Lees v Asaleo Personal Care Pty Ltd - [2021] FedCFamC2G 347

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Lees v Asaleo Personal Care Pty Ltd [2021] FedCFamC2G 347

File number(s): MLG 2194 of 2020

Judgment of: JUDGE RILEY

Date of judgment: 10 December 2021

Catchwords: INDUSTRIAL LAW – adverse action claim – whether being presented with a draft performance improvement plan and being dismissed constituted adverse actions for prohibited reasons – whether there were breaches of an employment contract by not conducting formal annual performance reviews after 2016 and not establishing a short term incentive plan in 2018 – whether the applicant’s position was made redundant.

Legislation: Fair Work Act 2009 (Cth), ss 119, 340, 341, 342, 360 and 361

Cases cited:
Alam v National Australia Bank (2021) 393 ALR 629; [2021] FCAFC 178

Construction, Forestry, Mining and Energy Union (CFMEU) v Coal and Allied Operations (1999) 140 IR 131; [1999] FCA 1531

Community and Public Sector Union v Telstra Corp Ltd (2001) 107 FCR 93; (2001) EOC 93-134; (2001) 104 IR 195; [2001] FCA 267

Cigarette and Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46); (2019) 285 IR 290; [2019] FCAFC 16

Finance Sector Union of Australia v Commonwealth Bank of Australia (2001) 111 IR 241; [2001] FCA 1613

Gamboni v Bendigo and Adelaide Bank Ltd (2013) 39 VR 578; [2013] VSCA 92

General Motors-Holdens Pty Ltd v Bowling (1976) 12 ALR 605; (1976) 51 ALJR 235

Guerinoni v Synthes Australia Pty Ltd [2016] FCCA 1710

Kimpton v Minister for Education of Victoria (1996) 65 IR 317

Klein v Metropolitan Fire and Emergency Services Board (2012) 208 FCR 178; [2012] FCA 1402

Mackay Taxi Holdings Ltd t/a Mackay Whitsunday Taxis v Wilson (2014) 240 IR 409; [2014] FWCFB 1043

McAlister v Yara Australia Pty Ltd (2021) 307 IR 300; [2021] FCCA 1409

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; (1998) 153 ALR 643; (1998) 72 ALJR 873; [1998] 8 Leg Rep 2; (1998) 27 ACSR 535; (1998) 16 ACLC 1041; (1998) 79 IR 339; [1998] HCA 30

PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225; (2020) 292 IR 317; [2020] FCAFC 15

Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244; [2012] FCAFC 63

Shea v TRUenergy Services Pty Ltd(No 6) (2014) 314 ALR 346; (2014) 242 IR 1; [2014] FCA 271

Unsworth v Tristar Steering and Suspension Australia Ltd (2008) 216 FCR 122; (2008) 175 IR 320; [2008] FCA 1224

Division Division 2 General Federal Law

Number of paragraphs: 154

Date of last submission/s: 16 November 2021

Date of hearing: 14 and 15 October 2021

Place: Melbourne

Counsel for the applicant: Rohan Millar

Solicitor for the applicant: McDonald Murholme Solicitors

Counsel for the respondent: Leigh Howard

Solicitor for the respondent: Clayton Utz
ORDERS

MLG 2194 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
Stuart Lees
Applicant

AND: Asaleo Personal Care Pty Ltd (ACN 005 442 375)
Respondent

ORDER MADE BY:

JUDGE RILEY

DATE OF ORDER:

10 December 2021

THE COURT DECLARES THAT:
1.The respondent contravened s.340 of the Fair Work Act 2009 (“the Act”), by taking adverse action against the applicant for a prohibited reason by:
a.presenting to him a performance improvement plan on 3 March 2020; and
b.dismissing him from his employment on 11 March 2020.

2.The respondent breached its contract of employment with the applicant by not conducting formal annual performance reviews after August 2016.

Note: The form of the order is subject to the entry in the Court’s records.
Note:This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
JUDGE RILEY:
INTRODUCTION

This is an adverse action claim brought under the Fair Work Act 2009 (“the Act”), as well as a claim for a redundancy payment and a claim for breaches of contract. The breaches of contract were said to be not giving the applicant (“Mr Lees”) annual performance reviews or the opportunity to obtain a bonus pursuant to a Short Term Incentive Plan (“STIP”).
Mr Lees was employed by the respondent (“Asaleo”) as a Strategic Category Manager in 2014. He was later promoted to be a Sourcing Manager. Asaleo is a company which makes toilet paper and menstruation products. Mr Lees’ role required him to, amongst other things, procure raw materials, such as wood pulp.
Mr Lees was regarded as a good and valuable employee until July 2019. In March 2019, Asaleo sold part of its business. In July 2019, Asaleo decided to restructure its procurement function. Mr Lees proposed a restructure in which he would be promoted. On 12 July 2019, Asaleo told Mr Lees that it did not accept his proposal, and that it would adopt a different structure for its procurement division. Among other things, Asaleo informed Mr Lees that three category managers, who had previously reported to him, would now report directly to his immediate manager, Mr Elliston, General Manager, Supply Chain.
Mr Lees considered that his role had been diminished, and that he had become a category manager. That was a lesser role than he had previously had. On 14 July 2019, Mr Lees emailed Mr Elliston, saying that he wanted a formal redundancy because his role had been diminished and there was an attempt to constructively dismiss him. On 16 July 2019, Mr Elliston explained to Mr Lees’ why his job was not redundant.
On 23 October 2019, Mr Lees emailed Mr Elliston saying that there was an active campaign to constructively dismiss him, and reiterating that he would accept “an orderly exit strategy”. On 1 November 2019, Mr Elliston reiterated that Mr Lees’ position was not redundant.
On 7 November 2019, Mr Lees filed a stop bullying application in the Fair Work Commission, alleging bullying by Mr Honey, the Executive General Manager, Supply. Mr Elliston reported to Mr Honey. The application was resolved at a conciliation conference on 27 November 2019, on the basis, largely, that Mr Elliston and Mr Honey would have training in workplace behaviours, and Mr Lees, Mr Elliston and Mr Honey would have discussions about clarity of roles and Mr Lees’ performance.
On 28 November 2019, Mr Hockley, the General Manager Manufacturing, Kawerau, (which is a town in New Zealand where Asaleo has some operations), emailed Mr Elliston saying Mr Lees had behaved in an arrogant, rude and unhelpful manner with employees based in Kawerau.
On 14 February 2020, Ms Sherman, a relatively junior employee in Kawerau, emailed Mr Lees, making certain statements about his forthcoming trip to New Zealand. Mr Lees replied:
LOL, love your panache never ceases to amaze me Lou; I like it !! No problems joining me for the Amcor visit; I’ll get Tanya to forward the invite to you. If anyone else would like to join us please let me know. We won’t be performing any QBR’s until after Q1, but thanks for the suggestion !”
On 18 February 2020, Ms Sherman’s manager in New Zealand, Mr Shepherd, emailed Mr Lees saying that his “panache email” had been very patronising and asking Mr Lees not to speak to Ms Sherman like that again. Later that day, Mr Lees forwarded Mr Shepherd’s email to Mr Elliston and Mr Griss, the Executive General Manager, People and Corporate Services. Mr Griss was on the same level as Mr Honey, that is, two rungs above Mr Lees and one rung below the CEO. Mr Lees said in his email, in effect, that he did not take direction from Ms Sherman, and that she was the one who should alter her behaviour.
On 20 February 2020, the HR manager in New Zealand, Mr Peters, emailed Mr Griss, saying, in effect, that Mr Lees had been rude, and that his trip to New Zealand scheduled for the following week should not proceed until the situation was resolved.
On 21 February 2020, Ms Sherman copied Mr Shepherd into an email, saying that she found the panache email rude and belittling, and another of Mr Lees’ emails threatening.
On 3 March 2020, Mr Griss, Mr Elliston and Mr Lees discussed the issues between Mr Lees and Ms Sherman. Mr Griss and Mr Elliston gave Mr Lees a draft performance improvement plan (“PIP”) for him to provide input on.
On 10 March 2020, Mr Lees rejected Mr Elliston’s calendar invitation to discuss the draft PIP. Mr Lees said by email that he did not accept the premise of the draft PIP, and reiterated his request for a redundancy, failing which, he would bring unfair dismissal proceedings in the Federal Court.
On 12 March 2020, Mr Elliston and Mr Griss met with Mr Lees and advised him that his employment had been terminated on the grounds of misconduct, namely, failing to participate in the PIP process. Asaleo gave Mr Lees two months’ pay in lieu of notice.
In these circumstances, Mr Lees submitted that Asaleo had taken adverse action against him by:
(a)presenting him with the draft PIP; and
(b)dismissing him,
because he had exercised his workplace rights to complain.
In addition, Mr Lees said that, since 2018, Asaleo had breached its contract with him by failing to undertake a formal performance review, which, in turn, meant that he was not eligible for a payment under the STIP, which could have been 20% of his annual salary.
Also, Mr Lees said that his position had been made redundant, and he was entitled to 10 weeks redundancy pay under s.119 of the Act.
BACKGROUND
In his written submissions filed on 30 September 2021, Mr Lees provided the following more detailed background to this matter:
1.On 20 October 2014, the Applicant commenced full-time employment with Asaleo Care Australia Pty Ltd (A.B.N. 62 004 191 324) in the position of Strategic Category Manager – Raw Materials & Finished Goods pursuant to a written contract of employment (First Employment Agreement).
2.On or around 13 February 2018, the Applicant entered into a new employment agreement with Asaleo Care Australia Pty Ltd (A.B.N. 62 004 191 324) in the role of Sourcing Manager (Second Employment Agreement).
3.There were terms and conditions of the Second Employment Agreement, inter alia:
(a) that he would perform the role of Sourcing Manager;
(b)that he would receive remuneration of $175,000 per annum plus superannuation at the rate of 9.5% (Remuneration Term);
(c)that he would be subject to formal performance reviews at least annually (Performance Review Term);
(d)that he was entitled to participate in the Respondent’s 2018 short term incentive plan (STIP) with a maximum bonus potential of 20% of the Applicant’s annual salary and was entitled to be eligible for an incentive payment in the event he met the requirements and criteria as set out in the STIP Rules (as defined) (the STIP Term); and
(e)that he would report to David Elliston (Mr Elliston) – General Manager Supply Chain.
4.The STIP Rules set out criteria for the eligibility for an incentive payment in accordance with the STIP Term.
5.In late 2018 Asaleo Care Australia Pty Ltd’s (A.B.N. 62 004 191 324) Procurement Team underwent a restructure. As a result:
(a)in late 2018 the Applicant became responsible for the recruitment of the new Procurement Team, and for preparation of the proposed restructure;
(b)on 30 January 2019 in an email to Mr Elliston, the Applicant was listed as Procurement Manager in the Draft Proposed Procurement Structure 2019; and
(c)in or around April 2019 Paul Honey (Mr Honey) – Executive General Manager: Manufacturing, transitioned to the role of Executive General Manager, Supply as part of the Executive Leadership Team and became Mr Elliston’s direct line manager.
6.On 28 February 2019, the Applicant’s employment transferred from Asaleo Care Australia Pty Ltd to the Respondent (Transfer of Employment).
7.On or around 5 April 2019 the Applicant’s remuneration increased to $178,500 per annum.
8.On 12 July 2019, the Applicant attended a meeting with Mr Elliston, during which Mr Elliston advised the Applicant that, inter alia:
(a)the Applicant would not be appointed to the position of Procurement Manager in the Respondent’s new Procurement Team; and
(b)three Category Managers who had been reporting to the Applicant would now report to Mr Elliston instead.
(Notice of Redundancy)
9.On 14 July 2019, the Applicant made a complaint to Mr Elliston and David Griss (Mr Griss) – People & Culture Manager about, inter alia:
(a)several changes within the organisation had caused his position to become redundant;
(b)Mr Honey had exhibited hostile behaviours toward him including personally and toward his career progression; and
(c)he was alerted to the fact that Mr Honey may attempt to manage him out of the business to avoid funding a redundancy payment.
(together, the First Employment Complaint)
10.The Applicant made further workplace complaints about Mr Honey’s bullying behaviour and associated matters on the following occasions:
(a)on 16 July 2019 to Mr Elliston and Mr Griss (Second Employment Complaint); and
(b)on 1 November 2019 to Mr Elliston and Mr Griss (Third Employment Complaint).¹
11.On 7 November 2019, the Applicant lodged an order to stop bullying with the Fair Work Commission (the Stop Bullying Application), which was resolved by agreement on 27 November 2019.
12.On 14 February 2020 at 11:30am, the Applicant responded to an email from Lou Sherman (Ms Sherman) – Senior Packaging Technologist (New Zealand), copying in several other employees of the Respondent and stating, inter alia, “LOL, your panache never ceases to amaze me Lou; I like it!!” (the Panache Email).
13.Following the Panache Email:
(a)on 18 February 2020, Ian Shepherd (Mr Shepherd) – Technical Manager sent an email to the Applicant raising concerns about the tone and content of the Panache Email, believing it to be patronising and inappropriate;
(b)on 18 February 2020, the Applicant sent an email complaint to Mr Elliston and Mr Griss about the timing of Mr Shepherd’s email being suspicious, given the events at the Fair Work Commission, and Ms Sherman’s inappropriate attitude towards him (the Fourth Employment Complaint);
(c)on 19 February 2020, the Applicant sent an email to Ms Sherman confirming that he had escalated the matter to human resources, and that he had raised concerns about her behaviour towards him (the Fifth Employment Complaint);
(d)on 3 March 2020, the Applicant met with Mr Elliston and Mr Griss, where he refuted Mr Griss’s assertion that the Panache Email was inappropriate, and complained about being undermined by Ms Sherman (the Sixth Employment Complaint). Mr Elliston presented the Applicant with a Performance Improvement Plan (PIP);
(e)on 10 March 2020, the Applicant made a complaint to Mr Elliston and Mr Griss about, inter alia, the arbitrary nature of the PIP, lack of evidence and the PIP as a means to force the Applicant to resign (the Seventh Employment Complaint).
14.On 11 March 2020, the Applicant attended a meeting with Mr Elliston and Mr Griss, during which Mr Elliston informed the Applicant, inter alia, that the Applicant’s employment was to be terminated effective immediately (Dismissal).
(footnotes omitted)
In its written submissions filed on 30 September 2021, Asaleo provided the following background to this matter:
1.The Respondent (Asaleo) manufactures, markets and sells personal care and hygiene products. The Applicant (Mr Lees) was employed at Asaleo from 20 October 2014 to 30 March 2020, serving in roles within Asaleo’s procurement function.
2.Prior to 2019, Mr Lees was considered a good performer: he was engaged, focused and delivering on objectives. Unfortunately, his performance and treatment of others changed for the worse after a restructure of Asaleo’s procurement function in July 2019.
3.On and from July 2019, Mr Lees made repeated demands for a redundancy payment, and Asaleo responded with repeated assurances that his position was not in fact redundant. Whilst this was occurring, Mr Lees’ colleagues began to raise concerns about his flippant and abrasive behaviour, and Asaleo made attempts to return Mr Lees to his previous standard of performance. Reference should be made to Asaleo’s Chronology of Events for an exhaustive summary of what transpired during this time (and these submissions proceed on the basis that the chronology has been read).
4.Mr Lees was dismissed on 30 March 2020 for misconduct, being his outright refusal to participate in a Performance Improvement Plan (PIP). On termination, Mr Lees was provided a payment of 2 months’ wages in lieu of the requirement to provide service.
Asaleo’s chronology is as follows:

Date Event

20 Oct 2014
The Applicant (Lees) commenced employment in the role of Strategic Category Manager of Raw Materials & Finished Goods.

