affidavit [50], CB 65
The termination letter identifies the provisions of the company’s computer use policy which had been referred to earlier in the day and the clause of Ms Kantor’s employment contract which prohibits the use of company resources to distribute offensive or inappropriate material. The letter went on to require Ms Kantor to return all company property and reminded her of her continuing obligations to the company including in respect of confidential information, intellectual property and restraints on future employment.
Although Ms Ho gave evidence that she drafted this letter on behalf of Mr Nantes, she conceded under cross-examination that it was prepared by or with guidance from the company’s lawyers.
The statutory scheme
It is not contested in these proceedings that the dismissal of Ms Kantor from her employment was “adverse action” for the purposes of s 342 of the FW Act.
Section 340(1) of the FW Act precludes “adverse action” being taken against another because, amongst other things, that person has exercised, or purported to exercise, a workplace right. It provides (relevantly):
340 Protection
(1)A person must not take adverse action against another person:
(a)       because the other person:
(i)        has a workplace right; or
(ii)       has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)      to prevent the exercise of a workplace right by the other person.
Note:  This subsection is a civil remedy provision (see Part 4‑1).
Section 341 defines the circumstances in which a person has a workplace right, including that:
(1)A person has a workplace right if the person:
…
(a)is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee—in relation to his or her employment.
Sections 360 and 361 facilitate proof by an applicant of a claim of adverse action.
Section 360 provides that, for the purposes of Pt 3‑1 of the FW Act, “a person takes actions for a particular reason if the reasons for the action include that reason”.
Section 361(1) creates a rebuttable presumption:
361 Reason for action to be presumed unless proved otherwise
(1)If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
The purpose of the rebuttable presumption is to throw onto respondents the onus of proving that which is peculiarly within their knowledge[42].
[42] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 at [50] (French CJ and Crennan J), citing General Motors–Holden’s Pty Ltd v Bowling (1976) 136 CLR 676; (1976) 12 ALR 605 at 617
In Alam v National Australia Bank [2021] FCAFC 178, the Full Court stated at [14] that 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: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 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: 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).
Issues for determination
The Court must consider, in light of all the evidence, whether the making of any one or more of the complaints alleged by Ms Kantor had been a substantial or operative reason for the termination of her employment.
In Alam the Full Court held that in order to discharge that task the Court is required to consider and make findings concerning whether:
(a)the applicant had made the complaints or inquiries she alleged;
(b)the complaints or inquiries found to have been made had the content the applicant alleged;
(c)the making of those complaints or inquiries constituted the exercise of a workplace right within the meaning of ss 340 and 341 of the FW Act; and
(d)the respondent employer had established, on the balance of probabilities, that none of those complaints had been a substantial or operative reason for the termination.
The Full Court in Alam held that there may be an exception to the approach described above. The Court at [24] said there may, for example, be cases in which the Court is positively satisfied that the actuating reason for the dismissal was the non‑proscribed reason alleged by the employer and that that reason was exclusive of all other reasons. The non‑proscribed reason may be so obvious and so serious as to overwhelm any other reasons and completely dispose of the applicant’s hypothesis that the dismissal was for a prohibited reason. Depending upon the circumstances, a finding to that effect may relieve a court from the necessity to consider the first, second and third elements in the approach suggested above. However, this is not such a case.
The applicant’s alleged complaints
Some specificity in the allegations is required in order to attract the application of s 361.
In this case the applicant contends that she was dismissed from her employment for the reason of or reasons which included the First Employment Complaint and/or the Second Employment Complaint and/or the Third Employment Complaint and/or the Fourth Employment Complaint and/or the Fifth Employment Complaint and/or the Sixth Employment Complaint and/or the Seventh Employment Complaint[43].
[43] Application at [18]
At the risk of repetition, the pleaded complaints are as follows:
(1)The First Employment Complaint comprises the verbal complaint made by Ms Kantor to Mr Beaumont on or around 8 June 2019 about Mr Goodwin providing her personal telephone number to a third-party;
(2)The Second Employment Complaint comprises the verbal complaint made by Ms Kantor to Mr Beaumont on 27 June 2019 stating that she was not listened to in her role;
(3)The Third Employment Complaint comprises the email sent by Ms Kantor to Mr Nantes on 27 June 2019 reiterating the substance of the Second Employment Complaint;
(4)The Fourth Employment Complaint was made during a phone call with Mr Nantes on 28 June 2019 where Ms Kantor said words to the effect “what was said [by Mr Lu] was disgusting and I will take it further because it is unacceptable”;
(5)The Fifth Employment Complaint was made on 2 July 2019 at a meeting in Sydney where Ms Kantor complained about the Lu Incident, the incident involving Mr Goodwin and her mobile phone number and other issues which she (and other BDMs) had raised previously, including about staffing and targets;
(6)The Sixth Employment Complaint is evidenced by an email sent by Ms Kantor to Mr Nantes on 23 July 2019 which contained a further complaint about the way that the Lu Incident and other matters had been handled by Mr Nantes and the company; and
(7)The Seventh Employment Complaint took the form of an email sent by Ms Kantor to Mr Nantes on 24 July 2019 in which she again complained about how the Lu Incident had been handled and that she was suffering from stress.
Characterisation of the Complaints or Inquiries alleged

The respondent has admitted that the applicant made the Seventh Employment Complaint in the terms alleged by Ms Kantor and that it was a complaint she was able to make for the purposes of s 341(1)(c).
Save for that admission, the respondent otherwise contends that each of the verbal and written communications said by the applicant to constitute the making of complaints in relation to her employment for the purpose of s 341(1)(c) were not, properly understood, of that character, with the consequence that the prohibition in s 340, let alone the rebuttable presumption in s 361, was not attracted.
