Lingli Zheng v Poten & Partners (Australia) Pty Ltd - [2022] FWC 950

[2022] FWC 950

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lingli Zheng
v

Poten & Partners (Australia) Pty Ltd

(U2020/13343)

DEPUTY PRESIDENT BEAUMONT

PERTH, 28 APRIL 2022

Application for an unfair dismissal remedy – performance or conduct - application dismissed.

Ms Lingli Zheng applied for an unfair dismissal remedy on 7 October 2020. Poten & Partners (Australia) Pty Ltd (the Respondent), her former employer, objected to the application on the basis that Ms Zheng was not a person protected from unfair dismissal. The matter proceeded to arbitration and on 3 November 2021, the Full Bench determined that Ms Zheng was so protected. Subsequently, the matter was remitted for a determination of the merits of Ms Zheng’s application.

Ms Zheng holds a Bachelor of Engineering (Hons) in chemical engineering and a Master of Science in Molecular Engineering of Biological & Chemical Systems. Both qualifications are from the National University of Singapore. Prior to commencing employment with the Respondent, Ms Zheng had worked for the Royal Dutch Shell Group of Companies from December 2006 to April 2017.

The Respondent employed Ms Zheng as an LNG Consultant or a Natural Gas and LNG Consultant from 6 August 2018 until 18 September 2020.

The Respondent provides a consulting service that provides technical, market, commercial and shipping and marine advice to the LNG and natural gas industries. It is the Australian subsidiary of a global brokerage and financial technology business of which BGC Partners, Inc is the ultimate holding company (the Group). The Respondent was acquired by the Group in, or around, November 2018. The Group has another subsidiary, Merlin Advisors, LLC, which is an engineering and technical group.

Whilst the reasons for the decision are long, in short, I can say that I am unable to conclude that Ms Zheng’s dismissal was harsh, unjust or unreasonable, and as such, have dismissed her application on the basis that she was not unfairly dismissed. In doing so, I am satisfied that this outcome has ensured a ‘fair go all round’ is accorded to both Ms Zheng and the Respondent.

Background

Detailed versions of events were provided, and the witnesses were many. The broader context and events leading to the conclusion of the employment were as follows.

The Perth office of the Respondent, where Ms Zheng was based, is part of the Group’s APAC consulting team, which also includes an office in Singapore. As of 18 September 2020, there were approximately nine employees in the APAC consulting team:

a) the following six employees were based at the Perth office:
i.Mr Will Pulsford;

ii.Mr. Ming Cai;
iii.Mr. Chris Rumley;
iv.Ms Gayoung Kim;
v.Mr. Jeremy Brown;
vi.Ms. Lingli Zheng; and

b) the following three employees were based in Singapore:
i.Ms Kerry Anne Shanks;

ii.Mr Edi Saputra; and
iii.Ms Yaxin Duan.

From around 1 November 2018, Ms Zheng reported to Mr William Pulsford; Manager - Asia Pacific Consulting.

Mr Pulsford has an extensive work history in oil and gas.[1] He previously occupied the roles of GM Production & Development at Buru Energy Limited, acted as the Chief Operating Officer at Buru Energy Limited, was the Chief Executive Officer at RISC, worked in LNG Project Development Planning at Chevron, and was the Development Manager and Development Engineer at Woodside and Shell respectively.[2] Having started at the Respondent as the Upstream Business Lead and Senior LNG Consultant, he was promoted to Manager of Consulting in October 2018.[3]

Like Ms Zheng, Mr Pulsford holds numerous qualifications and memberships. These include a Masters in Engineering Science from Oxford University and being a Chartered Engineer of the Institution of Mechanical Engineers and Member of Engineers Australia.[4] At the time of Ms Zheng’s employment, Mr Pulsford was responsible for the overall management of the APAC team, which included:

a)   marketing, capture of projects and contract negotiation;
b)   ensuring projects were delivered on time to the satisfaction of clients;
c)   people management;
d)   ensuring projects were resourced correctly with the appropriate talent; and
e)   the completion of technical and commercial project work.

The Respondent’s business is said to involve the provision of consulting services in the form of technical, market, commercial, shipping and marine advices to the LNG and natural gas industries.[5] This involves providing advice to clients throughout the gas and broader energy supply chain in relation to matters such as:

a)   site selection and feasibility of new LNG terminals;
b)   due diligence for lenders and investors in gas and LNG projects;
c)   LNG market pricing assessments and forecasts;
d)   LNG supply and demand forecasts;
e)   LNG procurement support;
f)   commercial structuring and negotiation support;
g)   LNG shipping strategy, markets and charter negotiations; and
h)   gas and LNG strategy and master planning.[6]

The Respondent’s projects can be broadly described as falling within four subsets, namely:

a)   commercial projects;
b)   shipping projects;
c)   technical projects and asset development; and
d)   market related projects.