At all material times, Lees worked in roles within the Respondent’s (Asaleo) procurement function.

25 Jan 2018
Lees enters into new employment as Sourcing Manager. Clause 12 of his employment contract required Lees to:

•     act in good faith and in the best interests of the Respondent (Asaleo);

•     use his best endeavours to promote the development, profitability, interests and welfare of Asaleo;

•     honestly, faithfully and diligently obey and perform all lawful orders and instructions of Asaleo, and the persons to which he reported to;

•     not do anything that may damage Asaleo’s reputation.

By implication of law, Lees was also required to co-operate in the discharge of these obligations.

Jan 2018 Lees began to report to David Elliston (Elliston).

2018
No Asaleo employee, including executives or any level of management, were invited to participate in Asaleo’s Short Term Incentive Plan (STIP) bonus scheme.

This is because the financial gateway targets for the STIP bonus scheme were not met.

28 Feb 2019 Lee’s employing entity changed following a restructure. Employment is on the same terms and conditions that applied previously.

Mar 2019
The restructure resulted in Asaleo selling its Australian Consumer Tissue Business (ACTB).
Following the sale of the ATCB:

•     Lees retained his prior responsibilities, and the same clients;

•     Lees became responsible for Logistics and Packaging, in addition to Pulp; and

•     Lees’ overall spend responsibility did not change.

5 Apr 2019
Elliston considered that Lees had performed well throughout 2018. Lees was engaged and focused, and delivering on objectives.

On 5 April 2019, Lees receives a salary increase in recognition of his performance.

Jun 2019
Paul Honey (Honey) commenced in the role of Executive General Manager - Supply.

Elliston reported to Honey. Lees did not report to Honey, but rather, reported to Elliston. Honey did not have any supervisory responsibility for Lees.

Honey considered that he had a professional working relationship with Lees.

12 Jul 2019
Due to the sale of the ACTB, Asaleo decided to restructure its procurement function. Elliston consulted with Lees and others about this.

Lees proposed a structure which involved him being appointed to a position called “General Manager Procurement”.

Asaleo did not proceed with this suggestion.

Lees was advised of the new structure in a meeting on 12 July 2019. He expressed disappointment that his proposal was not followed.

Jul 2019 Elliston noticed an immediate change in Lees behaviour. Lees was no longer engaged, and his motivation dropped significantly. Colleagues reported to Elliston similar observations.

14 Jul 2019
Lees emailed Elliston (“First Employment Complaint”). In summary, Lees:

•     referred to the meeting on 12 July 2019;

•     advised that he was seeking a “formal redundancy” from Asaleo including because he considered that there had been substantial and detrimental changes to his duties;

•     alleged that Honey was being hostile towards him, that there was an overt attempt to constructively dismiss him, or manage him out; and

•     said that “In the event we are unable to agree to an amicable and swift exit for me from Asaleo, I will arm myself with the necessary legal advice, tools and strategies that I need to protect my interests until an exit is agreed.”

16 Jul 2019
Elliston and Griss met with Lees to discuss his email. In summary, in the meeting:

•     Lees was told that his position was not redundant, and it was explained to him why;

•     They discussed the features of the new structure;

•     Lees maintained his view that his role had substantially changed, and that, his role was therefore redundant;

•     Elliston reassured Lees, and reaffirmed his expectations of Lees; and

•     Lees mentioned that he had previous issues with Honey but did not want to get “bogged down” by discussing it (“Second Employment Complaint”).

17 July 2019 Elliston sent Lees an email confirming what was discussed, and Asaleo’s position in response to his email of 14 July 2019.

18 Jul - 23 Oct 2019
Lees did not raise any further issues about the restructure, or his position within the new structure.

Elliston and Griss therefore considered that the issue had been resolved.

23 Oct 2019
Lees emailed Elliston and Griss. In summary, Lees:

•     said that he was “very alert” to a “constructive dismissal campaign” being “covertly rolled out” against him by Honey;

•     forwarded an email chain between him and his colleague, Matthew Arblaster (Arblaster), as a means of evidencing the campaign;

•     stated: “Clearly … Arblaster knows nothing about the Procurement process (read his email). He is not part of my management structure. And he ought to know that he has no place publicly questioning my Procurement acumen; “MBA, MCIPS, Chartered Professional” should be more than enough for him to think twice. So his attack makes no sense, unless (of course) its designed to convey a perception of incompetence on my behalf. He and his boss [Honey] undoubtedly have a game plan here”.

•     indicated that he had examples of Honey’s “game plan”;

•     confirmed that he is “amenable to an agreeable and orderly exit strategy with Asaleo Care”.

25 Oct 2019 Griss acknowledges Lees’ email from 23 October 2019 and says that Elliston will respond to him the next week.

1 Nov 2019
Elliston responded to Lees. In summary, Elliston:

•     reiterated to Lees that his position was not redundant • reiterated Asaleo’s expectations of Lees;

•     reiterated that there was no campaign to dismiss Lees;

•     responded to the concerns raised about Arblaster’s email and the other examples raised;

•     advised Lees that he found his response to Arblaster “aggressive and inappropriate” and “not what I expect of a leader in my team”;

•     confirmed that I would schedule a meeting to reconfirm his expectations of Lees; and • Asaleo would not participate in an “agreeable and orderly” exit of Lees.

1 Nov 2019
Lees replied to Elliston (“Third Employment Complaint”). Lees copies in James Orr, Asaleo’s General Counsel and Audit Committee Chair (Orr). In summary, Lees:

•     referenced Asaleo’s alleged “aggressive and defiant response to the very serious matter of executive level bullying”;

•     claimed that Asaleo had demonstrated “extraordinarily poor behaviour” towards its employees;

•     cited examples, including office heating, air conditioning, staff amenities, poor ventilation, the presence of mould and fungi, locked toilets, old décor, and leaking roofs;

•     said that he is now “blowing the whistle”;

•     said: “I will afford Asaleo one last chance to start dealing with me in good faith. Failing that an application will be lodged with the Fair Work Commission seeking an Order to Stop Bullying”;

•     advised: “all discussions which I decide (exclusively) are relevant to my Job Description, Key Performance Indicators, or similar, will be audio recorded by me for the exclusive benefit of me and my legal team. Take note.”

7 Nov 2019
Lees filed an Application for an Order to Stop Bullying in the Fair Work Commission (FWC).

Given the FWC proceeding, Elliston decided that it was not appropriate at that time to meet with Lees to discuss his expectations as foreshadowed on 1 November 2019.

11 Nov 2019 Orr appointed an independent external investigator, Peta Nowacki (Nowacki), to investigate Lee’s allegations of bullying notified to him on 1 November 2019.

26 Nov 2019
Nowacki investigated Lees allegations of bullying by Honey.

Lees frames the allegations himself in consultation with Nowacki.

Nowacki interviews persons (including Lees, Honey, Elliston and Griss).

Nowacki concludes that there was no wrongdoing by Honey, and no objective evidence to suggest that he had acted other than professionally towards Lees.

27 Nov 2019
FWC held a conciliation conference in relation to the Stop Bullying Application.
The application is resolved through a terms of settlement, as follows:

1.   “Mr Paul Honey and Mr David Elliston will participate in training in Asaleo Care’s Workplace Behaviours Policy, Code of Conduct and other relevant policies reinforcing existing training that has occurred in relation to appropriate workplace behaviour. The training will occur prior to 31 December 2019.

2.   Mr David Griss will oversee progress and provide support to Mr Honey and/or Mr Lees as required.

3.   Mr Griss will facilitate a discussion and, if required, discussions with Mr Honey, Mr Elliston and Mr Lees that address clarity of roles and responsibilities, ways of improving working together and Asaleo Care’s performance expectations of Mr Lees in relation to his leadership and behaviours.

4.   The contents of this Agreement are to remain strictly confidential between the parties unless required by law.”

(Settlement Agreement).

Whilst Honey and Elliston were reluctant, they both agreed to the proposal in the higher interest of restoring a productive relationship with Lees.

Point 3 was important to Elliston for he wanted to set performance expectations with Lees, including through a Performance Improvement Plan (PIP).

28 Nov 2019
Hockley emailed Elliston about the concerns he raised about Lees in October 2019. In summary, Hockley:

•     expressed concerns that “[t]he Kawerau team struggles with Stuart’s approach [and] he comes across as arrogant rude and not helpful”;

•     observed that Lees behaviour seemed to be “totally different, polite, professional” when other more senior Asaleo employees are present in meetings;

•     said that Lees “is not a good communicator and I would expect in his role that he is involving the right subject matter experts from the Sites to get involved so we can get the best outcome for the business”.

Hockley attached a bundle of emails from Lees to demonstrate his concerns.

Elliston decided not to raise this complaint with Lees, because a resolution at the FWC had just been reached, and he feared that Lees would infer that Elliston was targeting him.

Elliston decided that Hockley’s concerns could be raised with Lees as part of resolution reached at the FWC.

16 Dec 2019 Honey and Elliston completed training as part of the Settlement Agreement reached.

16 Jan 2020
Honey, Elliston and Griss had a meeting with Lees as per Point 3 of the Settlement Agreement. In the meeting:

•     Griss explained to Lees the need for him to collaborate with key stakeholders in his role;

•     Lees expressed concerns about being questioned. Griss, Honey and Elliston reiterated that such questions would continue;

•     Elliston and Griss told Lees that they would be subsequently addressing their expectations of him regarding leadership and collaboration skills, and said to him that they would get back to him with a plan on how to address this. Lees acknowledged this.

Griss asked Elliston to set up a meeting to discuss the plan with Lees.

Feb 2020 Elliston began to prepare a PIP.

14 Feb 2020 Lou Sherman (Sherman), Packaging Technologist located in New Zealand, emailed Lees and wrote:
“Hi Stu,
Great that you will visit NZ! I have not visited Amcor’s Auckland site before so I will join you on the 27th. It would make sense to have a quarterly supplier review meeting while you can be in the room - so maybe good for Laura, Jenna and Emma to join too!”

14 Feb 2020
Lees replied to Sherman (and other colleagues) and wrote:

“LOL, love your panache never ceases to amaze me Lou; I like it !! No problems joining me for the Amcor visit; I’ll get Tanya to forward the invite to you. If anyone else would like to joint please let me know. We won’t be performing any QBR’s until after Q1, but thanks for the suggestion !”

18 Feb 2020
Ian Sheppard (Shepherd), Technical Manager located in New Zealand, emailed Lees. Shepherd writes:

“Your email reply to Lou didn’t sit well with me. I am concerned at the tone and content of your reply to Lou with regard to her request to visit Amor with you. It appears to be very patronising and not appropriate to have been sent to or the wider audience. I respectfully ask that you refrain from speaking to her like that again.”

18 Feb 2020
Lees forwarded Sheppard’s email to Elliston and Griss (“Fourth Employment Complaint”). In summary, Lees said that:

•     “there is an inference in Ian Shepherds communique that suggests I have demonstrated bullying behaviour towards Lou Sherman” and that “I completely and utterly refute any such inference, the timing of which is very suspicious given the events of late last year at the Fair Work Commission”.

•     he did not appreciate Sherman’s “on-going micro aggressions” and “public attempts” to “assert or infer control over” him;

•     “I do not take direction from Lou Sherman and as such I am well within my rights to gently push back on her very public provocations”;

•     Sherman “should be instructed by HR to alter her behaviour, immediately”;

•     he expected a complete and full written retraction of Ian Shepherd’s email; and

•     if one was not forthcoming, he would instigate further action to ensure that his employment record remains untarnished.

19 Feb 2020
Lees emailed to Sherman (“Fifth Employment Complaint”) and wrote:

“Yesterday I received an email from [Shepherd] which inferred bullying type behaviours by me towards you. I have escalated this matter to our EGM for Human Resources [Griss], accompanied by a complete & utter repudiation of those inferences. I think it would be appropriate for you and I to limit our interactions for the time being whilst [Griss] work through [Shepherd’s] concerns and the concerns that I have subsequently raised about your behaviour towards me.”

20 Feb 2020
Hennie Peters (Peters), HR Manager located in NZ, emails Griss.

Peters forwarded an email and an attached document compiled by Hockley, a colleague located in New Zealand. In the email, Hockley writes:

“… there are statements made [by Lees in emails] that I am concerned about, the flippant attitude and condescending, rude remarks these are not acceptable behavior’s.

Stu has planned a trip to NZ next week - I am certainly not keen for a Kawerau visit until the current situation is resolved.

I would like to question why Stu responded to Lou directly as this has caused emotional stress to Lou and required Sue and I to speak with Lou yesterday. You can see by Ian Shepherds discussion from this morning in the attached note to me that Lou is very stressed and distraught about the situation.”

The document sets out a chronology of concerns Hockley had with recent email communication by Lees, and attaches those emails.

21 Feb 2020
Peters emailed Griss. Peters forwarded Sherman’s response to the incident. In her response, Sherman writes:

•     “… I found the informal tone of [the 14 Feb 2020 email] is inappropriate for the audience copied. This is the second time he has used this term “panache” in an email about my behaviours and that time the audience was even wider. I found the tone and term belittling, when my requests are reasonable. I have had feedback from others copied on these emails and other emails that they think the tone is rude and feel sorry for me being on the receiving end…”

•     “… I was shocked to receive [the 19 Feb 2020 email] when he should have been emailing Ian. I found the tone of this email threatening… It also made me feel very hopeless as I know Ian was trying to improve the situation and Stu has completely overreacted. I don't think anyone noticed, but I did cry in my office for a few minutes, but then had to pull myself together for the GS1 audit….”

3 Mar 2020
Griss, Elliston and Lees met to discuss the issues between Lees and Sherman. In summary, at the meeting:

•     Griss explained to Lees that his email to Sherman was viewed by Sherman and Shepherd as belittling and inappropriate;

•     Lees disagreed and did not accept that there was an issue with the content of his email (“Sixth Employment Complaint”);

•     Lees said that Sherman had undermined him in public;

•     Griss explained to Lees that his subsequent email had brought Sherman to tears;

•     Lees indicated that he would not apologise to Sherman;

•     Griss advised that, following the FWC outcome and the earlier discussions, a PIP had been developed for his consideration and input.

•     Lees was asked to take the PIP away and consider it, and it would then be finalised in a follow up meeting.

The draft PIP focused on communication and engagement with others.

In Elliston’s view, Lees had very good technical skills, but his behaviour and the way he was treating others was a problem, which impaired his ability to lead.