This contest directs the Court’s attention to the pleaded complaints and the evidence in support of those complaints and calls for consideration of whether each of them or any of them constitute the exercise of workplace rights by Ms Kantor pursuant to s 341(1)(c) of the FW Act.
In Alam at [59] the Full Court said:
[59] In the context of s 341(1)(c), the term “complaint” connotes an expression of discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved: Cummins South Pacific at [13]. A complaint is more than a mere request for assistance and should state a particular grievance or finding of fault: Shea v TRUenergy at [579]‑[581]; per Dodds‑Streeton J. Her Honour continued, at [626]‑[627], by saying that it is unnecessary for the employee to identify expressly the communication as a complaint or grievance, or to use any particular form of words. Instead, what is required is a communication which, whatever its precise form, is reasonably understood in context as an expression of grievance and which seeks, whether or expressly or implicitly, that the recipient at least take notice of, and consider, it. The characterisation of a communication as a complaint is to be determined as a matter of substance, and not of form.
Complaints or inquiries that applicant was “able to make”
The respondent submitted that even if the alleged complaints or inquiries could be properly characterised as complaints or inquiries relating to Ms Kantor’s employment, they were not complaints or inquiries which she was “able to make … in relation to … her employment” for the purposes of s 341(1)(c).
This submission seeks to draw a distinction between a complaint on the one hand and a mere request for assistance or expression of frustration on the other. The distinction between a complaint and a request for assistance has been discussed in earlier authorities: Zhang v Royal Australian Chemical Institute Inc [2005] FCAFC 99, (2005) 144 FCR 347 at [36]‑[37]; and Hill v Compass Ten Pty Ltd [2012] FCA 761, (2012) 205 FCR 94 at [48].
It is generally accepted that acquainting a superior about concerns held about another employee or the organisation may or may not amount to a complaint, depending on the circumstances. To constitute a complaint of the requisite kind, an applicant needs to have at least raised a grievance in respect of which he or she sought assistance or some kind of consideration, relief or action. But even then a complaint made in the course of employment might not constitute the exercise of a workplace right if it is not adequately underpinned or founded upon a relevant right or entitlement.
In Alam the Full Court noted that the meaning of the expression “is able to make a complaint or inquiry” in relation to the employment in s 341(1)(c) has been the subject of divergent views. In seeking to reconcile those views, after surveying the authorities, the Court made the following observations:
(a)The complaints and inquiries to which the section refers are not confined to those which can be made to an external authority or to persons with the capacity to seek compliance with a legal obligation, but include complaints or inquiries made to the employer itself in relation to the person’s employment: Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908, (2013) 238 IR 307 at [141]‑[143] (Jessup J); Shea v TRUenergy at [600][44].
(b)Section 341(1)(c) was considered in some detail by Dodds‑Streeton J in Shea v TRUenergy. Dodds‑Streeton J considered that, for a complaint to be one which an employee is able to make, it must be underpinned by “an entitlement or right” of the employee. Her Honour’s reasons did not make clear the nature of the requisite “underpinning”, for example, whether it is the ability to make a complaint or inquiry which must be “underpinned” by an entitlement or right or whether it is the subject of the complaint or inquiry which must have that underpinning[45].
(c)In Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534; (2017) 275 IR 285, Collier J at first instance proceeded on the basis that a complaint or inquiry to an employer about an entitlement for which the contract of employment makes provision is within the scope of s 341(1)(c)(ii). Her Honour did not proceed on the basis that either s 341(1)(c) or Shea v TRUenergy required that the right or entitlement to make a complaint or inquiry be itself found in the contract of employment: it is sufficient if the complaint or inquiry relates to a subject matter for which the contract of employment makes provision[46].
(d)On the appeal (Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16; (2019) 268 FCR 46), the Full Court (Greenwood, Logan and Derrington JJ) at [28] described the statement of principle by Collier J in [33]‑[34] as “unremarkable and correct” and held that the pleaded complaint or inquiry in relation to a bonus constituted, for the reasons given by Collier J, the exercise of a workplace right for the purposes of the FW Act[47].
(e)Section 341(1)(c) was considered by the Full Court (Rangiah, Charlesworth and Snaden JJ) in PIA Mortgage. There Justices Rangiah and Charlesworth noted, at [13], that the statement of Dodds‑Streeton J that the complaint “must be underpinned by an entitlement or right” could refer to an entitlement or right to make a complaint or could encompass any complaint by employees concerning an entitlement or right related to their employment. Their Honours concluded, at [13]‑[14], that the former was the preferable understanding[48].
(f)However, Rangiah and Charlesworth JJ went on to give an expansive view of the nature of the right or entitlement which may form the basis of a workplace right to make a complaint or inquiry. Their Honours considered that an employee may have the requisite ability to make a complaint or inquiry not only by reason of a workplace law, a workplace instrument or an order made by an industrial body (being the source of the entitlements referred to in s 341(1)(a) and (b)), but also from legislative provisions which are not workplace laws, contractual terms providing a right to make complaints, and from the general law, at [16][49].
[45] Alam at [68] – [73]
[46] Alam at [74] – [75]
[48] Alam at [77] – [78]
[49] Alam at [79]
In Alam the Full Court expressed the view that the conclusion reached by Rangiah and Charlesworth JJ in PIA Mortgage seemed inconsistent with the reasoning of the Full Court in Whelan, including its endorsement of the statement of principle by Collier J. Whereas Whelan had not required that the right or entitlement to make a complaint or inquiry itself have an instrumental source, that is the construction preferred by Rangiah and Charlesworth JJ in PIA Mortgage, although, as noted, their Honours adopted an expansive view of the circumstances in which that right or entitlement may be found. Ultimately, the Full Court in Alam concluded:
“… While there is some difference between the principles endorsed by the Full Court in Whelan and the approach of the majority in PIA Mortgage, any difference in the application of those two approaches is unlikely to be significant.”[50]
“… It is possible, but in our view unlikely, that the legislative intention is that employees should be regarded as having the ability to make an “inquiry” in relation to their employment only when a right or entitlement to do so has been formally granted or acknowledged by some form of instrument. In our view, this points against a requirement that the ability to make a complaint or inquiry have itself an instrumental source.”[51]
[50] Alam at [94]
[51] Alam at [95]
At [97] the Full Court in Alam held:
“We consider that, irrespective of our own views concerning the proper construction of s 341(1)(c), this Court should proceed on the understanding of s 341(1)(c) indicated by the unanimous decision of the Full Court in Whelan. Doing so gives effect to the important principle of comity to which we have referred.”