Mr Pulsford explained that the lifecycle of a typical project can be described in the following way:

a)   the Respondent will be invited to put forward a proposal either individually or as part of a competitive tender process. This generally involves initial meetings with the client to understand the project and how the team may be able to assist. In some instances, the team may need to submit a joint bid for tender and will need to work collaboratively with other consulting firms to prepare this;
b)   if the Respondent is successful in winning the work, Mr Pulsford will negotiate contract terms with the client governing the assignment;
c)   once engagement terms are agreed, the Respondent mobilises a project team. Generally, there will be two to four people working on each project, depending on its size. Mr Pulsford is responsible for ensuring each project has the correct resources. For example, if the project is more technical in nature, he ensures someone with appropriate technical skills is allocated to the project;
d)   once the project team is determined, a ‘kick-off meeting’ is held and planning undertaken on how to split up what each person will be responsible for;
e)   once the deliverables are set, there are regular meetings on a weekly basis or as required by the scope, to catch up on how the project team is tracking against schedule and discuss variations or extensions to the scope that often arise; and
f)   Mr Pulsford is ultimately responsible for reviewing and approving any work that goes out to clients, or for assigning a Senior Consultant to perform that review.[7]

It was explained that as multiple people work on a project at any given time, the Respondent had in place strict naming conventions and file management processes which were communicated to new starters on commencement.[8]

Mr Pulsford explained his part in recruiting Ms Zheng, noting that at the time he held the position of Upstream and LNG Senior Consultant. His APAC Manager was Mr Stephen Thompson who went on to relocate to the United States assuming the role of Global Head of LNG & Natural Gas Consulting.[9] Mr Pulsford said that he had identified a need to hire someone with greater technical expertise and was involved in screening candidates.[10] Having interviewed several candidates, he provided a shortlist to Mr Thompson and Mr Ilmars Kerbers, the Technical Division Lead of Merlin, a subsidiary of the Respondent.[11] Ms Zheng was on that shortlist and ultimately was the successful candidate.[12] Mr Pulsford reiterated that Ms Zheng was employed to work predominately on technical studies and asset development projects.[13]

The terms and conditions of Ms Zheng’s employment were governed by a written contract of employment dated 27 July 2018 (Contract). The Contract provided that Ms Zheng:

a)   held the position titled LNG Consultant (cl 2.1 and Schedule 1);
b)   would carry out her duties in a proper, loyal and efficient manner and would comply with all reasonable lawful instructions given to her (cl 2.4);
c)   must comply with the Respondent’s policies as issued or amended from time to time (cl 25).

During her employment, Ms Zheng was assigned to work on a number of projects including:

a)   OMV Malaysian LNG Market Analysis in 2018;
b)   CEB Mauritius Import Concepts in around 2018 to early 2019;
c)   Import Terminal in 2018 and 2019;
d)   LNG Backfill in around late 2018 and early 2019;
e)   LNG Price and Shipping Benchmark in 2019;
f)   LNG Price Review Support in 2019;
g)   LNG Shipping & Terminal Interface from around April to July 2019;
h)   Capability Assessment from around August to December 2019;
i)   LNG Import Terminal Feasibility Study in Thailand from around December 2019 to May 2020;
j)   IWO6 Price Review Data from June 2020 to around July to August 2020;
k)   IWO8 Study of Hydrogen Fuel Value Chain & Technologies Options from around July to September 2020; and
l)   Global LNG Outlook (GLO)- the Respondent’s regular update on its publishment.

Mr Pulsford acknowledged that the working relationship with Ms Zheng started well with her completing a number of technical and commercial studies.[14] These studies included a Mauritius LNG import terminal project, New Caledonia LNG import terminal project, market demand forecasts, price reviews and a KOGAS capability assessment in 2018 and 2019.[15] Mr Pulsford stated that there were no particular issues with Ms Zheng’s work at this point.[16]

During 2019, Mr Pulsford stated that he identified the emergence of some concerning issues regarding Ms Zheng’s conduct and performance.