9 Mar 2020 Elliston sends Lees a calendar invite for a meeting, for the purposes of finalising the PIP.

10 Mar 2020
Hockley emailed Griss and Peters. Hockley writes:

“Following the recent incident where Stuart Lees’ unacceptable behaviour caused anxiety and concern for Lou Sherman, I want to express my position going forward. Stuart’s response directed to Lou was totally unacceptable in that Ian Shepherd had expressed his concern and clearly said to discuss directly with him. This was typical of the way that he behaves and is not acceptable to us.
Over many months, I have expressed my concerns over the tone in his emails and his disrespect for our team at site. Stuart is not a team player and this does not fit with the Kawerau team who have always worked collaboratively and co-operatively. Stuart represents the Kawerau site with pulp ordering and we are constantly having to chase him for communication and response. He hasn’t secured the Amcor account which puts the site at risk. Stuart does not communicate what he is doing and does not involve people in things that concern them, an example being his visit to NZ planned recently where he failed to include any of us in his planned visits to suppliers. Stuart does not communicate that he is visiting nor plan that visit with us.
Taking all of this into account, it is clear that the relationship is broken beyond repair, and I do not want to work with Stuart Lees going forward, and do not want him at our site. We respectfully request that someone else manages all purchasing for Kawerau site from now on.”

10 Mar 2020 Lees rejects Elliston’s calendar invite.

10 Mar 2020
Lees emails Elliston (“Seventh Employment Complaint”). In summary, Lees:

•     says that “in no way shape or form [does he] accept the premise of the PIP”;

•     outlined to options, as follows:

1.   “As I have attempted to do so on several occasions now, the company and I can agree upon an orderly exit strategy, with my current Programme of Work to be brought to a close and/or handed over, after which I will leave the Company, statutory redundancy entitlements in hand, or;

2.   My employment wih the Company will come to a sudden and abrupt end, and I will commence proceedings in the Federal Court for Unfair (Constructive) Dismissal.”

12 Mar 2020
Griss and Elliston decide to terminate Lee’s employment on notice, for misconduct.

Elliston and Griss met with Lees to advise him of this. The termination, and Asaleo’s reasoning, is confirmed in writing.

The letter relevantly states: “As a result of your outright refusal to participate in [the PIP] which is intended to support you to improve in your role, we have been left with no choice but to terminate your employment on the grounds of misconduct.”

Lees is provided 2 months’ pay in lieu of notice.

12 Mar 2020 2 month notice period (for which payment was made in lieu) expires

1 Jul 2020
Lees commences full time employment with Augment Resources in the position of Senior Sourcing Manager.

His commencing salary is $191,625 per annum.

ISSUES IN DISPUTE

In his written submissions filed on 30 September 2021, Mr Lees said the issues in dispute are:
(a)Did the Applicant exercise workplace rights within the meaning of section 341 of the Fair Work Act 2009 (Cth)?
(b)Was there adverse action taken against the Applicant?
(c)Was the adverse action for the reason or for reasons including the exercise of the Applicant’s workplace rights?
(d)Was there a breach of contract?
(e)Was the Applicant made redundant?
(f)What remedy should be granted?
In its written submissions filed on 30 September 2021, Asaleo said that the issues in dispute are:
(a)       …whether Mr Lees exercised the eight workplace rights as alleged;
(b)      …whether the PIP constituted “adverse action”; and
(c)       …Asaleo’s reasoning for the PIP and the dismissal.
MATERIALS RELIED UPON
At the hearing on 14 October 2021 and 15 October 2021, Mr Lees relied upon:
(a)his affidavit affirmed on 22 April 2021; and
(b)his affidavit affirmed on 8 July 2021.
At the hearing on 14 October 2021 and 15 October 2021, Asaleo relied upon:
(a)the affidavit sworn by David Arthur Elliston on 17 June 2021;
(b)the affidavit affirmed by Paul Darren Honey on 17 June 2021; and
(c)the affidavit sworn by David Charles Griss on 17 June 2021.
The deponents of all four affidavits were cross-examined.
ADVERSE ACTION
Mr Lees claimed that:
(a)presenting him with a draft PIP was adverse action, which was motivated by the first to fifth employment complaints and the stop bullying application; and
(b)his dismissal was adverse action, which was motivated by the first to seventh employment complaints and the stop bullying application.
The first to seventh employment complaints and the stop bullying application are detailed below.
Asaleo argued that:
(a)presenting Mr Lees with a draft PIP was not adverse action;
(b)his first to seventh employment complaints were not the exercise of workplace rights; and
(c)Asaleo presented Mr Lees with a draft PIP and dismissed him, but not because of the first to seventh employment complaints or the stop bullying application.
Section 340 of the Act provides that:
Protection
(1)      A person must not take adverse action against another person:
(a)       because the other person:
…
(ii)       has, or has not, exercised a workplace right; or
...
(b)       to prevent the exercise of a workplace right by the other person.
Section 341 of the Act provides that:
Meaning of workplace right
(1)      A person has a workplace right if the person:
…
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c)       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.
Meaning of process or proceedings under a workplace law or workplace instrument
(2)Each of the following is a process or proceedings under a workplace law or workplace instrument:
(a)       a conference conducted or hearing held by the FWC;
…
Section 342 of the Act relevantly provides that:
Meaning of adverse action
(1)The following table sets out circumstances in which a person takes adverse action against another person.

Meaning of adverse action

Item Column 1
Adverse action is taken by ... Column 2
if ...

1 an employer against an employee
the employer:
(a)       dismisses the employee; or

(b)       injures the employee in his or her employment; or

(c)       alters the position of the employee to the employee’s prejudice; or

(d)       discriminates between the employee and other employees of the employer.

Meaning of adverse action
1	an employer against an employee	the employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee’s prejudice; or (d) discriminates between the employee and other employees of the employer.

…
(3)      Adverse action does not include action that is authorised by or under:
(a)       this Act or any other law of the Commonwealth; or
(b)       a law of a State or Territory prescribed by the regulations.
…

THE FIRST EMPLOYMENT COMPLAINT

The first employment complaint was contained in Mr Lees email dated 14 July 2019, and was as follows:
From: [email protected] <[email protected]>
Sent: Sunday, 14 July 2019 3:11 PM
To: David Elliston <[email protected]>
Cc: David Griss <[email protected]>; Stuart Lees <[email protected]>
Subject: Role Redundancy. Stuart Lees, Sourcing Manager.
Without Prejudice. All Rights Reserved.
Dear David,
I refer to our meeting on July 12^th 2019 during which you advised me that the decision has been taken not to appoint me as the General Manager (or similar) for the new Procurement team at Asaleo Personal Care Pty Ltd (“Asaleo”). With this decision in mind I know seek a formal redundancy from Asaleo and I do so for the following reasons:
1.The sale of the Australian Consumer Tissue Business in March 2019 essentially halved the addressable Procurement spend under my position control, from approx. A$430M to A$200M.
2.The appointment of a Strategic Sourcing Manager for New Zealand, the shifting of the Vendor Management of Essity AB to finance, and other appointments & changes, will further decrease that addressable spend by approximately 75%.
3.Leaving an addressable Procurement spend under my position control of less than A$50M, effectively reducing my status to that of “Category Manager Packaging”. See attached PD for further details.
4.I also note that despite being invited to the 2015, 2016, 2017 & 2018 executive short term incentive programs (STIP), I have not been invited to participate in the 2019 STIP.
Taken as a whole, the above represent substantial and detrimental changes to the scale, scope & status of the duties and responsibilities for which I was/am employed by Asaleo. A redundancy is now warranted & sought.
Other matters
It has become increasingly apparent that the Executive General Manager for our line of business (Mr. Paul Honey) is hostile to both myself (on a personal basis) and to my career progression within Asaleo. I have no confidence that he will act in any way remotely resembling “good faith” when it comes to matters concerning yours truly. Given his known behaviours I am also very alert to the risks associated with either an overt attempt being made to constructively dismiss me and/or a covert attempt to “manage me out” (without having to fund a redundancy). Let me be very clear; I will not allow either scenario to eventuate. In the event that we are unable to agree an amicable and swift exit for me from Asaleo, I will arm myself with the necessary legal advice, tools and strategies that I need to protect my interests until an exit is agreed.
David, I am extremely proud of the value that I have delivered for the shareholders of Asaleo during the past 5 years. On any measure, their return on their investment in me has been outstanding. But the structural changes and decisions noted above now necessitate an agreeable “parting of ways”. In 2014 I did not leave a senior role within the largest Procurement team in the southern hemisphere (namely Telstra Ltd) to end up essentially becoming a Category Manager for a small suburban factory (the Asaleo Springvale site).
I look forward to progressing this matter with you on Monday.
Kind regards
Stuart Lees.
ASALEO’S RESPONSE TO THE FIRST EMPLOYMENT COMPLAINT
Mr Elliston and Mr Griss met with Mr Lees on 16 July 2019. Mr Elliston summarised that meeting in an email to Mr Lees dated 17 July 2019 as follows:
From: David Elliston Sent: Wednesday, 17 July 2019 6:08 PM
To: Stuart Lees <[email protected]>
Cc: David Griss <[email protected]>
Subject: 12pm meeting Tuesday 16th July
Dear Stuart
I refer to our conversation yesterday at which David Griss, EGM People and Corporate Services was also present, regarding your email to both David and I on Sunday, 14 July 2019 in relation to your position at Asaleo Care. During the meeting, I indicated that I would respond in writing to your email and the matters we discussed during the meeting. Our response is set out below.
-Your position of Sourcing Manager at Asaleo Care is not redundant. Notwithstanding the sale of the Australian Consumer Tissue business (ACTB) and changes to the portfolio of categories you and others in the team are responsible for, your substantive responsibilities remain unchanged as is the case with all employees who remained with Asaleo Care post the sale of the ACTB including me. You remain in the position of Sourcing Manager responsible for pulp, energy in Australia and now logistics and packaging Trans‐Tasman. You continue to have two direct reports in your team. Spend in procurement will expand and contract depending on business circumstances but your core responsibilities as outlined in the position description dated February 2018 do not change. Furthermore, your remuneration was increased on 1 March 2019 (just prior to completion of the sale of ACTB) as part of an annual remuneration review and your reporting level in the organisation has not changed. In short, there is no change in responsibilities, status or a reduction in remuneration. Your position is not redundant.
-The decision not to proceed with a change in structure of the Procurement team at this time has been made to give myself and Paul Honey further time to assess the procurement needs for the business and to determine an appropriate structure. As I have said to you, the current structure is temporary and it is likely that at some point in the future a leadership role for the Procurement team will be established. If this change eventuates, as discussed, you could be a candidate for the position subject to our normal selection and assessment processes for such appointments.
-You remain a valued employee of Asaleo Care and your contribution is appreciated. At no stage have I or Paul Honey required you to resign or behaved in a way that would cause you to resign. During our conversation, you were not able to cite any specific examples of how Paul Honey has demonstrated personal hostility towards you. You referred in general terms to history between you and Paul at a prior organisation and stated words to the effect of Paul not liking you and that he will never give you the opportunity to advance. You further stated, that you will never work for “a guy like Paul Honey” and that you “do not respect his management style.” I cite these examples as the essence of what you said during our discussion today rather than quoting all parts of our conversation. It is necessary for me to reinforce in writing, in addition to the our conversation today, that there is no attempt to overtly or covertly manage you out of the organisation and as you put it “constructively” dismiss you. Neither I or Paul Honey have that intent. Going forward, our expectations are that you fulfil your responsibilities to the standards we require and to the best of your ability and potential. During the meeting today you assured us that you would.
-Given that you have indicated a strong desire to exit the business as was set out in your email, we feel it is necessary to reinforce that our expectations of you performing your role to the required standards remains unchanged. I will continue to have ongoing discussions with you as I do with all of my team about your performance and development needs and will do so in a supportive way.
I trust we can move forward positively and focus on the work we need to deliver together for the benefit of the business.
Regards,
David Elliston
General Manager Supply Chain
Asaleo Care
THE SECOND EMPLOYMENT COMPLAINT
Mr Lees’ second employment complaint was made orally during the meeting on 16 July 2019 and was to the same effect as the first.
THE THIRD EMPLOYMENT COMPLAINT
The third employment was contained in Mr Lees email dated 1 November 2019, and was as follows:
From: Stuart Lees
Sent: Friday, 1 November 2019 5:50 PM
To: David Elliston <[email protected]>
Cc: David Griss <[email protected]>; James Orr <[email protected]>; Audit Committee Chair <[email protected]>; [email protected]
Subject: RE: Paul Honey. A continuation of previous concerns. Improper Conduct.
David,
Asaleo Cares’ (‘Asaleo”) aggressive and defiant response to the very serious matter of executive level bullying is both regrettable, entirely expected and was clearly made without any reference to the attached Whistleblower and Improper Conduct Policy. Rather than acting in good faith, offering any support, suggesting a conciliation process, ways and means of addressing my concerns, or offering an agreeable exit strategy, Asaleo has doubled down in its abject support of the alleged perpetrator. ASX listed companies attacking whistleblowers is an interesting strategy, particularly in light of the raft of recent royal commissions. But none the less, its a predictable continuation of the 5 years of extraordinarily poor behaviour that Asaleo has demonstrated towards its salaried employees. I have many examples (all completely undeniable), including (but not limited too):
•Year after year of weeks with no office heating at the height of winter at Box Hill.
•Year after year of weeks with no office cooling at the height of summer at Box Hill.
•Leaking office roofs during storms, with warnings from I.T to cover up computer hardware for fear of electrocution (Box Hill).
•Mold and fungi growth in the Box Hill Vic Admin building.
•Flooding grounds at Box Hill during summer storms (I have photographic evidence).
•Permanently locked and leaking male toilet cubicles at Box Hill that were not fixed until a complaint was issued to Worksafe (I have photographic evidence). I will ask Worksafe for a record of that complaint (and subsequent site visit) if needs be.
•One of the few serviceable male toilets at Box Hill being locked for the exclusive use of the Executive Leadership Team.
•Deplorable kitchenette amenities on the ground floor at Box Hill.
•Office décor for the Supply and Procurement teams at Box Hill that has not been updated in 30 years.
•To this day, internal meeting rooms that do not have adequate ventilation or air-conditioning.
•Staff surveys and performance reviews that have not been performed for over 3 years. We all know why the staff surveys stopped, but why the performance reviews as well?
all whilst the business proudly spent $100M buying back its own shares. Its questionable behaviour from an organisation that both professes to be a leading hygiene company and has as one of its core values “Integrity”. So where too from here?
1.The fact that I am now blowing the whistle & shinning a spotlight on the behaviours of not just on my alleged bully, but also a publically listed company, has been (and is increasingly so) extremely stressful. This is now a clear threat to my occupational health and safety. As soon as I am able I will seek professional medical advice on the matter of my workplace stress and anxiety. Take note. This advice may not be accessible until next Wednesday morning.
2.I will afford Asaleo one last chance to start dealing with me in good faith. Failing that an application will be lodged with the Fair Work Commission seeking an Order to Stop Bullying, (s.789FC Fair Work Act 2009), with Asaleo Care Ltd (ABN 61 154 461 300) and Paul Darren Honey (in his capacity as EGM Supply) to be jointly nominated as Respondents. In the absence of further communication from Asaleo, my application will be lodged after the close of business on Monday November 4^th 2019.
3.Asaleo are hereby advised that all discussions which I decide (exclusively) are relevant to my Job Description, Key Performance Indicators, or similar, will be audio recorded by me for the exclusive benefit of me and my legal team. Take note.
I am extremely proud of the value that I have delivered to Asaleo shareholders during the past 5 years. I’ve lost count of how many millions of dollars I have personally saved them, particularly in the mission critical area of market pulp. The very few performance reviews that have actually taken place during my time here clearly reflect this outstanding record. The fact that we “are where we are” is a source of deep regret to me and is certainly not where I expected my career at Asaleo to land when Paul Honey took over our line of business.
Regards,
Stuart Lees
Sourcing Manager
Asaleo Care
(errors in original)
THE STOP BULLYING APPLICATION
On 7 November 2019, Mr Lees filed a stop bullying application in the Fair Work Commission. Mr Lees said in his application that the bully was Mr Honey, and provided four instances of bullying as follows:
Instance 1.
Spreading malicious rumours amongst the Asaleo Executive Leadership Team about “unpleasant experiences” (or similar) between the alleged bully and the Applicant at a previous employer (Australian Paper Pty Ltd) between the years 2005 and 2010.
Instance 2.
Belittling comments in a public forum (witnessed by the CEO, CFO, direct line manager & l other), with the alleged bully revelling in the fact that the Applicant was not able to answer a very difficult question instantly.
Instance 3
Aggressive and Intimidating conduct in a public forum (witnessed by the CEO, CFO, direct line manager & 1 other), with excessive stress testing of the Applicants subject matter expertise.
Instance 4
Unreasonable work expectations, with the alleged bully angrily expressing the view in a public forum (witnessed by the Applicants direct line manager) that the Applicants inability to quote the expiry date of a none existent contract was “not good enough”.
Mr Lees’ application provided further detail about each instance of alleged bullying as follows:
Instance 1
In approximately June 2019 the alleged bully took over as the line of business Executive General Manager for the Applicants function. Almost immediately the alleged bully began a concerted campaign to undermine the Applicants credibility during Executive Leadership team (“ELT”) meetings (comprising of the CEO & his direct reports). This took the form of the spreading of malicious rumours about the Applicant (eg. stories of “unpleasant experiences”) during his time with the Applicant at a previous employer; an employer that both the alleged bully and Applicant worked for approximately 10 years ago (Australian Paper). The Applicant became aware of this campaign via ELT meeting leaks. The Applicant was not provided with an opportunity to rebut these completely unfounded and baseless anecdotes. This event(s) would have been witnessed by most members of the ELT. The Applicant is not a member of the ELT and is therefore unable to comment upon the number of times these behaviours occurred or when they last occurred. On July 14^th 2019 the Applicant wrote to his fine manager (General Manager for Supply, David Elliston) and the Executive General Manager for People & Corporate Services (David Griss) expressing his heightened concern that the alleged bully was “hostile” to him. Nothing tangible was done to address the Applicants concerns, however the alleged bully was now alert to the fact that the Applicant was now monitoring him. This may well explain the interlude between instances 1 and 2.
Instance 2
October 16th 2019 at 12.00 hrs
Whilst on a strategic raw material conference call with Sid Takla (CEO), Campbell Richards (CFO), Matt Perfect (Finance), David Elliston (the Applicants line manager) and the alleged bully, the alleged bully posed to the Applicant a very specific finance related question regarding the current landed cost spread between two raw material types. Being able to answer that question off the top of his head would have been nice (the answer is buried deep within a highly complex model) but as it turns out, the Applicant wasn’t able too. The alleged bully then posed the same question to Matt Perfect, with an opening statement “I asked Stuart the same question and he was unable to answer it”. Neither was Matt Perfect. But why couch that question to Matt Perfect in that way in the first place, if not to attempt to belittle the Applicant in front of his senior leadership team ?
Instance 3
October 18th 2019 at 15.00 hrs
During a call with the same audience (absent Matt Perfect) the Applicant presented a graph depicting the Australian Stock Exchange electricity price forward curves. The alleged bully then immediately jumped in with the comment “they’re not forward curves, they’re historic prices”, undoubtedly assuming (hoping) that the Applicant had made some huge career ending mistake. In fact they were forward curves; the alleged bully didn’t know how to read the line graph correctly. But why so quick to try to find fault in the Applicants presentation, if not desperate to create a negative perception about him with the senior leadership team ? It was completely unwarranted aggressive and intimidating conduct.
Instance 4
October 21st 2019 at 09.30 hrs
During a meeting with the alleged bully and the applicants line manager (David Elliston), the alleged bully asked the Applicant what the expiry date of the “Colorpak” contract was. The Applicant responded that he “wasn't sure”, but that he’d check its status in the Asaleo contract management system. Contract management systems are in place so you don’t have to memorise those details across numerous agreements. The alleged bully subsequently expressed a view that the Applicant not knowing the answer off the top of his head was “not good enough”. But as it turns out, the trading name “Colorpak” is no longer used; that supplier now trades under the name “Graphic Packaging”, with the name change occurring years before the Applicant took over the management of that supplier. Little wonder the Applicant wasn’t able to answer that question immediately. But why jump down the Applicants throat about it, if not to try to create a perception that he wasn’t “across his brief” ? This is a dear example of the alleged bully trying to establish unreasonable work expectations.
Conscious that this pattern of behaviour is now increasing in frequency and intensity, on October 23^rd 2019 the Applicant again wrote to his line manager and the Executive General Manager for People and Corporate Services, attempting vet again (and in good faith) to have his concerns adequately addressed. This most recent email was met with defiance and aggression by Asaleo, with talk that the Applicants “recent behaviours” and their “expectations” would now be discussed in a far more formal setting. This can only be interpreted as a threat. It is clear that Asaleo Care Limited has no intention of adequately (and permanently) addressing these bullying allegations. Relief is thus now being sort from the Fair Work Commission.