Were each of the pleaded complaints an exercise of workplace rights?
In light of authority it is now appropriate to consider each of the pleaded complaints, in order to determine whether each or any of them constituted the exercise of workplace rights by Ms Kantor.
The First Employment Complaint
This alleged complaint was made on or about 8 June 2019 and concerned Mr Goodwin’s provision of Ms Kantor’s mobile phone number to a third-party at the finance industry event. It was a verbal complaint made to Mr Beaumont.
The fact of the complaint is admitted by the respondent,[52] but the respondent denies that it constituted the exercise of a workplace right.[53]
[52] Response paragraph 3, CB 18
[53] Response paragraph 17, CB 20
In her written outline of submissions filed prior to trial, the applicant contended that a source of her ability to make this complaint (and indeed all 7 complaints) in relation to her employment is section 21 of the Occupational Health and Safety Act 2004 (Vic) (‘the OHS Act’), which entitled the applicant to a working environment that is safe and without risks to health.
However, in opening, the foundation for the applicant’s first complaint was cast more broadly and was said to be underpinned by the respondent’s human resources policy which includes a corporate commitment to the protection of employee privacy and security of personal information. It was contended on behalf of the applicant that the disclosure of her personal telephone number (which she conceded was also used for business purposes) infringed her right to privacy, gave rise to a genuine grievance and legitimately entitled her to express that grievance in good faith and for a proper purpose. This contention was pressed in closing submissions.
Counsel for the applicant submits that the human resources policy[54] and its commitment to privacy appropriately founds an entitlement to raise a grievance where an employee believes that privacy to have been infringed.
[54] AN-1, CB 141
The respondent submits that the communication between Ms Kantor and Mr Beaumont about this issue was not a complaint that was sufficiently connected to an entitlement at law. It is submitted that the OHS Act was not a proper foundation for the complaint because objectively the issue did not raise any safety concerns and Ms Kantor did not say at the time that her physical or mental well-being had been placed in jeopardy.
Moreover, the respondent says that upon investigation the complaint was found to have no substance. Mr Nantes concluded that provision of Ms Kantor’s mobile number was a reasonable business exchange as it was part of Ms Kantor’s job to network with other industry participants. Ms Kantor’s personal phone number was also her work phone number and the company paid for the phone.
The applicant contends that whether or not the complaint was ultimately substantiated, is not to the point. Unless it is contended that the applicant acted in bad faith or that her grievance was not genuinely held, the issue is simply whether the applicant has complained about the conduct, not whether the complaint is substantiated after investigation. A finding that Mr Goodwin acted appropriately, does not disqualify the complaint from its legal status as an exercise of a workplace right.
In my view the First Employment Complaint was a complaint that Ms Kantor was able to make and it did constitute the exercise by her of a workplace right. As stated repeatedly by Mr Nantes in his evidence, Wisr is an organisation which welcomes complaints - indeed “any complaint, any time, any matter”[55]. In cross-examination Mr Nantes was directly asked whether he thought Ms Kantor had a right to raise a grievance if she felt her privacy had been infringed under the company policy, to which he answered “Absolutely. Correct”.
[55] Nantes XXN
That of itself does not mean that any complaint will constitute the exercise of a workplace right. But here I am satisfied that Ms Kantor was genuinely aggrieved that a manager had violated her privacy by providing her telephone number without her authority to another person at an industry dinner, as a consequence of which she received an unsolicited and unwelcome text message.
Her complaint to her manager Mr Beaumont was undoubtedly an expression of a grievance, in relation to her employment and in respect of which she sought redress or action, even if that be that it not be allowed to occur again. There may well be differences of opinion as to whether Mr Goodwin’s conduct was appropriate, but that is not to the point. The existence of a policy which is directed to protecting employee privacy is a sufficient basis for a complaint about a breach of privacy to be regarded as an exercise of a workplace right, even if that policy was not expressly referred to by the complainant.
The Second Employment Complaint
I do not hold the same view in relation to the Second Employment Complaint.
An expression of frustration about internal management, structural or operational issues is a common incident of life at any workplace. Voicing one’s exasperation or frustration at not being listened to in their role or failing to get sufficient cut-through to get a timely response from a colleague, another department or management is in many respects part and parcel of the ordinary workplace dynamic.
In this particular case, there was evidence of a tension between business development managers and operations, a tension resulting from enthusiasm for sales on one hand and the need for prudent assessment and compliance on the other. This kind of tension is probably productive of expressions of frustration from time to time as business carries on as usual.
In Wong v National Australia Bank [2021] FCA 671 Snaden J observed at [153] that:
“…not every interaction by which one person communicates to another the existence of some suboptimal state of affairs will qualify as a “complaint”, as that term is properly understood. Were it otherwise, any form of reporting that involves the conveying of objectively unwelcome news would suffice to qualify”[56] A complaint (distinguished momentarily from an inquiry) requires some expression of grievance by its maker, or some other subjective characterisation of the state of affairs to which it alludes as unsatisfactory, undesirable or unacceptable, as well as some communicated expectation (whether express or implicit) that something ought to be done to address it (be that by the person to whom the communication is directed or otherwise). It is that subjective characterisation that gives a communication the plaintive undertones that must be present in order to qualify it as a complaint.”