1.1The ‘correlation’ incident

In April 2019, Ms Zheng was asked to complete a price review project. Mr Pulsford noted that the project was more commercial than technical.[17] It appears uncontroversial that the project involved researching and analysing the current market prices for LNG and advising the Respondent’s client on how to approach upcoming price negotiations. However, what is controversial is the discussion held regarding the issue of ‘correlation’. Mr Pulsford reports that the discussion resulted in Ms Zheng becoming angry and defensive and Ms Zheng reports that she did not like being treated like an idiot and that the discussion with Mr Pulsford was not an appropriate discussion. Ms Zheng appeared to have been affronted by Mr Pulsford’s tone in the conversation.

Mr Pulsford recounts that he attempted to provide feedback to Ms Zheng on her analysis and the conclusions she had drawn in the report.[18] He suggested that her firm conclusion regarding the presence of a correlation between market prices was open to challenge during some periods in the data set presented in the report. Mr Pulsford held the view that Ms Zheng was very dismissive of his suggestion and was not prepared to consider or accept that her opinion on correlation should be qualified.[19] Mr Pulsford gave evidence that in response to his feedback, Ms Zheng said to him words to the effect of, ‘if your opinion of my work is low you should just do it yourself’.[20]

Ms Zheng stated that to the best of her recollection, she recalled that Mr Pulsford had reviewed her final presentation slide. One of the slides analysed whether there was correlation between two factors. Ms Zheng said that she drew the conclusion there was no correlation between these two factors, which was not agreed by Mr Pulsford.[21] Ms Zheng states that Mr Pulsford then basically said to her, '[S]o do you understand what correlation means?'.[22] Ms Zheng continued that she could not remember exactly what he said but when asked whether Mr Pulsford might have said something like, ‘what do you understand correlation to be in the context of these spot prices’, Ms Zheng said that if that was what he said then she would not have got annoyed.[23] Ms Zheng however promptly corrected that she was not annoyed and then acknowledged she was annoyed.[24]

Ms Zheng said she felt extremely uncomfortable, because whilst less experienced than Mr Pulsford, she also was a professional who had worked in the oil and the gas industry across the globe. With 11 years’ experience before she joined the Respondent, she found the question extremely unacceptable and was specifically affronted by Mr Pulsford’s tone. However, Ms Zheng acknowledged that Mr Pulsford was trying to point out to her that he saw the correlation somewhat differently to her.[25]

In cross examination, Ms Zheng was asked whether she had said to Mr Pulsford that, ‘if his opinion was so low of your (her) work he should just do it himself’.[26] Ms Zheng said that she could not recall that she said that to Mr Pulsford in that way.[27] However, Ms Zheng appeared to vacillate between having not said, or having said, something like that to M Pulsford.[28] Ultimately, it appears that Ms Zheng denies ever having said to Mr Pulsford that he could do the work himself, noting that such a comment would be disrespectful hence why she did not think she said it.

1.2The New Caledonia incident

In May 2019, Mr Pulsford assigned Ms Zheng work on an import terminal development project. As part of this project, the Respondent was surveying LNG producing terminals in the region and ship owners to see if they would be interested in being involved. Mr Pulsford said that Ms Zheng was responsible for drafting the requests for information for the survey. In late July 2019, while Ms Zheng was preparing the draft requests, it is purported that she said to Mr Pulsford words to the effect of: (a) ‘I don’t see the point of this assignment’; (b) the scope of work isn’t relevant’; and (c) ‘I would have drafted the scope of work completely differently’.[29]

Mr Pulsford said that when he asked Ms Zheng to show how she would improve the scope or why she did not understand the point of the assignment, she dismissed his questions and did not provide a substantive answer.[30] Whilst considering Ms Zheng’s remarks to be unprofessional, Mr Pulsford said he did not raise her behaviour as a disciplinary concern with her, but opted to move her onto a new project which was better aligned with her skills and experience.[31]

Ms Zheng corrected Mr Pulsford’s account noting that the proposal for the work was written by Mr Pulsford, her, and another consultant from Singapore, and that she had assisted with a request for a survey.[32] Ms Zheng was asked whether she had said to Mr Pulsford that she did not see the point of what he had asked her to do, and she replied ‘[N]o’.[33]

1.3The Thailand LNG Import Terminal Feasibility Project

Mr Pulsford reports that Ms Zheng started to push back on certain work. The example provided was that of the ‘Thailand Project’, which was said to involve advising the Respondent’s client EGAT, on the development of an LNG import terminal in Thailand.[34] Mr Pulsford noted he asked Ms Zheng to be the project lead, but she informed him that she did not think herself sufficiently skilled to lead the job.[35] Whilst Mr Pulsford provided reassurance to Ms Zheng she was sufficiently skilled, he said that she remained reluctant to assume the role so he became the project lead and assigned Ms Zheng to be the facilities lead.[36]