Asaleo appointed an external investigator, Ms Nowacki, who found that there was no wrongdoing by Mr Honey.
The Fair Work Commission held a conciliation conference on 27 November 2019. The application was resolved with terms of settlement as follows:
1.Mr Paul Honey and Mr David Elliston will participate in training in Asaleo Care’s Workplace Behaviours Policy, Code of Conduct and other relevant policies reinforcing existing training that has occurred in relation to appropriate workplace behaviour. The training will occur prior to 31 December 2019.
2.Mr David Griss will oversee progress and provide support to Mr Honey and/or Mr Lees as required.
3.Mr Griss will facilitate a discussion and, if required, discussions with Mr Honey, Mr Elliston and Mr Lees that address clarity of roles and responsibilities, ways of improving working together and Asaleo Care’s performance expectations of Mr Lees in relation to his leadership and behaviours.
4.The contents of this Agreement are to remain strictly confidential between the parties unless required by law.
THE FOURTH EMPLOYMENT COMPLAINT
The fourth employment complaint concerned the panache email chain. It began with an email from Ms Sherman as follows:
From: Lou Sherman
Sent: Friday, 14 February 2020 7:30 AM
To: Stuart Lees <[email protected]>; Peter Hockley <[email protected]>; Matthew Perfect <[email protected]>; Menchie Jardiolin <[email protected]>; Laura Hall <[email protected]>; Ian Shepherd <[email protected]>; Emma Cook <[email protected]>; Jenna Hudson <[email protected]>
Subject: RE: Visiting you guys on Wednesday February 26th.
Hi Stu,
Great that you will visit NZ!
I have not visited Amcor’s Auckland site before so I will join you on the 27^th.
It would make sense to have a quarterly supplier review meeting while you can be in the room – so maybe good for Laura, Jenna and Emma to join too!
Kind Regards,
Lou Sherman
Senior Packaging Technologist
Asaleo Care
Mr Lees replied as follows:
From: Stuart Lees
Sent: Friday, 14 February 2020 11:30 AM
To: Lou Sherman <[email protected]>; Peter Hockley <[email protected]>; Matthew Perfect <[email protected]>; Menchie Jardiolin <[email protected]>; Laura Hall <[email protected]>; Ian Shepherd <[email protected]>; Emma Cook <[email protected]>; Jenna Hudson <[email protected]>
Subject: RE: Visiting you guys on Wednesday February 26th.
LOL, your panache never ceases to amaze me Lou; I like it !! No problems joining me for the Amcor visit; I’ll get Tanya to forward the invite to you. If anyone else would like to join us please let me know. We wont be performing any QBR’s until after Q1, but thanks for the suggestion !
Stu.
Mr Shepherd sent an email on 18 February 2020 as follows:
From: Ian Shepherd
Sent: Tuesday, 18 February 2020 7:34 AM
To: Stuart Lees <[email protected]>
Cc: Peter Hockley <[email protected]>
Subject: RE: Visiting you guys on Wednesday February 26th.
Stu
Your e-mail reply to Lou didn’t sit well with me. I am concerned at the tone and content of your reply to Lou with regard to her request to visit Amcor with you. It appears to be very patronizing and not appropriate to have been sent to her or the wider audience. I respectfully ask that you refrain from speaking to her like that again.
With regard to her request, in my view, Lou and others should be included in the planning for these visits and discussions without having to ask afterwards as it directly impacts our site, and their work.
I am happy to discuss further with you if you wish.
Regards,
Ian Shepherd
Technical Manager
Asaleo Care
Against this back drop, Mr Lees made his fourth employment complaint by email as follows:
From: Stuart Lees
Sent: Tuesday, 18 February 2020 5:54 PM
To: David Elliston <[email protected]>
Cc: David Griss <[email protected]>; [email protected] Subject: Bullying Inference against Stuart Lees.
David Elliston,
I’ll begin by saying that I had genuinely hoped to start 2020 anew, putting behind us the unfortunate & time consuming events of 2019. But it seems that others in our line of business are determined to continue the previous unpleasantness. I sincerely hope that is not the case, for all the parties involved. I note for the record that Peter Hockley (cc’d below) reports directly to Paul Honey.
See the below email string. There is an inference in Ian Shepherds communique that suggests I have demonstrated bullying behaviour towards Lou Sherman. Let me state for the record that I completely & utterly refute any such inference, the timing of which is very suspicious given the events of late last year at the Fair Work Commission. Given the seriousness of the inference and the fact that it is in writing, I now request a HR convened meeting to address it. The “tone and content” of Ian’s email to me suggests that its purpose is far more sinister than it first appears. I made it clear to Asaleo Care last year that I will actively protect myself against any covert nonsense to manage me out; in that regard you should note that absolutely nothing has changed.
Let me also state for the record that I do not appreciate the on-going micro aggressions being directed towards me by Lou Sherman, two of which are demonstrated below (i.e. inviting herself to my meeting with Amcor & suggesting large pieces of work for me to complete during my pending N.Z visit), with a third attached (allocating action points for me and predominately to me in forums I host, without conferring with me first). As you will read, I have deliberately made light of these very public attempts by her to assert or infer control over yours truly. I deployed an inoffensive strategy (to keep the peace) which is now clumsily being used by others in an attempt to establish egregious “patterns of behaviour”. It should come as no surprise to Asaleo Care that I will not let that stand. I do not take direction from Lou Sherman and as such I am well within my rights to gently push back on her very public provocations. Her sighted interactions with me demonstrate a complete lack of professional courtesy towards me. As such she should be instructed by HR to alter her behaviour, immediately.
At the end of the aforementioned HR meeting I expect a complete and full written retraction of Ian Shepherds email to me. If one is not forthcoming further action will be instigated to ensure that my employment record with Asaleo Care remains untarnished.
Regards
Stuart Lees
Resourcing Manager
Asaleo Care
THE FIFTH EMPLOYMENT COMPLAINT
The fifth employment complaint was an email from Mr Lees to Ms Sherman as follows:
From: Stuart Lees
Sent: Wednesday, 19 February 2020 12:07PM
To: Lou Sherman <[email protected]
Subject: Future Interactions
Hi Lou
Yesterday I received an email from Ian Sheppard which inferred bullying type behaviours by me towards you. I have escalated this matter to our EGM for Human Resource (David Griss), accompanied by a complete & utter repudiation of those inferences. I think it would be appropriate for you and I to limit our interactions for the time being whilst David works through Ian’s concerns and the concerns that I have subsequently raised about your behaviours towards me.
Regards,
Stuart Lees
Sourcing Manager
Asaleo Care
THE SIXTH EMPLOYMENT COMPLAINT
The sixth employment complaint was made orally on 3 March 2020 in a meeting between Mr Lees, Mr Griss and Mr Elliston. Mr Griss said in that meeting that he believed that Mr Lees’ panache email was belittling and inappropriate. Mr Lees denied that, and complained that Mr Shepherd should have telephoned him rather than emailing him. The meeting concluded with Mr Elliston giving Mr Lees a draft PIP. It was as follows:
Performance Improvement Plan
Employee name: Stuart Lees
Business Unit/Division: Supply Chain
Manager: David Elliston
Performance area: Collaboration
List where performance is not currently at level we expect
•Lack of engagement with key internal stakeholders (e.g. Site Leaders, Subject Matter Experts) In relation to work issues, site visits, etc. has created frustration amongst the team and has the potential to lead to non-optimal procurement outcomes.
•Working with suppliers (e.g. Amcor) in isolation at times, with site teams not being kept informed on progress of initiatives.
List where performance should be (give example of what should be occurring)
•Proactive engagement with key stakeholders (e.g. Site Leaders and Subject Matter Experts).
oThis includes gaining buy in when developing category plans
•Category plans agreed and signed off by key stakeholders
•Be a trusted knowledge source that proactively provides insightful information and value to assist stakeholders deliver on their targets
•Drive progress through team engagement to deliver the agreed outcomes within the project timeline
By when
•30 April (with progress observed by 31 Mar)
Performance area: Communication
List where performance is not currently at level we expect
•Verbal and written communication, particularly with more junior colleagues, perceived as aggressive/ patronising at times.
•Overall lack of communication with relevant parties is creating knowledge gaps and duplication.
List where performance should be (give example of what should be occurring)
•Communication should be supportive, clear, concise and respectful with due regard given to tone and style.
•Give consideration to most appropriate communication channel, i.e. email vs phone/ face to face.
•Ensure all parties are kept abreast of issues, work progress, etc. in a timely manner.
By when
•30 April (with progress observed by 31 Mar)
Performance area: Action orientation/delivery of results
List where performance is not currently at level we expect
•Contracts with key suppliers have lapsed without new contracts in place. This poses a risk to the business.
•Not proactive in offering to take on new responsibilities/work which is expected particularly at a senior level.
•Aligned to Project Ribeiro - Business Planning stream
List where performance should be (give example of what should be occurring)
•Category Management plans for all key categories documented, with input from key stakeholders and signed off. This is expected to include an agreed work/action plan for the next 24-36 months as a live document with bi-annual reviews.
•Asaleo Care’s key supply arrangements should be maintained in a competitive contracted state at all times.
•Proactively manage sourcing initiatives to agreed timelines - hold yourself and others accountable to the timelines.
•Be proactive in taking on new work to assist the team.
By when
30 April
30 June
Initiative specific
Other comments:
•I will establish weekly reviews to monitor your performance against these standards in this document
•Formal review in one month
THE SEVENTH EMPLOYMENT COMPLAINT
The seventh employment complaint was made by email dated 10 March 2020 and was as follows:
From: Stuart Lees
Sent: Tuesday, 10 March 2020 11:50 AM
To: David Elliston <[email protected]>
Cc: David Griss <[email protected]>; [email protected] Subject: Employment Status. Employee Stuart Lees
Without Prejudice. All Rights Reserved
Dear David,
I refer to the attached Performance Improvement Plan (“PIP”) which was presented to me by you in the presence of our EGM for People & Corporate Services (David Griss) last week, your meeting request to discuss the same for 11.30 today, my subsequent rejection of that meeting request and my on‐going concerns with Asaleo Care (the “Company”) as my employer. I have rejected your meeting request for two reasons:
1.I in no way shape or form accept the premise of the PIP itself (i.e., that my performance as an employee suddenly no‐longer meets Company expectations). The arbitrary list of subjective examples provided in the PIP in no way supports the notion that my performance requires improvement. I could (and will, via any subsequent formal discovery process) find examples of these supposed failings applying to numerous members of our ELT, SLT and salaried staff. It begs an obvious question. Are these standards being applied equally, or am I (yet again) being singled out for special treatment ? Additionally, the Company has presented no evidence in support of its claims. This is not surprising given the fact that I have not had a formal Performance Review since August 8th 2016 and the only verbal or written communication from the Company to me expressing any concerns with my performance was received (again, completely “out of the blue”) in response to my second request for a formal redundancy (in 2019).
2.I view the issuing of this PIP to be yet another step in the Company’s cynical attempts to force my resignation; i.e., to unfairly dismiss me.
It should come as no surprise to the Company that I will not let this stand. It should also come as no surprise to the Company that I consider my continued employment here to be completely and utterly untenable; the stress and anxiety that the Company’s relentless campaign against me must now be brought to an end. With this in mind I now present to the Company two options:
1.As I have attempted to do so on several occasions now, The Company and I can agree upon an orderly exit strategy, with my current Programme of Work to be brought to a close and/or handed over, after which I will leave the Company, statutory redundancy entitlements in hand, or;
2.My employment with the Company will come to a sudden and abrupt end, and I will commence proceedings in the Federal Court for Unfair (Constructive) Dismissal.
The Company will be (or ought to be) well aware of the precedent rulings in this area, the fact that I have a very solid Prima facie case and that its likely liabilities (both in damages and legal costs) will far outweigh the Redundancy entitlements which I still contend I am owed. It is my sincere hope that we can agree upon an orderly exit, however, in the absence of a formal response from the Company on or prior to the close of business this Friday (March 13^th 2020), I will assume that Option 2 is the preferred pathway forward.
Regards,
Stuart Lees
Sourcing Manager
Asaleo Care
DID MR LEES EXERCISE WORKPLACE RIGHTS?
Asaleo accepted that Mr Lees’ stop bullying application to the Fair Work Commission was the exercise of a workplace right.
However, Asaleo disputed that Mr Lees’ first to seventh employment complaints were the exercise of workplace rights, as Mr Lees had not pleaded that the first to seventh employment complaints were “able” to be made, or were “in relation to his … employment”, and had not pleaded the instrumental source of Mr Lees’ ability to make the complaints.
Asaleo relied on the recent decision in Alam v National Australia Bank (2021) 393 ALR 629; [2021] FCAFC 178. In that case, the Full Court of the Federal Court considered the disparate authorities concerning complaints, and decided, unanimously, at [97], that, for reasons of judicial comity, it should follow the unanimous decision of the Full Court of the Federal Court in Cigarette and Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46); (2019) 285 IR 290; [2019] FCAFC 16. In Alam, the Full Court said the following about Whelan:
74.In Whelan v Cigarette & Gift Warehouse Pty Ltd (2017) 275 IR 285; [2017] FCA 1534, Collier J found that the workplace right exercised by the employee was the making of inquiries in the weeks prior to, and on the day of, his dismissal about either payment of a bonus or the establishment of a bonus plan. Her Honour stated the principles she was applying in the following terms:
[33]Section 341(c)(ii) defines a workplace right in an employee as being the entitlement of the employee to make a complaint or inquiry in relation to his employment. In such cases as Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346; 242 IR 1; [2014] FCA 271 (Shea), Murrihy v Belezy.com.au Pty Ltd (2013) 238 IR 307; [2013] FCA 908 and Walsh v Greater Metropolitan Cemeteries Trust (No 2) (2014) 243 IR 468; [2014] FCA 456 (Walsh), s 341(c)(ii) was interpreted broadly. In Walsh [41], Bromberg J observed that the requirement in s 341(c)(ii) that a complaint or inquiry by the employee be “in relation to” his employment means that there must be a relationship between the subject matter of the complaint and the complainant’s employment. As Dodds-Streeton J further observed in Shea, a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise.
[34]As a general proposition, a complaint or inquiry to the employer by an employee in relation to his or her entitlement to an incentive bonus, or the failure of the employer to prepare an incentive bonus plan, where the terms of employment of that employee make provision for payment of such bonuses or the preparation of such plans, would fall within the scope of s 341(c)(iii) of the FW Act.
75.It is evident that, in applying the approach of Dodds‑Streeton J in Shea v TRUenergy, Collier J 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. It is also to be noted that Collier J did not purport to state exhaustively the kinds of complaints or inquiries which would be within, and without, s 341(1)(c).
(emphasis added)
76.On the appeal (Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46; [2019] FCAFC 16 (Whelan)), 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.
Based on Alam and Whelan, and contrary to Asaleo’s submission, it is not necessary that the ability to make the complaint have an instrumental source. Rather:
… it is sufficient if the complaint or inquiry relates to a subject matter for which the contract of employment makes provision.
In any event, Mr Lees submitted in his closing written submissions in reply that he had identified in his closing written submissions dated 26 October 2021, an instrumental source for each of his complaints. He said that they were as follows:
(a)the first complaint …:
Both of these grievances concern matters which sufficiently relate to Mr Lees’ employment and are underpinned from a source of entitlement. The first concerns a redundancy payment, to which Mr Lees was entitled under his contract, the Respondent’s policies and under statute. The second, concerning hostile conduct by Mr Honey, was in substance, a complaint about bullying conduct. It is acknowledged that the term ‘bullying’ was not used at that stage, but it was sufficiently clear that the complaint concerned unreasonable behaviour within the meaning of that term both under statute and the employer’s own Workplace Behaviours Policy. It was a complaint in relation to Mr Lees’ employment attracting protection as the exercise of a workplace right under section 341(1)(c)(ii) of the FW Act.
(footnotes omitted)
(b)the second complaint …:
This complaint was made orally on 16 July 2019, and concerned the same subject matter as the First Employment Complaint. It was the meeting requested in the First Complaint, at which Mr Lees repeated his complaint about Mr Honey’s bullying behaviour. The analysis of that complaint is the same as the First Employment Complaint examined above.
(footnotes omitted)
(c)the third complaint …:
11.This complaint was made in writing on 1 November 2019, and raises a variety of grievances. It principally concerns conduct described as ‘the very serious matter of executive level bullying’, and the Respondent’s failure to take action under its own ‘Whistleblower and Improper Conduct Policy’, which was attached to the complaint. It proceeds to provide a list of eleven matters on which the Respondent has displayed ‘a predictable continuation of the 5 years of extraordinarily poor behaviour that Asaleo has demonstrated towards its salaried employees’. The list includes a number of significant concerns regarding occupational health and safety matters, including inadequate heating/cooling/ventilation, leaky roofs, fear of electrocution, mould and fungi growth, flooding, and locked/leaking toilets. Mr Lees had a statutory right to provision of a ‘working environment that is safe and without risks to health”, and the complaint was one he was entitled to make.
12.The final item in the list of grievances concerns ‘staff surveys and performance reviews that have not been performed for over 3 years’. Mr Lees had a clear contractual entitlement to annual performance reviews, and was able to complain about the employer’s failure to comply with his contractual entitlements.
13.The complaint concludes with specific reference to the ‘clear threat to my occupational health and safety’, and foreshadows an application to the Fair Work Commission for a stop-bullying order pursuant to section 789FC of the FW Act.
(footnotes omitted)
(d)the fourth complaint …:
The complaint requests a meeting with human resources to address the issues raised. It is the expression of a grievance that Mr Lees was entitled to make, sourced in his rights under the employer policy and under statute.
(footnotes omitted)
(e)the fifth complaint …:
This complaint was made in writing on 18 February 2020. It is an email to Ms Sherman, which in substance complains about the inference by Mr Shepherd of ‘bullying type behaviours’ towards Ms Sherman. In that email Mr Lees suggests it would be appropriate for Mr Lees and Ms Sherman to limit their interactions for the time being whilst Mr Griss works through the matter, which includes ‘concerns that I have subsequently raised about your behaviours towards me’. It is a complaint underpinned by Mr Lees’ rights to take action against bullying conduct, including the exercise of Mr Lees’ right to seek an informal resolution of his complaint.
(footnotes omitted)
(f)the sixth complaint …:
This complaint was made orally on 3 March 2020. In the course of that meeting, Mr Lees complained about the criticism he had received claiming that the use of the word ’panache’ was belittling and inappropriate. He also complained about why it was that Mr Shepherd had not phoned him instead of sending Mr Lees an email, and further complained about Ms Sherman having ‘denied me a reasonable amount of professional courtesy. It was the exercise of a workplace right to make a complaint in relation to his employment.
(footnotes omitted)
(g)the seventh complaint …:
21.The Seventh Employment Complaint was made in writing on 10 March 2020,36 being the day before his dismissal. He complains in this email about the performance improvement plan (PIP) which was issued to him the previous week. He complains about the suggestion that his ‘performance as an employee suddenly no longer meets Company expectations’, and raises concerns about whether the Respondent’s expectations are being applied equally or whether he is being singled out for special treatment. He complains about ‘the fact that I have not had a formal Performance Review since August 8th 2016’ and that the performance concerns expressed against him lacked foundation.
22.In this complaint Mr Lees expresses the view that the PIP was ‘yet another step in the Company’s cynical attempts to force my resignation’. He expressly foreshadows the commencement of legal proceedings in the event that his employment was to be brought to an end.
(footnotes omitted)