[56] see also The Environmental Group v Bowd, [2019] FCA 951at [122]-[123] (Steward J)
It is quite appropriate for an employee to voice dissatisfaction to their manager about operational bottlenecks or what they perceive to be unresponsive conduct by others. It is inevitable that an employee will lace such communications with a sense of grievance or fault‑finding. It is through the escalation of such issues and concerns that management can be prompted to take action, to clear bottlenecks and find operational efficiencies. Indeed, it is a necessary incident of any functioning organisational hierarchy that operational grievances are raised with one’s superior.
In cross-examination Mr Beaumont said that he had regular conversations with Ms Kantor about work-related matters. He said he could not recall all these interactions but they formed part of the ebb and flow of communications which are aimed at improving things. He described these day to day discussions as “business as usual”, a description I consider to be fitting.
Whilst the pleaded Second Employment Complaint bears the attributes of a complaint in the colloquial sense, it was not a complaint in the sense understood by s 341(1)(c) of the FW Act.
I agree with the respondent that Ms Kantor had no entitlement at law for a fast response to her queries or to be listened to in her role. On the evidence, the applicant did not tether this complaint to her own pay or conditions - although I accept she may have had in mind that the unresponsiveness of others might reflect in the assessment of her own performance. None of the matters in this pleaded complaint involved matters of right or entitlement and none of them concerned protections or obligations owed by Wisr. Although Ms Kantor undoubtedly felt that she had good reason to raise the issue with her manager, it does not follow that her complaint was underpinned or founded upon a right or entitlement in the requisite sense.
I do not consider that the Second Employment Complaint constituted the exercise of a workplace right.
The Third Employment Complaint
Nor do I consider that the Third Employment Complaint constituted the exercise of a workplace right, for the reasons articulated in the previous paragraphs.
The fact that Ms Kantor felt that she was a voice in the wilderness in the context of what she considered to be an urgent and pressing business opportunity, does not fundamentally alter the character of the grievance. Nor does the escalation of her complaint to the CEO give the grievance the status of a complaint Ms Kantor was able to make in FW Act terms.
By the time Ms Kantor sent her email to Mr Nantes, she was no doubt more frustrated than she was when she first raised the operational issue with Mr Beaumont. I accept that by engaging with Mr Nantes, Ms Kantor was looking for a higher level of intervention and possibly a longer term solution to what she perceived to be organisational shortcomings and lack of responsiveness by others. However, I do not accept that this communication was other than an unremarkable business-as-usual exchange and I expect it was received by Mr Nantes in that spirit.
Counsel for the applicant submitted that Ms Kantor’s contract of employment expressly included a performance based component and that the company’s human resources policies expressly confer upon employees a right to pursue grievances. It was submitted that as the complaints were in relation to Ms Kantor’s employment, these instruments provide a sufficient underpinning for Ms Kantor’s complaint to constitute the exercise of a workplace right.
Furthermore, counsel submitted that it is not necessary in any event for an employee in the course of making a complaint to identify directly or even indirectly the source or the foundation of the entitlement to make the complaint. It is submitted that as long as the employee’s expression of discontent seeks consideration or redress or relief, there is no particular format for the making of the complaint or requirement to identify the instrumental underpinning.
I accept the correctness of the submission that a complaint, in its making, does not require the identification of the source or entitlement upon which it is founded. But it must be so underpinned, whether that is communicated to the recipient or not.
Objectively, the Second and Third Employment Complaints do not in my opinion rise above an expression of frustration about organisational workflow and the way work is performed. Although the complaints do relate to Ms Kantor’s employment and the tasks she was required to perform in her role, the complaints do not arise from nor are they founded upon the rights and entitlements Ms Kantor enjoys pursuant to her contract of employment or otherwise at law. There is no right to optimal frustration-free employment. If the complaint had been cast in a different fashion, for example as a complaint that she had been denied a bonus by the inaction of others, it might have been the exercise of a workplace right. But here, on the evidence, the complaint was not of that character.

I accept the evidence that Mr Nantes routinely gave a presentation to new employees and that it was most likely attended by Ms Kantor. I also accept that the issue of workplace culture featured in that presentation and that it was likely Ms Kantor sat through a PowerPoint presentation. I also accept that Mr Nantes was trying to build a positive workplace culture and that these considerations may have factored into his decision to terminate Ms Kantor. I have taken these matters into account in my consideration of the evidence as a whole.
Was the CEO welcoming of complaints?
The respondent submits that the Court should reject the hypothesis that Ms Kantor’s complaints were a reason for dismissal because Mr Nantes has no problem with complaints and in fact encourages them. The respondent points to Mr Nantes’ evidence that he welcomed complaints, any complaint, any time, any matter.
The essence of this submission is that because Mr Nantes was not irritated or annoyed by complaints, it should follow that he was not predisposed to terminate an employee for making a complaint.
It is not necessary in a general protections case for an applicant to prove more than that a complaint was made. It is not necessary to establish that the complaint irritated the employer, although evidence to that effect might support an inference that subsequent adverse action was retribution.
The Hypocrisy reasoning
An element of the respondent’s reasoning leading to dismissal was Mr Nantes’ conclusion that Ms Kantor by her words and conduct was a hypocrite. Closing written submissions of the respondent described this as a further aggravating feature to Ms Kantor’s misconduct. At [12] of those submissions, counsel for the respondent notes that several weeks prior to the dismissal, Ms Kantor had strongly and unreservedly expressed her “disgust and disapproval” about Mr Lu’s alleged conduct. In the course of investigating the Lu allegation, Ms Kantor had reiterated to Mr Nantes that Mr Lu’s use of language was inappropriate on any level, disgusting and that talking about physical violence anywhere in the workplace was unacceptable and that there would be no context in which it would be acceptable.