Ms Zheng’s account differs to that of Mr Pulsford. Ms Zheng states that she thinks Mr Pulsford asked her whether she felt confident to be the lead in her performance review meeting.[37] In cross examination, Ms Zheng was corrected on this point as the purported request to be the project lead was made prior to the performance review:

Well, Ms Zheng the performance review meeting wasn't until January the next year. So I am going to ask you a third time. Do you recall in November of 2019, Mr Pulsford asking you to be the project lead on the Thailand LNG Import Terminal Feasibility Project?‑‑‑I don't recall he asking me to lead the project and still your quote actually to be project lead for that project. No. I don't recall it but what I do remember is given the performance review he asking me the question whether I feel comfortable to lead the project. So the project was led by Mr Pulsford.[38]

For her part, Ms Zheng states that she was never offered the role of project lead.[39] She also states that she never declined to work on the assignment and that she supported Mr Pulsford to the best of her efforts.[40]

Ms Zheng expressed that in respect of the first workshop in mid-December 2019, she had suggested to Mr Pulsford that Mr Douglas Brown would be a better person to attend the workshop as he had the best knowledge about selecting the right site for the terminal.[41] Ms Zheng clarified that she was not questioning Mr Pulsford, but was just sharing her professional view.[42]

Ms Zheng stated that after Mr Pulsford decided to leave Mr Brown as a back support person, she took on the task and did not decline the task.[43] Ms Zheng said that she started to prepare to apply for her visa and for the trip – and according to her it was very professional and normal.[44] Ms Zheng confirmed that she booked her flight, prepared the workshop, made the trip and conducted all the work required.[45]

1.4Performance reviews

The Respondent has traditionally conducted bi-annual performance reviews but transitioned to quarterly reviews in or around 2020.[46] The tools used for the performance reviews included a ‘Skills Ladder Form’ and a ‘Performance Evaluation Form’. [47] The former sets out the skills employees are required to have to effectively perform their role and the level at which the skills should be demonstrated. The latter form is used to evaluate at a high level whether the employee is meeting the requirements of the role, review the employee’s broker credits (points earned based on an employee’s performance on projects which factors in bonuses) and set objectives for the following year.[48]

Mr Pulsford met with Ms Zheng on 17 January 2020 to discuss her performance.[49] He concedes that he did not pre-schedule the meeting and did not have details of her broker credits at hand. However, he was conscious that Ms Zheng was about to embark on a period of leave and therefore wanted to discuss her performance.[50]

Mr Pulsford notes that having spoken about the Skills Ladder, the discussion turned to why Ms Zheng did not consider she was the right person for the Thailand Project.[51] Mr Pulsford purports that the discussion was to the effect:

Mr Pulsford Lingli, I really just want to understand why you feel like you were not the right person to lead the Thailand Project. You have the skills and have worked on a similar assignment in Mauritius. Why did you feel that someone else should run the project?
Ms ZhengI lied.
Mr Pulsford: You lied? Why would you do that?
Ms ZhengTo avoid the project.[52]

Mr Pulsford reports that following the abovementioned passage, Ms Zheng informed him that the discussion had taken over an hour, it was not going anywhere, and she did not see the point of continuing it.[53] Mr Pulsford said that Ms Zheng left the room.

Ms Zheng recalls that that Mr Pulsford did ask her why she felt that she was not the right person to lead the Thailand Project.[54] However, Ms Zheng denies having said that she had lied to avoid the project.[55] Furthermore, Ms Zheng said that she did not inform Mr Pulsford that the conversation was not going anywhere and did not see the point of continuing.[56] When asked whether she was suggesting that Mr Pulsford made up the version of events, Ms Zheng responded, ‘[Y]es’.[57]

As to why Mr Pulsford did not address Ms Zheng’s purported conduct at that point, Mr Pulsford explained that he was concerned that Ms Zheng may have avoided the project lead role because of a lack of confidence – and thought that it was best to leave the discussion there, and revisit it as a follow-up discussion when she returned from leave.[58]