I accept that Mr Lees did identify an instrumental source for each of his complaints in his closing written submissions dated 26 October 2021, and that Mr Lees was able to make the complaints that he made.
WERE THE COMPLAINTS MADE GENUINELY ETC?
Asaleo then argued that Mr Lees had to prove that his complaints were made genuinely, in good faith, and for a proper purpose. For that proposition, Asaleo relied on PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225; (2020) 292 IR 317; [2020] FCAFC 15, [26] and Shea v TRUenergy Services Pty Ltd(No 6) (2014) 314 ALR 346; (2014) 242 IR 1; [2014] FCA 271, [29].
Paragraph 26 of PIA says:
… As Dodds-Streeton J held in Shea at [29], the complaint must be made genuinely, in good faith and for a proper purpose.
Paragraph 29 of Shea relevantly stated that:
I concluded, for reasons set out below, that in the context of s 341(1)(c)(ii) of the Act:
(a)a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;
(b)the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;
(c)the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose;
(d)the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii);
…
Mr Lees noted that Alam did not require that complaints be genuine, made in good faith, and for a proper purpose, and there was a question as to whether Shea remained good law. Mr Lees noted that Judge Lucev in Guthrie v Visa Global Logistics Pty Ltd [2021] FCCA 479 at [43] said:
43.Another possibly contentious issue in relation to the application of the law with respect to a complaint or inquiry exercised as a workplace right under s 341(1)(c)(ii) of the FW Act is whether the complaint or inquiry must be genuine and exercised in good faith and for a proper purpose. In Shea at [29](b)-(c)] per Dodds-Streeton J, the Federal Court said that a complaint must be genuine, and made in good faith and for a proper purpose. On appeal in Shea v EnergyAustralia Services Pty Ltd[2014] FCAFC 167; (2014) 242 IR 159; (2014) 66 AILR 102-303 at [12] per Rares, Flick and Jagot JJ the Full Court of the Federal Court stated that “considerable care” should be exercised before implying such a constraint. In PIA Mortgage:
(a)at [32] per Rangiah and Charlesworth JJ, who endorsed Shea, accepted that the applicant in that matter had made “genuine” complaints, thereby implying that complaints need to be genuine;
(b)at [137] per Snaden J directly endorsed what was said in Shea at [29](b)-(c)] per Dodds-Streeton J.
44.The Court does not need to determine the arguably unresolved question as to whether a complaint or inquiry must be genuine, and made in good faith and for a proper purpose. It suffices to observe that if it is a requirement of making a complaint or inquiry there can be no question that Mr Guthrie’s repeated and often detailed and comprehensive representations concerning the issues he raised meet the genuineness requirement.
I accept that the law is unclear on whether complaints must be genuine, made in good faith and made for a proper purpose for the purposes of an adverse action claim.
However, assuming that complaints must be genuine, in good faith and for a proper purpose, Asaleo submitted that the first, second, third and seventh employment complaints were not genuine, made in good faith or made for a proper purpose because they were made with the sole or substantial purpose of securing a redundancy payment from Asaleo. Asaleo argued that was an extraneous and improper purpose.
Mr Lees argued that the first, second, third and seventh employment complaints were genuine, made in good faith and for a proper purpose. More particularly, Mr Lees said in his written submissions in reply that:
10.It is Mr Lees’ case that each of these complaints were made by Mr Lees for the reasons evident on the face of the complaint. For example, the First Employment Complaint concerned whether Mr Lees should receive a redundancy payment, and the conduct of Mr Honey. There is, on the evidence, no serious doubt that Mr Lees was genuinely advancing that complaint. The analysis may be different if he were advancing the complaint as a contrivance, in order to pursue some other improper purpose. But if he genuinely sought to agitate the subject matter of the complaint, it is difficult to see how the complaint could fall foul of the requirement that it be in good faith and a proper purpose, if that is an element of making a ‘complaint’ protected under the FW Act. Put simply, the First Employment Complaint was, at least in part, openly about Mr Lees’ claimed entitlement to a redundancy payment. It is hard to see that how it could be said to give rise to an improper purpose if he were seeking to recover exactly what the complaint is about.
11.The analysis of the Second Complaint is substantially the same, as it concerned the same subject matter as the First Employment Complaint. It was also a complaint, in part, about Mr Lees’ mooted entitlement to a redundancy payment, and cannot have been for the alleged improper purpose. The Third Employment Complaint raises a series of complaints, including ‘executive level bullying’ and raising the Respondent’s failure in not ‘offering an agreeable exit strategy’, and, again, it is impossible to see how it could be for an improper purpose in pursuing the matters overtly stated by its terms. The Seventh Employment Complaint also expressly makes reference to ‘the Redundancy entitlements which I still contend I am owed’, and it remains unclear how having an intention to pursue a redundancy payment is an improper purpose given that is express part of the complaint as made.
12.It follows that there is no basis for contending Mr Lees was pursuing any of his complaints other than genuinely, in good faith, and for a proper purpose. Mr Lees was at all times open about what he was complaining about and what he was seeking from the Respondent. Even if there is a need for a complaint to be genuine, in good faith and for a proper purpose – an issue which it is respectively submitted the Court does not need to resolve – the requirement is made out on the evidence.
13.The Respondent makes the submission that ‘Mr Lees’ purpose was to leave Asaleo by extracting a redundancy payment’. The same observation may be made as with paragraph 18 above, that Mr Lees was open and transparent about the subject matters complained of, including his asserted claim for a redundancy payment. His complaints were genuinely made in the requisite sense.
14.The Respondent maintains, that Mr Lees’ complaints were not genuine as ‘they were used as a means to procure a statutory entitlement that he was not lawfully entitled to’. That submission seems to conflate the issue of whether a claim is genuinely made with whether the complaint is ultimately made out. Whether an employee is eventually shown to be right or wrong in what they are complaining about does not mean that the complaint is not protected under the FW Act. As stated by Judge Riethmuller in Morley v Monza Imports Australia Pty Ltd:
The difficulty of this issue is apparent from the reality that not all complaints would be substantiated. Clearly, the mere fact that a complaint is not substantiated could not make it a complaint that was not genuinely held or otherwise not made in good faith. To place any significant restriction upon the types of complaints that are not protected by the statutory provisions would have the potential to significantly undermine the protections provided by those sections.
15.The Respondent then goes on to make further submissions suffering from the same internal flaw. It is said that ‘the internal investigation found that there was no evidence…to suggest that Mr Honey had been nothing but professional towards Mr Lees’. To show that Mr Lees made complaints – or even genuinely made complaints – it is not necessary to show his complaint was ultimately substantiated. And similarly, that ‘Mr Lees brought no evidence to the Court to establish that his complaints about toilets, heating, mould, fungi and the like were genuine or even true’. The Applicant’s hearing notes indicate that it was not put to the Applicant that this complaints about amenities were not made out, but even if that were the case, it does not deprive such grievances of the quality of complaints. Mr Lees did not have to call evidence to prove that the toilets were leaking, or that the roof leaked, or that there was fungal growth in order for his complaints on those matters to attract protection under the FW Act.
16.The Respondent sets out, on pages 7, 8 and 9 of its submissions, a detailed analysis of the subject matter of each of the First to Seven Employment Complaints. It is respectfully submitted that the Court does not need to descend into the detailed dissection of each of the complaints made, beyond being satisfied that each was a complaint in relation to Mr Lees’ employment for the purposes of section 341(1)(c)(ii) of the FW Act. The significance of the complaints made by Mr Lees is in the contention that he was subsequently penalised for the making of those complaints, and not whether Mr Lees was right or wrong in expressing the grievances raised.
(footnotes omitted).
I accept that, in theory, an intention to seek a redundancy payment could mean that a complaint was not genuine, was made in bad faith or was made for an improper purpose if the complaint was, on its face, unrelated to redundancy but was intended to make the complainant more likely to be offered a redundancy. However, in the present case, each of the impugned complaints was about redundancy and openly and transparently sought a redundancy. It follows that they were genuine, in good faith and for a proper purpose. There can be no doubt that a person is allowed to ask for a redundancy payment, and, in doing so, the person is allowed to say that he or she wants a redundancy payment because his or her work environment has become intolerable, whether by reason of bullying, or diminution of his or her role, or for some other reason.
One aspect of the first, second, third and seventh employment complaints that Asaleo particularly relied upon was the dot points in the third employment complaint, which was made on 1 November 2019 and was as follows:
From: Stuart Lees
Sent: Friday, 1 November 2019 5:50 PM
To: David Elliston <[email protected]>
Cc: David Griss <[email protected]>; James Orr <[email protected]>; Audit Committee Chair <[email protected]>; [email protected]
Subject: RE: Paul Honey. A continuation of previous concerns. Improper Conduct.
David,
Asaleo Cares’ (‘Asaleo”) aggressive and defiant response to the very serious matter of executive level bullying is both regrettable, entirely expected and was clearly made without any reference to the attached Whistleblower and Improper Conduct Policy. Rather than acting in good faith, offering any support, suggesting a conciliation process, ways and means of addressing my concerns, or offering an agreeable exit strategy, Asaleo has doubled down in its abject support of the alleged perpetrator. ASX listed companies attacking whistleblowers is an interesting strategy, particularly in light of the raft of recent royal commissions. But none the less, its a predictable continuation of the 5 years of extraordinarily poor behaviour that Asaleo has demonstrated towards its salaried employees. I have many examples (all completely undeniable), including (but not limited too):
•Year after year of weeks with no office heating at the height of winter at Box Hill.
•Year after year of weeks with no office cooling at the height of summer at Box Hill.
•Leaking office roofs during storms, with warnings from I.T to cover up computer hardware for fear of electrocution (Box Hill).
•Mold and fungi growth in the Box Hill Vic Admin building.
•Flooding grounds at Box Hill during summer storms (I have photographic evidence).
•Permanently locked and leaking male toilet cubicles at Box Hill that were not fixed until a complaint was issued to Worksafe (I have photographic evidence). I will ask Worksafe for a record of that complaint (and subsequent site visit) if needs be.
•One of the few serviceable male toilets at Box Hill being locked for the exclusive use of the Executive Leadership Team.
•Deplorable kitchenette amenities on the ground floor at Box Hill.
•Office décor for the Supply and Procurement teams at Box Hill that has not been updated in 30 years.
•To this day, internal meeting rooms that do not have adequate ventilation or air-conditioning.
•Staff surveys and performance reviews that have not been performed for over 3 years. We all know why the staff surveys stopped, but why the performance reviews as well?
all whilst the business proudly spent $100M buying back its own shares. Its questionable behaviour from an organisation that both professes to be a leading hygiene company and has as one of its core values “Integrity”. So where too from here?
1.The fact that I am now blowing the whistle & shinning a spotlight on the behaviours of not just on my alleged bully, but also a publically listed company, has been (and is increasingly so) extremely stressful. This is now a clear threat to my occupational health and safety. As soon as I am able I will seek professional medical advice on the matter of my workplace stress and anxiety. Take note. This advice may not be accessible until next Wednesday morning.
2.I will afford Asaleo one last chance to start dealing with me in good faith. Failing that an application will be lodged with the Fair Work Commission seeking an Order to Stop Bullying, (s.789FC Fair Work Act 2009), with Asaleo Care Ltd (ABN 61 154 461 300) and Paul Darren Honey (in his capacity as EGM Supply) to be jointly nominated as Respondents. In the absence of further communication from Asaleo, my application will be lodged after the close of business on Monday November 4^th 2019.
3.Asaleo are hereby advised that all discussions which I decide (exclusively) are relevant to my Job Description, Key Performance Indicators, or similar, will be audio recorded by me for the exclusive benefit of me and my legal team. Take note.
I am extremely proud of the value that I have delivered to Asaleo shareholders during the past 5 years. I’ve lost count of how many millions of dollars I have personally saved them, particularly in the mission critical area of market pulp. The very few performance reviews that have actually taken place during my time here clearly reflect this outstanding record. The fact that we “are where we are” is a source of deep regret to me and is certainly not where I expected my career at Asaleo to land when Paul Honey took over our line of business.
In some circumstances, the dot points in the third employment complaint could be seen as not genuine, made in bad faith or made for an improper purpose. However, reading the third employment complaint as a whole, I do not consider that the dot points can be properly viewed that way. The dot points were expressly stated to be examples of Asaleo’s poor behaviour towards its employees, the primary case of which, according to Mr Lees, was not addressing his concerns about bullying, or, alternatively, not providing him with “an agreeable exit strategy”, that is, a redundancy payment. The dot points were in the nature of a rhetorical flourish, to underline Mr Lees’ point that Asaleo treated its employees badly. The dot points simply raised more reasons why Mr Lees’ employment situation was intolerable, and more reasons why he should be granted a redundancy payment.
Consequently, if it is legally necessary that complaints be genuine, in good faith and for a proper purpose, I am satisfied that Mr Lees’ complaints met that requirement. I accept Mr Lees’ submissions in this regard.
WAS THERE ADVERSE ACTION?
Asaleo conceded, as it had to, that Mr Lees’ dismissal was adverse action. However, Asaleo submitted that presenting Mr Lees with a draft PIP was not adverse action, but reasonable management action to improve his performance. That is no answer, however. As Murphy J noted in Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) (2013) 216 FCR 70; [2013] FCA 525, reasonable management action may also alter a person’s position to their prejudice or injure them in their employment. His Honour said:
103.… in my opinion an investigation brought in good faith and carried out properly may nevertheless constitute adverse action. It must be accepted that an investigation which threatens the possibility of dismissal (as in the present case) will operate to reduce the security of future employment of the employee concerned. If it does so, CPSU v Telstra at [17]-[18] is authority for the proposition that it constitutes adverse action.
104.However, it should not be thought that this means that an employer that brings and carries out an investigation properly and in good faith may be seen to have acted unlawfully. Plainly this is not so. Employers must be able to properly investigate concerns regarding employment related misconduct. If unable to do so they may be forced to take disciplinary action on the basis of flawed or incomplete information, allow misconduct to go unpunished, or even allow it to continue. It is important to remember that while an investigation may constitute adverse action, it is only unlawful if the investigation is carried out for a prohibited reason. An employer has not acted unlawfully where the reason for the investigation is other than a prohibited reason. …
Mr Lees said that presenting him with a draft PIP was adverse action, consisting of:
(a)injuring him in his employment;
(b)altering his position to his prejudice; and/or
(c)discriminating between him and other employees.
Mr Lees did not press the discrimination point, so I take it no further. In relation to the meaning of “injuring” a person in their employment, and “altering” a person’s position to his prejudice, the following cases are of some assistance.
In Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244; [2012] FCAFC 63, the Full Court of the Federal Court said that:
30.In Telstra the [Full Court of the Federal] Court explained the reach of the concept of prejudicial alteration at [17]-[18] as follows:
17.The question is whether, by sending the email to its recipients, Telstra had altered the position of any of its employees to the employee’s prejudice within the meaning of s 298K(1)(c). In Patrick Stevedores at 18 the majority of the High Court held that the subsection covers “not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”. The majority also observed (at 20) that the reorganisation of companies within the Patrick Group resulted in the security of the employer companies’ businesses being “extremely tenuous” with the “security of the employees’ employment [being] consequentially altered to their prejudice”. The reorganisation did not directly affect or alter any legal rights or obligations of the employees but it left their future employment less secure. Although this issue was not in dispute, the majority appears to have had no difficulty in accepting reduced security of future employment as falling within s 298K(1)(c) because it brought about an adverse affection of, or a deterioration in, the advantages enjoyed by the employees before the reorganisation.
18.Where the alteration of position is alleged to be indirect or consequential, as in Patrick Stevedores and in the present case, a difficult question may arise as to whether a prejudicial alteration of position has in fact occurred. Answering that question may involve questions of degree. It is sufficient for present purposes to say that if the prejudicial alteration is real and substantial, rather than merely possible or hypothetical, it will answer the description in s 298K(1)(c).
(Bold emphasis added in Qantas.)
…
32.The authorities thus establish that a prejudicial alteration to the position of an employee may occur even though the employee suffers no loss or infringement of a legal right. It will occur if the alteration in the employee’s position is real and substantial rather than merely possible or hypothetical.