As I have mentioned previously, Mr Nantes’ own evidence is that when he became aware that Ms Kantor had used similar language on Skype, two things occurred to him. First, that Ms Kantor understood the importance of not using threatening words in the workplace. That is, she knew better. Secondly, that “there was an element of hypocrisy to her approach. It was unreasonable of her to demand a certain standard of behaviour in the workplace but not live up to her own standard. If she held others in the workplace to a standard that she did not herself live up to, then that would undermine workplace cohesion. It would cause friction.”
In final submissions the connection between Ms Kantor’s complaint and Mr Nantes’ decision to terminate her on the basis that she was, among other things, a hypocrite was undisguised. Counsel for the respondent said that when Mr Nantes discovered the Skype messages with the word “punch” and “with Ms Kantor’s words from weeks earlier ringing in his ears”[85], Mr Nantes decided that she was not someone he wanted around.
[85] Transcript P-27, 1 Dec 2021
Counsel for the applicant submits that Mr Nantes’ own reasoning reveals the engagement of a prohibited reason in his decision to dismiss Ms Kantor. It is submitted that the hypocrisy argument is infused with unlawful adverse action reasoning. Indeed it is submitted that if the evidence about this reasoning is accepted it must make out Ms Kantor’s case.
The respondent rejects an unlawful causal connection between the applicant’s complaint and the decision to dismiss. The respondent’s case is that Mr Nantes uncovered the Skype messages and drew from those messages conclusions about her suitability as an employee. The respondent submits that the hypocrisy conclusion was not drawn because of any complaints made by Ms Kantor, rather it was a conclusion drawn from her conduct in the BHP Coal sense. It is submitted that whatever went on before the discovery of the messages did not seep into the decision-making process.
In my opinion the hypocrisy conclusion, which formed part of the reasons relied upon, is indeed a problem for the respondent’s case. What went on before, particularly Ms Kantor’s expression of disgust and disapproval regarding Mr Lu’s alleged conduct, not only seeped into Mr Nantes’ decision-making but it informed the view he reached about Ms Kantor.
As a matter of logic Ms Kantor’s complaint about Mr Lu’s conduct is foundational to the CEO’s belief that she was hypocritical in her own conduct. Had she not made a complaint about Mr Lu’s conduct and described it as she did in her comments to Mr Nantes, he would have had no basis for forming the view that she was a hypocrite and someone who was not prepared to abide by the standards she expected of others.
The hypocrisy element of Mr Nantes’ reasoning is founded upon Ms Kantor’s complaint about Mr Lu’s alleged conduct. It was not a mere inconsistency between a general statement of belief by Ms Kantor and her alleged actions. Her objection to the use of violent language in the workplace was given voice in her complaints to Mr Nantes about Mr Lu.
The hypocrisy conclusion was a material element in the decision to terminate Ms Kantor’s employment. By advancing hypocrisy as one of the reasons for dismissal, the respondent traces the reasoning to the source of the hypocrisy, being the statements made by Ms Kantor in the context of her exercising workplace rights.
Inconsistencies in the reasoning
Contrary to the respondent’s submissions, Mr Nantes has not been consistent about his reasons for the decision to terminate Ms Kantor.
The objective documentary evidence points to the content of the Skype messages as the subject matter for the conclusion that Ms Kantor engaged in misconduct. All the communications with Ms Kantor after the alleged discovery of the skype messages utilised the language of misconduct, as did the letter of termination. The cross-examination of Mr Nantes only caused him to double-down on misconduct as the reason for dismissal.
The respondent never raised any concerns about a “breakdown in trust” with Ms Kantor prior to her dismissal. None of the matters about which Mr Nantes allegedly turned his mind after discovering the Skype messages were raised with Ms Kantor. The reasons advanced at trial were not pleaded out in the response.
The issue of Ms Kantor being a probationary employee did not feature in the pleaded response or in any of the objective background evidence. It only rose to prominence in Mr Nantes’ affidavit and in the respondent’s submissions.
The evidence does not support a finding that Mr Nantes engaged in a considered and measured assessment of Ms Kantor’s suitability and competence as a long-term employee or her fit within Wisr’s organisational culture. Rather, the evidence points to an urgently effected dismissal, premised on misconduct.
Observations about the evidence
Counsel for the applicant submitted that Mr Nantes was an unsatisfactory witness who gave meandering answers and travelled to matters which supported his case rather than engaging with the questions asked of him. In relation to some aspects of his evidence the submission has weight.
The duty of a witness to answer questions includes not only the positive duty to proffer all material within the witness’s knowledge for which the question calls, but also a negative duty not to volunteer material for which the question does not call[86].
[86] Kuhl v Zurich Financial Services Aust Ltd (2011) 276 ALR 375 at [62]
As discussed above, cross-examination unearthed detail about important events which had not or had hardly been touched upon in Mr Nantes’ affidavit. For example, Mr Nantes’ coffee shop meeting with Ms Kantor on 17 July 2019, despite it featuring in the applicant’s evidence and being referred to in one of her complaints. Only under cross-examination did Mr Nantes endeavour to explain how the Skype messages were brought to his attention and the role played by his CTO Mr Chisolm. It was only in cross-examination that evidence emerged of his communication with Mr Beaumont and Ms Ho after the receipt of the Sixth Employment Complaint. There are other examples.
Under cross-examination Mr Nantes did not always engage with the questions that were asked of him. His answers were sometimes preceded by long pauses and responses were used as a vehicle to make points favourable to his case. On occasion his responses struck me as somewhat rehearsed. On other occasions, he sought to revisit and clarify his answers or to explain documents when they appeared unhelpful to his case.