The minutes of the Disciplinary Hearing (2 September 2020, 4.00pm taken by Shahshah Rashid)[59] (Disciplinary Meeting Minutes) that was conducted later down the track, report in relation to this interaction, that Ms Zheng confirmed that the Thailand terminal assignment was discussed, but her reluctance to enter the project was not discussed.[60] According to Ms Zheng, Mr Pulsford did not say anything to her about his perception that she was reluctant to attend the workshop (presumedly the Bangkok workshop) in any meeting held in January or February 2020.[61] The Disciplinary Meeting Minutes record the following account from Ms Zheng:

In January WP asked LZ if she was capable of leading the Thailand Terminal Project and she said yes. If given the right resources, LZ felt she was more than capable to lead the project. The discussion was in relation to the topic that LZ wants more responsibility and autonomy in the coming year and nothing to do with WP allegation that LZ was reluctant to work on the project etc.
AW clarifies that LZ is stating she never told WP that she felt that she didn’t have the sufficient skills to work on the project.
LZ states that she told WP she did not have the skill to attend the workshop for the site selection, hence why she suggested DB to go. LZ did tell WP that she didn’t have the specific expertise and WP is fully aware that’s why at the beginning of the project WP told DB that they need his support on the project. LZ said she only told WP that she is not knowledgeable in that particular part. Apart from that LZ states she did not say anything.[62]

Ms Zheng was on a period of annual leave between 20 January 2020 and 3 February 2020.[63]

Mr Pulsford scheduled a follow-up performance review discussion on 7 February 2020.[64] The contents of the performance review discussion were said to include: (a) her broker credits for 2019; (b) objectives for 2020 and an agreement that Mr Jeremy Brown, Senior Consultant, would be a good mentor to assist the development of Ms Zheng’s commercial skills and experience; and (c) the need for improvement in Ms Zheng’s interpretation of assignment scopes – with an emphasis on the need for flexibility to allow the scope of work to evolve to meet client needs.[65]

Ms Zheng acknowledged that Mr Pulsford had raised with her that she needed to be more flexible in relation to the scope of work and open to different perspectives.[66] Ms Zheng denies having been dismissive towards Mr Pulsford.[67]

Mr Pulsford said that he entered an overall performance evaluation of ‘Meets Expectations’, for Ms Zheng , noting that the rating was the minimum level he would expect from team members.[68]

According to Ms Zheng, she only found out that Mr Pulsford had a serious issue with her performance when he offered to end her employment contract. Ms Zheng reported that he had never said anything during the performance review meetings which were held in January or during the short discussion in February 2020.[69]

1.5The Thailand Project – further issues

According to Mr Pulsford, he continued to confront performance and conduct issues with Ms Zheng during February and April 2020.[70] Mr Pulsford provided further examples of the issues on the ‘EGAT Thailand Project’.

Mr Pulsford explained that a concept selection workshop for the Thailand Project was scheduled in Bangkok for mid-March 2020. By late February, he began planning travel for Ms Zheng and himself, while in parallel flagging to the client that if the COVID-19 virus continued to spread, he would need to cancel travel and participate by teleconference. Mr Pulsford said that in or around February 2020, he had a conversation with Ms Zheng in which Ms Zheng informed him that he could do the workshop on his own and that there was no need for her to attend.[71] Ms Zheng suggested that ‘Ming Yung’ should go instead and when Mr Pulsford informed her that as facilities lead it was important for her to attend, she replied, ‘[Y]ou are being very fussy’.[72] Mr Pulsford stated that Ms Zheng would not discuss her underlying reasons for resisting travel and then abruptly terminated the discussion by just leaving the room.[73]

It was Ms Zheng’s account that there was a discussion in February 2020 for a workshop in mid-March.[74] Ms Zheng said she had just come back from leave in mid/late February. Ms Zheng said that after their call with client, she shared with Mr Pulsford that COVID was a hot topic in China and asked Mr Pulsford if they were required to attend the second workshop in Thailand and instead could it be changed to a virtual meeting.[75] Ms Zheng said that Mr Pulsford got mad.[76] Concerning the assertion from Mr Pulsford that she did not raise COVID as an issue regarding attendance at the March workshop, Ms Zheng says that she did.[77]

Ms Zheng said she queried with Mr Pulsford whether a face-to-face meeting was required and whether it was required to send two people instead of one.[78] Ms Zheng states she was not refusing to attend, but was just sharing her opinions and concerns about COVID and that there was no reason for her to refuse it.[79] In the Disciplinary Meeting Minutes record, Ms Zheng reported that Mr Pulsford became angry, asserted that she did not want to travel to Thailand for the workshop and as she was about to leave the room he raised his voice in anger and shouted, ‘[Y]ou are extremely weird’,[80] which Mr Pulsford denied.