Again, Ms Sherman was purporting to give tasks to Mr Lees, who was more senior than her. He was justified in not allowing this, although he could perhaps have worded his response better.
Mr Hockley’s email dated 28 November 2019 about Mr Lee’s emails is as follows (CB803):
From: Peter Hockley
Sent:    Thursday, 28 November 2019 11:58 AM
To:     Paul Honey; David Elliston; Hennie Peters
Subject:         FW: Concerns about packaging RfP process
Attachments: RE: Flexibles update and timeline.; RE: Flexibles RFP preparation.; RE: Flexibles RFP Update.; RE: Flexibles update and timeline.; RE: Update on wrap tender timeline; procurement process leading up to Amcor contract renewal?
Hi David,
As we agreed at our last SLT team in Melbourne. I am providing feedback about one of your team.
I would like to raise my concerns with you about Stuart Lees.
I really am concerned that we have Stuart in a role dealing with people. I have dealt a lot with Neil Shaw in the past in the Sourcing role & he was very helpful / respectful and worked with the team to get the best result for the business.
The Kawerau team struggles with Stuarts approach he comes across as arrogant / rude and not helpful. He always likes to tell us how busy he is and doesn’t want to do any of the investigation work or help us to solve a problem. I have sat in meetings where Paul Honey and Sid Takla are present and Stu’s behaviour is totally different , polite , professional.( My key point here is that Stuart likes the cream and the frills but not the hard yards)
Some of his comments in the attached e-mail where Stuart has responded are not acceptable.
Stuart is not a good communicator and I would expect in his role that he is involving the right subject matter experts from the Sites to get involved so we can get the best outcome for the business.
Responses to e-mails like-
1.[Lees, Stuart] This is document is commercial in confidence. It (or elements of it) are distributed on an as needed basis. You have the current SLA and Special Conditions; that should be more than enough for you to provide feedback on what you would like to see moving forward
2.[Lees, Stuart] Noted.
3.[Lees, Stuart] A very cheeky list below; shows a certain level of panache ! J. This is a Procurement led initiative so we’ll continue to dive the process; thanks.
I am happy to discuss this further and understand what you can do about the situation.
Please read the full e-mail below.
Thanks
Peter
Regards,
Peter Hockley
General Manager Manufacturing Kawerau
Asaleo Care
I consider that Mr Hockley’s characterisation of Mr Lees’ communication style as arrogant, rude and unhelpful was exaggerated. Mr Lees was short and to the point, but that is not necessarily inappropriate. Again, I do not consider that Mr Lees’ communication style as demonstrated in Mr Hockley’s email warranted Mr Lees being presented with the draft PIP.
There was no emphasis in this proceeding about the other two points in the PIP, being collaboration and action orientation/delivery of results. I am unable to form the view on the material before me that the draft PIP was warranted because of those matters.
As is well known, in adverse actions matters, there is a reverse onus and a person takes an action for a particular reason if it is one of the reasons for the action.
Section 360 of the Act provides that:
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Nevertheless, to be the reasons for the adverse action, the reason needs to be a substantial and significant reason: General Motors-Holdens Pty Ltd v Bowling (1976) 12 ALR 605; (1976) 51 ALJR 235.
Section 361 of the Act provides that:
(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.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
Under that section, the court must accept that the reason that Asaleo presented Mr Lees with a draft PIP was the reason Mr Lees alleged, namely, because he made the first to fifth employment complaints and made an application to the Fair Work Commission, unless Asaleo proves otherwise.
Asaleo submitted that this was a serious matter, so the Briginshaw standard applied. If that is so, Asaleo would have to prove otherwise on the Briginshaw standard.
Whether or not the Briginshaw standard applies, I do not consider that Asaleo has proved otherwise. The credibility of its witnesses was diminished by its inaccurate claim that the PIP was required by the settlement of the Fair Work Commission proceeding. The transgressions that Asaleo said warranted Mr Lees being required to enter into the PIP did not warrant it. I am not persuaded by Asaleo’s claims.
I am satisfied that Asaleo took adverse action against Mr Lees for a prohibited reason by presenting him with the draft PIP.
WHY DID ASALEO DISMISS MR LEES?
Asaleo did not suggest that it dismissed Mr Lees because he was not procuring materials properly, or because of his communication style. The reason offered in the termination letter dated 11 March 2020 was misconduct consisting of Mr Lees’ “outright refusal” to participate in the PIP process.
The termination letter said:
Re: Termination on the grounds of misconduct
Dear Stuart,
Further to our discussion I confirm that effective today, 11 March 2020, your employment with Asaleo Personal Care Pty Ltd (the Company) has been terminated.
As you are aware, a meeting took place on Tuesday 3 March which was attended by you, David Griss, Executive General Manager People & Corporate Services, and me. The purpose of this meeting was to discuss a matter involving a fellow employee, Lou Sherman and to also discuss our performance concerns regarding your behaviour and leadership, concerns that you and the Company committed to discussing as part of the Fair Work Commission orders finalised in January 2020. More specifically, we highlighted a number of areas detailed in a Performance Improvement Plan (PIP) which required further consideration and development on your part. I have spoken to you about the need to improve your leadership and behaviour towards others (including but not limited to the need to collaborate more effectively) on numerous occasions.
Amongst the issues discussed with you, was your conduct and behaviour towards a fellow colleague, Lou Sherman. We informed you that your recent written communication towards Lou had been perceived by her as demeaning and threatening and we requested that you consider how you might address this concern.
We set a meeting with you on Tuesday 10 March to further discuss the PIP and the issue with Lou. However, you have refused to meet with us on the basis that you refute the contents of the PIP and its perceived purpose.
As a result of your outright refusal to participate in this process which is intended to support you to improve in your role, we have been left with no choice but to terminate your employment on the grounds of misconduct. As per your contract of employment, you will receive 2 months’ pay in lieu of notice of termination in addition to any accrued leave entitlements. Your last day of employment is today. Your final pay and entitlements will be paid into your nominated account.
Please find enclosed information regarding Asaleo Care’s Employee Assistance Program (EAP) which provides free counselling services. Asaleo Care has extended your access to this service post termination.
We would like to take this opportunity to wish you all the best for the future.
Yours sincerely,
David Elliston
General Manager Supply Chain
Asaleo Care
In its closing submissions, Asaleo said that it had dismissed Mr Lees because:
(a)it was entitled to under his contract of employment;
(b)he had refused to provide input into, meet about, and comply with the PIP; and
(c)he had said he would summarily terminate the contract of employment himself, so his continued employment was not possible.
In his closing submissions on this issue, Mr Lees said that the reason given in the termination letter for his dismissal was his refusal to participate in the PIP process. The PIP process required him to give feedback on the draft PIP. Mr Lees said that he provided that feedback, saying that he did not accept the premise of the PIP, which was that his communication with Ms Sherman was so bad that it warranted a PIP.
As discussed above, Mr Lees’ communication with Ms Sherman was not so bad that it warranted a PIP. Asaleo’s reaction to the panache email and Mr Lees’ other emails was exaggerated and unjustified.
Mr Lees also took issue with Mr Elliston and Mr Griss saying they had no choice but to terminate Mr Lees’ employment. Mr Lees said that they had other options, including:
(a)giving Mr Lees a warning;
(b)directing Mr Lees’ to attend a meeting;
(c)imposing the PIP and setting a review date;
(d)adopting Mr Lees’ suggestion of him having a telephone discussion with Ms Sherman to resolve their issues.
That submission is obviously correct, even if Asaleo had genuine concerns about Mr Lees’ communication style. There were options besides terminating Mr Lees’ employment.
The notion that Asaleo had to terminate Mr Lees’ employment because he had said that he would leave the company is nonsensical, as is the notion that Asaleo terminated Mr Lees’ employment because it could.
Mr Lees noted that Mr Hockley had sent another email on 10 March 2020, the day before the termination. It was in the following terms:
From: Peter Hockley
Sent: Tuesday, 10 March 2020 7:20 AM
To: David Elliston <[email protected]>; David Griss <[email protected]>; Hennie Peters <[email protected]>; Paul Honey <[email protected]>
Subject: Stuart Lee’s
David/Hennie
Following the recent incident where Stuart Lees’ unacceptable behaviour caused anxiety and concern for Lou Sherman, I want to express my position going forward. Stuart’s response directed to Lou was totally unacceptable in that Ian Shepherd had expressed his concern and clearly said to discuss directly with him. This was typical of the way that he behaves and is not acceptable to us.
Over many months, I have expressed my concerns over the tone in his emails and his disrespect for our team at site. Stuart is not a team player and this does not fit with the Kawerau team who have always worked collaboratively and co‐operatively. Stuart represents the Kawerau site with pulp ordering and we are constantly having to chase him for communication and response. He hasn’t secured the Amcor account which puts the site at risk. Stuart does not communicate what he is doing and does not involve people in things that concern them, an example being his visit to NZ planned recently where he failed to include any of us in his planned visits to suppliers. Stuart does not communicate that he is visiting nor plan that visit with us.
Taking all of this into account, it is clear that the relationship is broken beyond repair, and I do not want to work with Stuart Lees going forward, and do not want him at our site. We respectfully request that someone else manages all purchasing for Kawerau site from now on.
I am happy to discuss further should you wish to do so.
Thanks
Peter
Mr Lees noted the curious timing of this email, suggesting that it was part of a staged campaign against him. However, Asaleo did not cite the matters Mr Hockley raised as the reason for terminating Mr Lees’ employment. Rather, Asaleo relied on Mr Lees’ refusal to meet with Mr Elliston about the draft PIP.
Under s.361 of the Act, the court must be satisfied that Asaleo dismissed Mr Lees for the reason he alleges, unless Asaleo proves otherwise. Taking into account all of the evidence in this matter, I am not persuaded that Asaleo has discharged the reverse onus of proof. As discussed above, the credibility of Asaleo’s witnesses was damaged by their misrepresentation about the requirements of the Fair Work Commission settlement. The PIP process was not warranted by Me Lees’ communications with Ms Sherman. The panache email incident was overblown. Asaleo had many other options on 11 March 2020 besides terminating Mr Lees’ employment. The termination of his employment for not participating in the PIP process, where that process was not justified in the circumstances, undermines Asaleo’s claim that Mr Lees was dismissed for misconduct consisting of him not complying in the PIP process.
In the absence of a more rational explanation, I am satisfied that Asaleo took adverse action against Mr Lees for a prohibited reason by dismissing him on 11 March 2020.
ANNUAL PERFORMANCE REVIEWS
It was common ground that, under Mr Lees’ contract of employment, he was entitled to annual performance reviews. Clause 7 of his contract of employment stated:
7. PERFORMANCE REVIEW
Your performance will be reviewed against agreed Key Accountabilities on a regular basis during the year and formally at least annually. The intention of this review process is to optimise your contribution towards achieving business objectives and to proactively identify any development needs.
Mr Lees said that he did not receive formal performance reviews annually from around August 2016.
Asaleo said that Mr Elliston regularly discussed performance and goal setting with Mr Lees, but that Asaleo’s annual performance review IT platform was not operational during 2018 and 2019.
Asaleo said that if the complaint was that formal reviews were not provided (as the contract of employment requires), then it was de minimus, as Mr Lees received pay rises in 2016, 2017, 2018 and 2019, a STIP payment of $7,581 in 2016 and a promotion from Strategic Category Manager to Sourcing Manager in 2018. Asaleo, in effect, conceded that Mr Lees was not given formal annual reviews.
Mr Lees submitted that at least nominal damages ought to be payable for the breach, because he had been deprived of the opportunity to rectify any alleged performance concerns and continuing employment.
I accept that Asaleo breached its employment contract with Mr Lees by not providing him with formal performance reviews at least annually after August 2016.
The parties agreed that any remedies would be addressed in a separate hearing. So I will leave the question of any damages to that hearing.
THE SHORT TERM INCENTIVE PLAN
Mr Lees said that Asaleo did not establish a STIP in 2018, in breach of his contract. Mr Lees said that he was thereby deprived of the opportunity to earn a STIP payment in 2018.
It was common ground that Mr Lees was entitled to participate in Asaleo’s STIP for 2018, which could have resulted him receiving a bonus of 20% of his annual salary. He received such a bonus in 2016, but did not receive one in 2018.
Mr Griss said that Mr Lees did not receive a STIP payment in 2018 or 2019, and no one did, because a condition of the STIP was not satisfied in either of those years: paragraphs 94 to 96 of his affidavit sworn on 17 June 2021. That condition was that Asaleo reached its gateway target for earnings before interest, taxes, depreciation and amortisation. Mr Lees conceded in cross-examination that Asaleo did not reach that target: Tr. p.13, l.8.
Consequently, there was no basis on which Mr Lees could have received a STIP payment in 2018. This claim is not made out.
REDUNDANCY
Mr Lees said that, by reason of Mr Elliston advising him on 12 July 2019 that:
(a)he would not be appointed to the position of Procurement Manager in Asaleo’s new Procurement Team; and
(b)three category managers who had been reporting to Mr Lees would now report to Mr Elliston instead,
he was given notice of redundancy.
Mr Lees said that, under s.119 of the Act, he was entitled to 10 weeks redundancy pay. Section 119 of the Act relevantly provides that:
An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:
(a)at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer.
Asaleo did not dispute that, if Mr Lees had been entitled to redundancy pay, he would have been entitled to 10 weeks’ pay. However, Asaleo maintained that Mr Lees’ role was not redundant.
Mr Lees relied on Finance Sector Union of Australia v Commonwealth Bank of Australia (2001) 111 IR 241; [2001] FCA 1613 for the proposition that a substantial change in duties may render a position redundant. It seems that Mr Lees was referring to paragraph 90 of that judgment, where Moore J said:
That is not to say, however, that a substantial change in duties would not constitute a redundancy situation. It would because either all of the duties or most of them were no longer required to be done. Such situations would mean that the work or a substantial part of it was no longer required to be done as well.
Mr Lees also relied on Mackay Taxi Holdings Ltd t/a Mackay Whitsunday Taxis v Wilson (2014) 240 IR 409; [2014] FWCFB 1043 for the proposition that a redundancy may arise where the employer wishes to create new and higher-level duties for a particular role, even if it incorporates many of the former tasks performed by the employee. In that case, the Full Bench of the Fair Work Commission said:
[42]On the unexamined and uncontested evidence before the Commissioner, the job as it had been had become a more complex job at the higher end, requiring the exercise of duties by a person who was a qualified bookkeeper, which the Respondent was not. The fact that a body of the former duties associated with the Respondent's position continued to be required to be performed in whole or in part is beside the point.
[43]The operational objective on the part of the Appellant to rely on the qualified services of a bookkeeper to improve the “capacity of the administration to function at a higher level” brought about a real and genuine change to the position as it had been performed by the Respondent. This is the kind of change that ordinarily would give rise to a redundancy (where the incumbent does not possess the qualifications to give effect to the operational objective).
Mr Lees also relied on Gamboni v Bendigo and Adelaide Bank Ltd (2013) 39 VR 578; [2013] VSCA 92 for the proposition that a reduction in duties and a change in reporting lines gives rise to a redundancy. In that case, the Court of Appeal said:
82For the above reasons, when the attributes of the work that Mr Gamboni was required to perform prior to the reorganisation are compared with the attributes of the post-reorganisation work, the evidence overwhelmingly points to the conclusion that, in substance, the major portion of the pre-reorganisation work was not required after the reorganisation. The trial judge erred by confining his analysis to whether “the task of looking after [Mr Gamboni’s] portfolio of commercial borrowers” continued to be required after the reorganisation.
83It follows that Mr Gamboni has satisfied one of the alternative bases for qualifying for a redundancy payment under the Policy.
84In case my conclusion at [83] above is wrong, I will now consider whether Mr Gamboni satisfied the alternative basis for qualifying for a redundancy payment under the Policy, namely, that the major portion of his pre-reorganisation position was not required after the reorganisation.
Was a major portion of Mr Gamboni ’s position no longer required?
85Mr Gamboni submitted that the trial judge failed to properly consider whether the major portion of his pre-reorganisation position was required after the reorganisation because his Honour inappropriately conflated the concepts of work and position. Mr Gamboni contended that important features of his pre-reorganisation position did not survive the reorganisation. Those features included, so it was said, the nature of the work that Mr Gamboni was required to perform, the title, the reporting lines and the level of autonomy and responsibility.
86The Bank submitted that, after the reorganisation, Mr Gamboni retained his salary and status as a senior manager and was required to perform essentially the same work. It followed, so it was said, that the major portion of Mr Gamboni’s pre-reorganisation position was still required.
87I agree with Mr Gamboni’s submission that the trial judge conflated the concepts of work and position and failed to adequately consider as a separate question whether the major portion of Mr Gamboni’s pre-reorganisation position remained after the reorganisation.
88The concept of “position” in the present context includes at least the following features:
(a)       the nature of the work attached to the position;
(b)       the title that is associated with the position;
(c)       the status and seniority of the position;
(d)the reporting lines associated with the position, including the number and seniority of the persons reporting to that position and the seniority of the superiors to whom that position reports; and
(e)       the level of autonomy associated with the position.
89The trial judge focused primarily on (a) and (b) above. But, when the other matters are considered in the light of the evidence, the conclusion to which I have come is that the major portion of Mr Gamboni’s pre-reorganisation position was not required after the reorganisation.
90In relation to (a), for the reasons discussed at [63] to [83] above, the major portion of Mr Gamboni’s pre-reorganisation work was not required after the reorganisation.
91In relation to (b), the reorganisation resulted in the abolition of the title Senior Manager, Property Finance. While it was likely that Mr Gamboni would have held the title of Senior Manager, Business Banking, for the reasons set out at [74] above, Mr Gamboni was ill-suited to perform the functions associated with this role. There had only been one Senior Manager, Business Banking in Region 340. The Bank failed to adequately explain the role to be performed by Mr Gamboni as a second Senior Manager, Business Banking for that Region and how the two positions would interact.
92In relation to (c), at no stage were the status and seniority of Mr Gamboni’s proposed position of Senior Manager, Business Banking articulated by the Bank. In particular, the Bank did not articulate whether the position that Mr Gamboni was to occupy would have exactly the same status and seniority as the incumbent Senior Manager, Business Banking of Region 340 (Mr McGregor). It was clear, however, that Mr Gamboni would no longer be the head of a separate business unit and would no longer have the status or the responsibilities associated with such a position.
93In relation to (d), while the reporting lines to Mr Gamboni’s proposed position of Senior Manager, Business Banking were finalised, the reporting lines from that position were not finalised.
94Prior to the reorganisation, a manager and a lending officer reported to Mr Gamboni whereas, after the reorganisation, only a lending officer would report to him. Generally speaking, the number of persons reporting to a position and their seniority have a bearing on the status of that position. While a reduction of a single person may not appear significant in absolute terms, in the present case it represented a 50% reduction in the number of Mr Gamboni’s subordinates. It also represented a loss of the most senior staff member. This loss not only indicated a diminution in the status of Mr Gamboni’s position, it also affected the quality of the work that he would be able to perform. Instead of mentoring and supervising a manager who would be able to look after 80% of the commercial property loan portfolio, after the reorganisation, Mr Gamboni would only be able to mentor a lending officer and would be required to personally manage the entire commercial property loan portfolio.
95The lack of clarity about the position to which Mr Gamboni would report created considerable uncertainty about the status and seniority of his proposed position as Senior Manager, Business Banking. Prior to the reorganisation, Mr Gamboni reported to a very senior executive, Mr Opie, who was the Chief Manager Lending. Following Mr Opie’s departure, Mr Gamboni reported to Mr Opie’s successor, David Pugh. It is not clear whether, upon his return from extended leave, Mr Gamboni would have reported to Mr Whiting, Mr Rodda or to some other executive.
96In relation to (e), prior to the reorganisation, Mr Gamboni headed a stand-alone department with some autonomy concerning business development activities and budgets. Following the reorganisation, the Unit’s commercial property portfolio was absorbed by the Business Banking Unit of Region 340. The attributes of Mr Gamboni’s position that were associated with heading and leading an autonomous department disappeared after the reorganisation.
97In my opinion, the discussion at [87]–[96] above inexorably leads to the conclusion that the major portion of Mr Gamboni’s pre-reorganisation position was not required after the reorganisation.
98It follows that Mr Gamboni has made out his grounds of appeal. Accordingly, unless the order below can be upheld on the basis of the Bank’s notice of contention, the appeal must be allowed. I now turn to the notice of contention.
(footnotes omitted).