There were also occasions during the course of cross-examination where Mr Nantes seized opportunities to press his narrative, even where that was not responsive to questions. For example, he was at pains, time and again, to infuse into his answers comments about Ms Kantor’s excellent commercial output, her commercial value to the business and the commercial loss suffered by the organisation by reason of these regrettable events[87]. The repetition in this message over time diluted its persuasive force.
[87] e.g. Transcript P-88-89, P-100, P-103, P-107
At times Mr Nantes recollection of events was uneven, particularly around the circumstances of the Skype messages. On other occasions Mr Nantes displayed a confident recall of dates and times and an uncanny capacity to direct his inquisitor to pages in the court book and exhibit references to reinforce his answers.
A troubling aspect of Mr Nantes’ evidence was the revelation, during cross-examination, that he had a document before him in the form of an annotated chronology referencing certain key events. The applicant submitted in closing that Mr Nantes’ evidence was tainted by this document and that its existence explained his capacity to navigate exhibits and documents and the court book. It was submitted that this document contaminates the reliability of the viva voce evidence that he gave.
Counsel for the respondent submitted that Mr Nantes’ use of notes was inadvertent and that it was a consequence of the hearing being conducted online. He submitted that nothing turns on this issue.
When this issue arose during cross-examination, Mr Nantes conceded that he had a document on another screen but he described it as simply a copy and paste of relevant sections of his affidavit, which he had put in a more chronological order. However, when a copy of the document was produced after a call for it by counsel for the applicant, it became clear that it was not merely a cut and paste at all. For example, it included references to events and documents which had not even been mentioned in his affidavit, such as the sending of an email to Mr Beaumont and Ms Ho at 9:41pm on 23 July 2019.
The revelation that Mr Nantes had access to notes as an aid is problematic in a case where viva voce evidence is a window through which the Court enters the mind of the decision-maker. The reliability of the decision-maker’s evidence is critical to the Court’s assessment of his reasoning. The notes served as an aid for the witness and potentially as a reference guide for the chronology he presented to the Court. On reflection, it is evident that where Mr Nantes did not have notes which addressed a particular issue, such as how and when and in what form the skype messages were presented to him and what spreadsheets and documents were produced for his consideration, his recall was nowhere near as sharp and his evidence was less certain.
I do not find that Mr Nantes sought to mislead the Court, but his use of notes does not instil confidence in his independent recollection of events. I found it somewhat surprising, as the sole decision-maker, that Mr Nantes would need an aid to remind himself of the sequence of events leading to Ms Kantor’s dismissal. The use of notes goes some way to explain my early sense that some of his answers in cross-examination appeared rehearsed.
Ms Kantor weathered cross-examination more effectively. She answered questions in a straightforward and concise manner and made appropriate concessions including that there were matters she could not recall[88]. Her evidence was largely consistent with the narrative presented by the documentary evidence.
[88] Such as the detail of her induction presentation, the content of various power point slides and the induction speech given by Mr Nantes
That said, Ms Kantor presented as a rather determined witness and she was quite forceful in her responses to questioning when challenged. I imagine Ms Kantor would have been a strong advocate for her interests during employment and her presentation as a witness was consistent with the impression one gleans from the tone and content of her email exchanges.
Conclusion as to the reasons for dismissal
The respondent’s case does not reveal a consistent story.
The initial reason advanced to justify the dismissal was misconduct and breach of company policies as set out in the letter of termination and in the oral and written communications with Ms Kantor.
However, subsequently and at trial that reason was refashioned. At the time of preparing his affidavit, Mr Nantes placed less emphasis on the threatening language in the Skype messages and gave a more crafted response, embracing a reasoning process which involved measured consideration of Ms Kantor’s status as a probationary employee, her poor judgement and attitude, inability to control emotions, inappropriate use of technology, poor cultural fit and his loss of trust and faith in her.
In final submissions, the respondent pressed this thesis and presented the respondent’s reasons as being about more than just the Skype messages. In his final address, counsel for the respondent said that the word “misconduct” should really be read as “unprofessional”.
However, that submission sits uncomfortably with the strong language used by Mr Nantes, including during cross-examination, when he described his response to Ms Kantor’s Skype messages.
Under cross-examination, Mr Nantes returned strongly to the misconduct narrative. He repeatedly described the Skype messages as “inappropriate and serious misconduct”[89]. He said that he construed Ms Kantor’s language as “threatening physical violence in the workplace”. He said that threatening physical violence in the workplace was serious misconduct and that there was no context in which threatening physical violence in the workplace was anything but serious misconduct[90]. In respect of that last remark, it was notable that Mr Nantes adopted the language of Ms Kantor’s own objections about Mr Lu’s conduct, as voiced in her Fourth and Fifth Complaints.
[89] Transcript P-98-99
[90] Transcript P-99
Mr Nantes’ description of the Skype messages escalated as cross examination continued. He said the skype messages were documented evidence of Ms Kantor threatening physical violence in the workplace. He described Ms Kantor’s language as inappropriate, abusive and at “such a misconductual level that it warranted immediate dismissal”. He explained that because of the health and safety of other employees in the organisation, he had to deal with the matter quickly to terminate someone who was threatening physical violence.
Then, when describing his reaction to Ms Kantor’s words “you better” in response to Mr Islam’s message, Mr Nantes described them as extremely offensive and amounting to inciting violence against fellow employees. He said he interpreted her words as encouraging Mr Islam to commit an act of violence. Mr Nantes said that he was concerned that Mr Islam sat within reach of several other employees, that he had made a threat of physical violence and that Ms Kantor was inciting him to carry it out[91]. Mr Nantes considered that to be a very very serious matter and warranting instant dismissal.
[91] Transcript P-107-108
Repeatedly, in response to questions about Ms Kantor’s Skype messages, Mr Nantes embraced the language of physical violence and incitement to violence, adding that her conduct was such an imminent threat to the health and safety of other employees that it was serious misconduct warranting instant dismissal.