In cross examination, Ms Zheng was asked about the workshop and her response to it, the following passages were recorded:

Well, let's go back before it turned into a virtual one. When you had the discussion with Mr Pulsford about this in February, you said to him, 'You can do the workshop on your own. There's no need for me to attend. The main discussion will be on economics, so if anyone, Min Yung should go instead.' Do you recall saying that to him?‑‑‑I recall to say something to the effect of that, however that was only actually one section of the entire conversation. So the entire conversation was actually - so we were having discussions, basically, so in case actually is a workshop, whether actually we can't convince the client to change the workshop into a virtual one, and if indeed actually the client refuse to do that, actually some of us has to go, I did say to Mr Pulsford - say, 'Okay, you please go, because you are the project manager, actually. I support you from' - 'from', I mean, 'virtually.' I did say something to the effect of that, but then, I mean-
Ms Zheng, can I just stop you there? If Mr Pulsford is the manager who has responsibilities for thinking about how we present to the client and who should be in and liaise directly in the room with the client and he wants you to go, why wouldn't you just agree to go?‑‑‑If he ask me to go, actually, I would go, but the thing is, we were discussing, actually, so what would be - what could be the possible scenarios. Because I am not saying to - if he ask me to go, of course actually I would go, because it was planned for me to go. So that's why actually - so that workshop actually was planned - well planned, actually, even actually at the end of 2019, because that was clearly written as scope of the project. I mean, if not because of the COVID, actually, so both of us actually would be there. I mean ‑ ‑ ‑
Let's put aside the COVID issue. When the discussion's going on in February the meeting was still in place. Correct?‑‑‑Yes.
And do you think as a professional talking to your manager where you say words to the effect of 'There is no need for me to attend', it could convey a message to him that you're really not interested in the project, or disinterested in the project?‑‑‑I don't remember. I don't think actually I said, 'There is no need for me to be there', because what I did say is can he go, with me virtually supporting him. I didn't say there was no need for me to be there. I mean, I don't think actually I said something to that effect, but what I did say is can he go, with me virtually supporting him, and do both of us have to go in the condition of COVID.
Do you remember him using words to the effect of 'As facilities lead, it's important for you to be there', or, 'I really want you to attend.' Do you recall him saying that to you?‑‑‑I don't recall actually whether he said that, but I was indeed the facility consultant, so that's why actually I was meant to be there. I was meant to be there as initially planned.[81]

In respect of work undertaken on the EGAT terminal study, the Disciplinary Meeting Minutes of 2 September 2020 record that Mr Pulsford had alleged that Ms Zheng had said to him that Yaxin Duan could do more of the project work and that she (Ms Zheng) would do less.[82] Ms Zheng denied that this was true and provided the following explanation:

LZ explained that the final stage of the EGAT terminal study, they will refer to “Uptime Analysis” which was planned for YD to work on. LZ again refers to the evidence submitted
in Appendix 5, Statement 2 (page 30 – 31) which states that WP was planning for YD to do this part and he also introduces YD to the client as the lead for that part. WP told LZ that he would fly YD from Singapore to Perth. LZ states around March, WP changed his plan and asked LZ to do YD’s part instead, which surprised her. LZ asked WP to confirm the plan because of the changes and WP replied via email stating that he still wants LZ to work on the project. LZ states she took on the task accordingly. LZ ask to refer to Appendix 9, Attachment 2 (page 35 -37) from the above email mentioned where LZ asked when WP plans to get YD involved and his reply stated he still wanted LZ to work on the project in which LZ responded that she will take it. LZ does not understand WP allegation and where she resisted.[83]

Mr Pulsford said that in March 2020, he discussed with Ms Zheng the final phase of work for the Thailand Project and assigned Ms Zheng to assist another analyst with the berth analysis.[84] It was Mr Pulsford’s account that Ms Zheng questioned why she had to be involved noting that she wanted to work on the Hanwha project, that she did not have enough work on at the moment, and that in 2019 30% of her time went to overheads.[85] Mr Pulsford reported that he was shocked that the Ms Zheng had not identified in 2019 that she was underutilised.[86]

In respect of Ms Zheng’s mention of the Hanwha Project, Mr Pulsford acknowledged having considered Ms Zheng for the work, but because of the compressed timeline for the project, the requirement for someone with experience on a similar project, and because Ms Zheng had other projects, including the Thailand Project in execution at the same time, Mr Pulsford did not consider it feasible to have Ms Zheng on the Hanwha Project.[87] Mr Pulsford said that he provided Ms Zheng reassurance that there were several other projects coming up and she would be provided with the commercial exposure.