Mr Lees also relied on Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308 where Ryan J said:
It has generally been accepted that a dismissal is not unfair if it results from genuine redundancy, in the sense that an employee is no longer required to perform his or her job because of changes in operational requirements. In Rv Industrial Commission of South Australia; Ex parte Adelaide Milk Co-operative Ltd (1977) 44 SAIR 1202, Bray CJ defined redundancy at 1205, where he stated:
‘‘a job becomes redundant when an employer no longer desires to have it performed by anyone.’’
That definition was endorsed by a Full Bench of the Australian Conciliation and Arbitration Commission in the Termination, Change and Redundancy Case (1984) 8 IR 34at 55-56.
On Mr Jones’ evidence, this case would not satisfy that narrow definition of genuine redundancy, as some of his former duties were still being performed. However, it should be noted that Bray CJ’s description of what can constitute redundancy is not expressed to be exclusive. His Honour’s description was cast in terms of a ‘‘job’’ in the sense of a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation, to a particular employee. However, it is within the employer’s prerogative to rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. It is inappropriate now to attempt an exhaustive description of the methods by which a reorganisation of that kind may be achieved. One illustration of it occurs when the duties of a single, full-time, employee are redistributed to several part-time employees. What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant in the sense in which the word was used in the Adelaide Milk Cooperative case.
In this case, the respondent led evidence of the major changes which were made to the Department between September 1993 and late 1994. According to Mr Downie, the applicant’s former position as Director, Mining Inspectorate, was abolished and the duties attached to it were combined with those of the previous Director, Environmental Management. In addition to a number of other, newly-created functions, those pre-existing duties were to be performed by a newly created General Manager, Mineral Operations. Thus, it is clear that although some of the tasks previously assigned to Mr Jones still had to be carried out, the employer’s rearrangement of its operational structure had the consequence that they be combined with other functions and performed by the holder of a new, more generally-oriented position.
On this basis, it appears that Mr Jones’ former position was rendered ‘‘genuinely redundant’’. When it became apparent that he could not be redeployed, Mr Jones was found to be surplus to the respondent’s personnel needs. This amounted to a reason for dismissal which was clearly based on his employer’s operational requirements.
Mr Lees also relied on Quality Bakers of Australia Ltd v Goulding (1995) 60 IR 327 at 332, where Beazley J said:
… A redundancy will arise where an employer has labour in excess of the requirements of the business; where the employer no longer wishes to have a particular job performed; or where the employer wishes to amalgamate jobs: R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-operative Ltd (1977) 44 SAIR 1202 per Bray CJ at 1205; Gromark Packaging v FMWU (1992) 46 IR 98, per Franklyn J at 105. It is not necessary for the work to have disappeared altogether. As was said in Bunnetts’ case (Bunnett v Henderson’s Federal Spring Works Pty Ltd) (1989) AILR 356:
‘‘Organisational restructuring may result in a position being abolished and the functions or some of them being given to another or split amongst others.’’
On the other hand, Asaleo relied on McAlister v Yara Australia Pty Ltd (2021) 307 IR 300; [2021] FCCA 1409 at [235]-[246]. In that case, Judge Obradovic said:
235Ms McAlister’s claim for redundancy is based on a premise that her employment ended on 16 October 2015.
236…
237Whether a redundancy has occurred has been described in the following manner:
What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the reorganisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…
(Jones v Dept of Energy and Minerals (1995) 60 IR 304 at 308; see also Macken at [9.170]).
238It has been accepted that an employee’s position is redundant where the duties that go to make up that position are split up and spread amongst other employees. It is not necessary for the work to have disappeared altogether. Organisational restructuring may result in a position being abolished and the functions or some of them being given to another or split amongst others. (Quality Bakers of Australia Ltd v Goulding (1995) 60 IR 327 at [332]–[333]).
239There are two limbs to s 119(1), the first being whether “the employee’s employment is terminated at the employer’s initiative” and the second being whether there was a termination “because the employer no longer requires the job done by the employee to be done by anyone”.
240The issue as to whether termination is at the initiative of the employer under s 119(1) is plainly “a question of fact to be determined on the evidence before the Court or tribunal called upon to determine these question” (CAE Australia Pty Ltd v Zekants [2012] FWA 7992 at [11] , cited in Nair v Queensland University of Technology, [2019] FCCA 1709 (Nair) at [112]).
241In Nair, Judge Jarrett at [94] provided the following summary as to the matters which are relevant in assessing whether an employee’s job had ceased to exist for practical purposes:
a)the examination of the position and whether or not it has been made redundant must be undertaken as a matter of substance, not form;
b)the concept “cannot be applied in the manner of a mathematical formula … fact that the duties attached to a position have changed or some responsibilities have been transferred to other positions does not establish that the position, or the occupant of the position,has been made redundant”: UGL Rail Services Ply Limited v Janik [2014] NSWCA 436 at [132].;
c)the question may be approached by asking whether the position has been abolished or largely stripped of its functions (as a matter of substance, not form);
d)to what degree this needs to be the case can be stated in various ways, including (according to UGL Rail Services Ply Ltd v Janik (above)):
i)where the change is so substantial that for practical purposes the position no longer exists;
ii)where the position appears to continue (whether under the same or a different name) but the duties and responsibilities are so substantially altered that it is largely stripped of its functions; or
iii)where the position is effectively emptied of duties and in reality abolished or has effectively ceased to exist or at least the duties had been fundamentally changed so as to largely strip it of its functions.
242The test is whether the “job” previously held by Ms McAlister still existed after 15 October 2015 (see Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674 at [27] ).
243Prior to April 2015, Ms McAlister’s role of Administration, Logistics and HR Manager and had wide and varied responsibilities as described earlier in these reasons. Yara did not terminate Ms McAlister’s employment in April 2015. It offered her a new role which she accepted, by electing to continue her employment with Yara. The “job” which Ms McAlister performed until 13 April 2015, ceased to exist after that date. It was as at 13 April 2015, Ms McAlister’s job as Administration, Logistics and HR Manager was effectively made redundant. However, her employment was not then terminated.
244An employee has no right to make a legal claim that their employment be terminated pursuant to s 119. Yara had no duty to dismiss Ms McAlister at the time it made her job redundant in April 2015 (Unsworth v Tristar Steering and Suspension Australia Ltd [2008] FCA 1224 at [27] ).
245At the time of the termination of her employment on 16 October 2015, there was no redundancy of Ms McAlister’s job. Her employment was terminated for reasons other than redundancy. Yara made no decision to terminate Ms McAlister’s employment in April 2015 or at any time afterwards on the basis of redundancy.
246Ms McAlister’s claim for redundancy is not made out.
Unsworth v Tristar Steering and Suspension Australia Ltd (2008) 216 FCR 122; (2008) 175 IR 320; [2008] FCA 1224 at [27] is as follows:
If there were a duty to dismiss, to whom was it owed? The argument seems to be that Tristar owed a duty to every employee covered by the Certified Agreement to dismiss that employee during the course of 2006 when major manufacturing ceased. However, manufacturing and remanufacturing work continued for some time thereafter and, as I have said, Tristar was genuine in seeking that and other business. It was entitled to retain employees to carry out that actual and potential work. Once the employer has that choice, then no individual employee could claim that there was any obligation upon Tristar to dismiss that employee in order to trigger cl 21.5.
As can be seen, Unsworth concerns a somewhat different situation to the one that arose in McAlister. In Unsworth, there was no suggestion that any individual jobs had changed. Rather, major manufacturing ceased, and what remained was some manufacturing and remanufacturing.
The point in McAlister seems to be that Ms McAlister’s job did become redundant in April 2015, but she then accepted a different job with her employer. She was dismissed from that position in October 2015 in circumstances that were found to amount to wrongful termination, but not redundancy.
In the present case, Mr Lees accepted that he did not allege that an entitlement to a redundancy crystallised in 2019, and accepted that Asaleo had correctly pointed out that McAlister would be against any such claim succeeding. Mr Lees said that his entitlement to a redundancy arose on the termination of his employment on 11 March 2020.
Therefore, it is necessary for the court to determine whether Mr Lees’ position was redundant on 11 March 2020, not whether it became redundant on 12 July 2019, and not whether it was redundant when Mr Lees asked for a redundancy payment on 14 July 2019. In effect, Mr Lees has accepted that he accepted another position with Asaleo when he remained in Asaleo’s employment after 12 July 2019.
It will be recalled that s.119 of the Act provides that a position is redundant if:
the employer no longer requires the job done by the employee to be done by anyone[.]
Mr Lees said that, after he was dismissed on 11 March 2020, his tasks were distributed amongst other employees. Asaleo said that was correct, but only on an interim basis, because Mr Lees left suddenly, and the work still needed to be done. That makes perfect sense. The redistribution of work to others, in the circumstances of a person leaving suddenly, do not mean that his position is redundant.
Mr Lees then said that, later in 2020, there was another restructure and his position did cease to exist. Mr Griss confirmed in his oral evidence that Asaleo did not recruit another sourcing manager: Tr. p.154, l.33. However, Mr Griss said that Asaleo did need a sourcing manager, and if Mr Lees had not been dismissed from his employment, he would probably still be in his position. Mr Griss said that, four, five or six months after Mr Lees’ dismissal, there was another restructure, in which Mr Elliston’s positon became redundant. Mr Elliston’s previous position was split into two, with one focussing on Australian logistics and one focussing on procurement. Those positions were more senior than the one that Mr Lees had occupied.
Mr Griss’ evidence on this point was not effectively challenged and I accept it. It follows that Mr Lees’ position was not redundant on 11 March 2020. He was not entitled to a redundancy payment.
CONCLUSION
As Mr Lees’ adverse action claims and his claim about annual performance reviews have been made out, I will make declarations accordingly, and hear the parties on the further conduct of the matter.