The respondent’s reasons for dismissal must of course be considered through Mr Nantes’ subjective lens. But when tested, the narrative of loss of trust, loss of faith, probationary employment and poor cultural fit was overshadowed, if it got a look in at all. Mr Nantes retreated to the misconduct narrative, elevating it to extremely serious misconduct for which only summary dismissal was appropriate. It was not the careful reflective reasoning articulated in his affidavit nor was it the case advanced at trial.
Taken as a whole Mr Nantes evidence did not reveal a consistent coherent explanation of his reasoning. Taking into account all of the evidence, neither the “misconduct” narrative nor the “loss of trust” explanation persuade me to exclude Ms Kantor’s exercise of workplace rights as an operative reason for her dismissal.
The decision to dismiss Ms Kantor was not in my view based upon the seriousness of the Skype messages at all. The inherent unlikelihood of an experienced and capable business leader holding the view that the Skype messages justified immediate dismissal casts doubt on whether that conduct alone was the only reason for the decision.
Ms Kantor’s complaints about Mr Lu’s conduct set in motion a train of enquiry which led to the discovery of the Skype messages. The connection between Ms Kantor’s complaints and the Skype messages was revealed in cross-examination where Mr Nantes said:
“… What I’m saying is if on one hand she’s in multiple forums saying that she understands that there is no context in which it is appropriate to make threats of physical violence in the workplace repeatedly, and then she herself makes threats of physical violence and incites others to undertake physical violence, then that’s a serious issue”
On my assessment the evidence reveals that a substantial and operative factor in the decision-making process was Mr Nantes’ reflection upon Ms Kantor’s complaints about Mr Lu’s conduct and her stance in relation to Mr Nantes’ investigation of that conduct. Her Fourth and Fifth complaints about Mr Lu ultimately informed Mr Nantes’ conclusion that Ms Kantor was a hypocrite. Ms Kantor’s later Sixth complaint about Mr Nantes’ investigation of the Lu incident, his failure to take action and his alleged intimidation of her would only have aggravated his sense of incredulity about Ms Kantor’s hypocrisy.
There are two ways of looking at the causal connection between the complaints and the decision to dismiss. On one view Mr Nantes discovered the Skype messages and in light of the principled stand taken by Ms Kantor in relation to Mr Lu’s complaint, he decided that those messages revealed her to be a hypocrite, a reason which factored into the decision to terminate. Alternatively, Mr Nantes discovered the Skype messages and then formed the view that her earlier complaint about Mr Lu’s conduct was an act of hypocrisy itself, justifying dismissal.
Either way, Ms Kantor’s complaints about Mr Lu and his conduct was integral to the decision to terminate. The substance of those prior complaints caused Mr Nantes to judge the Skype messages more harshly and to act opportunistically and with greater force than would have been the case had those complaints never been made. I am not satisfied on the evidence that the respondent has proven otherwise.
While it is argued by the respondent that Mr Nantes encouraged and welcomed complaints and was not irritated by them, in my opinion that was not a universal truth.
It seems to me that Ms Kantor’s complaints about Lu’s conduct (Fourth and Fifth Employment Complaints) and in particular her refusal to let go of the issue (17 July 2019 coffee shop meeting and Sixth Employment Complaint) became an increasing source of frustration for Mr Nantes. That Ms Kantor would not let go of her grievance even after it had been investigated by Mr Nantes and found not to have been substantiated did cause tension, as evidenced by Ms Kantor’s description of the coffee shop meeting on 17 July 2019.

Furthermore, Ms Kantor’s criticism of Mr Nantes’ investigation of her complaint and her determination to press the matter more formally was likely to have been a particular trigger for Mr Nantes when he discovered that Ms Kantor, contrary to her own righteous indignation, had used the word “punch” herself.
I do not accept the submission that Mr Nantes had decided to dismiss Ms Kantor on 22 July 2019 (or the morning after) and that the Sixth and Seventh Employment Complaints could not have affected the decision to dismiss. On the evidence, while Mr Nantes had discovered the Skype messages and a premise for her termination by 22 July 2019, he initially only formed a qualified intention to dismiss Ms Kantor. On my assessment, it is likely that the Sixth Employment Complaint, sent on the evening of 23 July, sealed Ms Kantor’s fate.
I am satisfied the decision to dismiss Ms Kantor was made before the Seventh Employment Complaint. That complaint was not a reason for her dismissal.
I accept that the CEO may ultimately have lost trust and faith in Ms Kantor and that he subjectively believed that she would not be a good fit for the workplace culture he was seeking to promote. However, in my view, those conclusions were informed, at least in part, by Ms Kantor’s exercise of workplace rights.
Relief
Ms Kantor seeks compensation for the economic and non-economic loss suffered by reason of the adverse action taken against her.
Loss of chance of ongoing employment
Ms Kantor’s evidence included Particulars of Loss[92], which included details of claimed losses of income, superannuation, lost commissions and the opportunity to earn future commissions and lost shares which would have accrued over time. The particulars also set out efforts taken by Ms Kantor to mitigate her loss, including by making numerous applications for alternative employment.
[92] Exhibit A1
The applicant submits that she should be awarded an amount in respect of loss of income as a result of the dismissal, which she assesses at $41,785.73, representing 25.14 weeks at her base rate of $1,730.77 ($90,000 pa/52), less one week payment she received on termination. She also seeks a payment of superannuation, calculated at 9.5% of the lost income, being $3,969.64.
Ms Kantor says that in addition to the lost base income, she would have earned approximately $8,000 in commissions per quarter and she would have been entitled to shares over time.