In April 2020, Mr Pulsford asked Ms Zheng to complete concept slides to present to the Board of EGAT in relation to the Thailand Project.[88] The presentation was in collaboration with an environmental consultancy firm, ERM, who were based in Thailand.[89] Mr Pulsford said that he asked Ms Zheng to review and comment on the overall presentation pack as he wanted to ensure that the messaging of the presentation was appropriate to deliver both ERM’s and the Respondent’s conclusions.[90] Mr Pulsford said that when he asked Ms Zheng whether she reviewed the presentation pack from ERM, after inserting the Respondent’s concept slides, she informed him that she had not reviewed ERM’s section as this was their responsibility.[91] Ms Zheng confirmed that she did recall saying something to the effect of, ‘[H]ey, isn’t it their responsibility’,[92] but that she said it as a question.[93]

Mr Pulsford provided another example of the difficulties he experienced with Ms Zheng. He explained he had asked her to prepare slides to support an analysis of berth availability prepared by a sub-contractor on the Thailand Project and informed her of the tight deadline such that the Respondent’s presentation needed to be done as soon as possible, rather than waiting for the subcontractors deck of slides.[94] Mr Pulsford said that Ms Zheng informed him that she was going to wait until after the Respondent had received the sub-contractors slides and he was not to send any more emails.[95] Ms Zheng gave evidence that she could not recall the interaction.

Mr Jeremy Brown, Senior LNG Consultant, gave evidence of his interaction with Ms Zheng in or around 20 March 2020. According to Mr Brown, he informed Ms Zheng that Mr Pulsford had said it was fine for her to be involved in the procurement job providing she had completed existing work first.[96] Mr Brown said he conveyed to Ms Zheng that Mr Pulsford had reminded her that EGAT was her primary role at present.[97] Mr Brown said that Ms Zheng responded with the statement ‘Will is a prick’.[98] Ms Zheng denies having called Mr Pulsford a prick when speaking with Mr Brown.[99]

1.6SLNG Project

Mr Pulsford elaborated on Ms Zheng’s reluctance to take on certain projects by referring to the SLNG Project.[100] Mr Pulsford said that having asked Ms Zheng to prepare the initial proposal for this project which involved a client looking to build an LNG storage tank at their terminal in Singapore, and wanting to understand more about the market for construction contractors in the region, Ms Zheng informed him that she had never done a proposal like that before, other staff had, and asked why the colleague assigned to provide her with assistance could not simply do the work.[101] Ms Zheng denied that her immediate reason was to state that she had never done a proposal like this and that other staff had done similar work.[102]

While Ms Zheng performed the work required, Mr Pulsford expressed that he was disappointed when having asked Ms Zheng to review the scope of the work in line with the client’s request, she simply sent it straight to a Mr Kerbers to respond, having not undertaken the work herself.[103]

One of the complaints levelled at Mr Pulsford which formed part of Ms Zheng’s workplace bullying grievance, was that Mr Pulsford had scolded her after she had sent an email from a client on to Mr Kerbers for further advice.[104]

In cross examination, Ms Zheng was asked about her interaction with Mr Pulsford in respect of referring work to Mr Kerbers. Ms Zheng explained why she sent the work straight to Mr Kerbers:

Now, Mr Pulsford has asked you to consider it. Do you accept that he could have sent it to Ilmars if that's what he wanted to do, but he was really seeking your input on this, wasn't he?‑‑‑He was seeking my input, which I haven't had any experience with. He could be busy, that's why he didn't text Ilmars himself. So that's why, actually, I did the work and put some of the words already into the email to Ilmars. For me actually, I took him as instructing, 'Actually you have to sort it out.' So, for me, actually, I can't get resources from other team, from other people to give me advice to sort it out. I was doing what he instructed me to do.[105]
1.7Hostilities

Mr Pulsford described that Ms Zheng became more openly hostile and combative in the way she spoke to him during the abovementioned period.[106] In a team meeting in early 2020, he asked everyone in the meeting about their utilisation. When it came to Ms Zheng, she responded, ‘you should know’. Mr Pulsford said he informed Ms Zheng that he did not, hence why he was asking her.[107]

Mr Brown corroborated Mr Pulsford’s account, noting that on repeated occasions in weekly team meetings from around April 2020 to August 2020, Ms Zheng refused Ms Pulsford’s request that she provide an update on her task list as all other team members did at the meeting.[108]