I certify that the preceding one hundred and fifty-four (154) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley .
Associate:
Dated: 10 December 2021

File number(s):	MLG 2194 of 2020
Judgment of:	JUDGE RILEY
Date of judgment:	10 December 2021
Catchwords:	INDUSTRIAL LAW – adverse action claim – whether being presented with a draft performance improvement plan and being dismissed constituted adverse actions for prohibited reasons – whether there were breaches of an employment contract by not conducting formal annual performance reviews after 2016 and not establishing a short term incentive plan in 2018 – whether the applicant’s position was made redundant.
Legislation:	Fair Work Act 2009 (Cth), ss 119, 340, 341, 342, 360 and 361
Cases cited:	Alam v National Australia Bank (2021) 393 ALR 629; [2021] FCAFC 178 Construction, Forestry, Mining and Energy Union (CFMEU) v Coal and Allied Operations (1999) 140 IR 131; [1999] FCA 1531 Community and Public Sector Union v Telstra Corp Ltd (2001) 107 FCR 93; (2001) EOC 93-134; (2001) 104 IR 195; [2001] FCA 267 Cigarette and Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46); (2019) 285 IR 290; [2019] FCAFC 16 Finance Sector Union of Australia v Commonwealth Bank of Australia (2001) 111 IR 241; [2001] FCA 1613 Gamboni v Bendigo and Adelaide Bank Ltd (2013) 39 VR 578; [2013] VSCA 92 General Motors-Holdens Pty Ltd v Bowling (1976) 12 ALR 605; (1976) 51 ALJR 235 Guerinoni v Synthes Australia Pty Ltd [2016] FCCA 1710 Kimpton v Minister for Education of Victoria (1996) 65 IR 317 Klein v Metropolitan Fire and Emergency Services Board (2012) 208 FCR 178; [2012] FCA 1402 Mackay Taxi Holdings Ltd t/a Mackay Whitsunday Taxis v Wilson (2014) 240 IR 409; [2014] FWCFB 1043 McAlister v Yara Australia Pty Ltd (2021) 307 IR 300; [2021] FCCA 1409 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; (1998) 153 ALR 643; (1998) 72 ALJR 873; [1998] 8 Leg Rep 2; (1998) 27 ACSR 535; (1998) 16 ACLC 1041; (1998) 79 IR 339; [1998] HCA 30 PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225; (2020) 292 IR 317; [2020] FCAFC 15 Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244; [2012] FCAFC 63 Shea v TRUenergy Services Pty Ltd(No 6) (2014) 314 ALR 346; (2014) 242 IR 1; [2014] FCA 271 Unsworth v Tristar Steering and Suspension Australia Ltd (2008) 216 FCR 122; (2008) 175 IR 320; [2008] FCA 1224
Division	Division 2 General Federal Law
Number of paragraphs:	154
Date of last submission/s:	16 November 2021
Date of hearing:	14 and 15 October 2021
Place:	Melbourne
Counsel for the applicant:	Rohan Millar
Solicitor for the applicant:	McDonald Murholme Solicitors
Counsel for the respondent:	Leigh Howard
Solicitor for the respondent:	Clayton Utz

MLG 2194 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	Stuart Lees Applicant
AND:	Asaleo Personal Care Pty Ltd (ACN 005 442 375) Respondent

ORDER MADE BY:	JUDGE RILEY
DATE OF ORDER:	10 December 2021