In its final written outline of submissions the respondent denies that Ms Kantor is entitled to relief but submits that compensation, if awarded, should be calculated at the rate of her ordinary salary i.e. $90,000 per year. It is submitted that there is no evidence of shares or commissions earned or likely to be earned. The respondent contends that any entitlement to shares was linked to long term employment only.
Ms Kantor is entitled to compensation for loss suffered as a consequence of the dismissal.
Absent the exercise of her workplace rights in making the Fourth, Fifth and Sixth Employment Complaints, I am not satisfied that Ms Kantor would have been dismissed on the strength of the Skype messages alone. I consider it more likely that she would have been dealt with under the respondent’s discipline process and, after consideration of any response she may have given, she would probably have been subjected to an outcome short of dismissal or perhaps no sanction at all.
The contract of employment could be terminated by either party on one month’s written notice. However, at the time of dismissal Ms Kantor was still within the probationary period and the contract was terminable in writing with immediate effect “if the Company determines that you have not met our performance requirements”. While I must take into account that it was open to the company to terminate Ms Kantor’s employment contract during the probation period for reasons, other than prohibited reasons, I give weight to Mr Nantes evidence that Ms Kantor was a highly skilled and high performing employee, evidence which suggests that she most likely would have continued in employment beyond the end of the probationary period.
Given her relatively short employment and her level of disenchantment about management and internal operational matters I cannot infer that Ms Kantor would have enjoyed long-term secure employment or that she would have remained in employment at Wisr indefinitely. However, given the evidence about her financial performance, I am satisfied she would have remained employed for at least 6 months, which is slightly longer than the period in respect of which loss is claimed.
Accordingly, I have determined that Ms Kantor should be awarded lost income and superannuation, calculated on her base pay rate of $90,000. She should be paid $41,785.73 for lost income and a superannuation contribution of $3,969.64. Interest should be paid on these amounts.
Non-economic loss
Ms Kantor also seeks a payment in respect of non-economic loss to be assessed by the Court. Her evidence was that the dismissal had a severe impact on her mental health and well-being, but the claim is not supported by any medical evidence. Ms Kantor puts her claim at $20,000 and submits that the absence of medical evidence should be no impediment to the Court exercising its discretion in her favour[93].
[93]Collison v Brighton Road Enterprises Pty Ltd (No 2) [2016] FCCA 1798 at [58]; Ho v Ngo [2021] FedCCFamC2G 127 at [31]
In the absence of medical evidence, I am not inclined to Ms Kantor’s claim. I am satisfied that her dismissal would have given rise to distress and an adverse impact on her mental well-being, but it did not greatly limit her ability to re-enter the job market, actively pursue other opportunities and secure another position within a few months. I consider an amount of $7,000, which equates to about 1 months’ pay, is appropriate compensation for this element of her claim.
Declaration
I propose to make the declaration sought by the applicant, namely that the respondent has breached s 340 of the Fair Work Act 2009 (Cth) by dismissing Ms Kantor from her employment on 26 July 2019.
Penalties
Ms Kantor seeks the imposition of pecuniary penalties for breaches of the FW Act.
In accordance with the usual practice of this Court, the parties will be heard on the issue. This proceeding will be listed for directions on a date to be fixed in order to timetable the filing of evidence and submissions on the question of penalties.
Disposition
I find that the respondent dismissed the applicant on 26 July 2019 for the reason or reasons which included her exercise of workplace rights.
The applicant is entitled to compensation for economic and non-economic loss, a declaration and a right to seek penalties in respect of the contravention.
Any application for costs should be made within 14 days.
The parties’ legal representatives are to confer with a view to bringing in orders which give effect to these reasons for judgment within 7 days. In the event no agreement can be reached, each party should provide my chambers with a proposed order and the Court will make the orders it considers appropriate.

I certify that the preceding three hundred and forty (340) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes.
Associate:
Dated: 12 September 2022

[44] Alam at [65]

[47] Alam at [76]

File number:	MLG 3706 of 2019
Judgment of:	JUDGE FORBES
Date of judgment:	12 September 2022
Catchwords:	FAIR WORK – adverse action – dismissal because of alleged exercise of workplace rights – whether complaints were complaints that the applicant was able to make – whether complaints an exercise of workplace right – employer’s reasons for dismissal – whether employers stated reasons determinative – consideration of all the evidence – whether presumption of prohibited reason rebutted – reverse onus not discharged by employer – applicant entitled to compensation
Legislation:	Fair Work Act 2009 (Cth), s 340, 341, 342, 360, 361
Cases cited:	Alam v National Australia Bank [2021] FCAFC 178 BHP Coal v CFMEU (2014) 253 CLR 243 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 CFMEU v Endeavour Coal (2015) 231 FCR 150 Collison v Brighton Road Enterprises Pty Ltd (No 2) [2016] FCCA 1798 Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 Hill v Compass Ten Pty Ltd [2012] FCA 761, (2012) 205 FCR 94 Ho v Ngo [2021] FedCCFamC2G 127 Kuhl v Zurich Financial Services Aust Ltd (2011) 276 ALR 375 The Environmental Group v Bowd, [2019] FCA 951 Wong v National Australia Bank [2021] FCA 671 Zhang v Royal Australian Chemical Institute Inc [2005] FCAFC 99, (2005) 144 FCR 347
Division:	Division 2 General Federal Law
Number of paragraphs:	340
Date of last submissions:	1 December 2021
Date of hearing:	3 - 4 November 2021
Place:	Melbourne
Counsel for the Applicant:	Mr Miller
Solicitor for the Applicant:	McDonald Murholme
Counsel for the Respondent:	Mr Manos
Solicitor for the Respondent:	Gilbert + Tobin

MLG 3706 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MICHELLE KANTOR Applicant
AND:	WISR FINANCE PTY LTD Respondent

order made by:	JUDGE FORBES
DATE OF ORDER:	12 sEPTEMBER 2022