1.7.1Instant chat with Ms Kim

Ms Zheng tendered into evidence a ‘MS Teams’ chat between her and a colleague, Ms Kim, that occurred on 24 March 2020. The chat centred on Mr Pulsford requiring Ms Zheng for EGAT work and Ms Zheng disagreeing that she was required for that work as it had been completed. Upset that she appeared to have not been considered for other work due to the supposed EGAT work, Ms Zheng wrote: ‘i am mad with this, i am going to talk to will. should i? or talk to steve on this?’[109]

Ms Kim appeared to have provided counsel to Ms Zheng regarding the approach to take with Mr Pulsford:

Kim, Ga Young
well. i think aggressive talking is not good at this time …plz…i think you may want to talk that you have some room and you really want to learn commercial issues which will also help our team in the future considering technical studies are no consistent
i talked to him so many times already
sorry to say be he is a complete asshole
let me calm down and thing about the strategy[110]
1.7.2Open opposition

In cross examination, Ms Zheng was asked whether she thought Mr Pulsford so stupid that he was not catching on to Ms Zheng’s negative attitude toward him.[111] Ms Zheng replied:

…I argue with Mr Pulsford when I have a different opinion, that's true. I don't deny that. That doesn't mean, actually, so - I argued with him unprofessionally, because when I see things can be done better I try to convince him. So I try to tell him actually what I really thought. So whether actually he took it as hostile I don't know, but at least actually - so he never actually told me, actually, what was his real feeling towards me. For instance, I found, actually - so he was so pissed off by the January 17 performance review meeting, but he still gave me a good - I wouldn't say actually a very good, but at least from A, B, C, F, I got a B.

Ms Zheng was also taken to paragraph [15] of Mr Brown’s witness statement in cross examination, particularly his remark that ‘…by early 2020 she (Ms Zheng) appeared to be in open opposition to Mr Pulsford’. Ms Zheng responded that Mr Brown’s statement was very shocking to her, and she questioned his integrity given that he was meant to be her mentor but had not shared his opinion.[112]

In respect to Mr Brown’s remark, Ms Zheng further clarified:

The thing is, I think there is one thing, actually, I want to make clear here. So it was Mr Brown said, actually, so I was in open opposition, right. Whether he took it as arguing with the manager is open opposition, I think the question - because for me, what I did acknowledge is, yes, I did argue with him. I have no objection to that statement at all. Yes, I did argue, and that's why, actually, it was aware - or noticed by some of other (indistinct) as well, but I wouldn't say, actually, so that is the open opposition, because opposition is a very strong word. Because I do take it as opposition, and he's the only one saying actually I was in strong opposition. No, I don't agree.[113]

1.8Performance review meeting on 30 April 2020

On 30 April 2020, Mr Pulsford attended a pre-scheduled performance and work planning meeting with Ms Zheng. This was the first quarterly performance review for 2020.

Ms Pulsford stated that at the commencement of the meeting, he said to Ms Zheng words to the effect that the purpose of the meeting was to discuss Ms Zheng’s performance so far for the year with a view to avoiding reviews only occurring at the end of the year.

Mr Pulsford said that throughout the meeting, he talked through a number of examples where Ms Zheng had pushed back on his instructions or demonstrated a reluctance to be involved on a project, including leading the Thailand Project and attending the related workshops in Bangkok, and the preparation of a proposal for the SLNG Project.[114]

In relation to the Thailand Project, Mr Pulsford said that he described to Ms Zheng his impression of her regarding not being interested in the EGAT project work. Ms Zheng was said to have informed him that his impression was wrong and there was no need to go into details as they had already had the discussion many times.[115] Furthermore, Ms Zheng said that she explained her reticence was COVID-19 related, at which point Mr Pulsford said he corrected Ms Zheng as she had told him he could do all the work and had not raised concerns about the virus.[116]

Mr Pulsford said that that he also raised with Ms Zheng the Singapore LNG Proposal, noting that she was not interested in it.[117] Ms Zheng purportedly informed Mr Pulsford that it was clear to her that the client wanted something that the Respondent could not deliver.[118] When Mr Pulsford clarified that he had simply asked Ms Zheng to adjust one page in the document and Ms Zheng gave the whole thing to a colleague, Ms Zheng was said to have replied that she and Mr Pulsford had different ways of doing things, and she would hold to her way of doing things.[119]

Mr Pulsford explained that in the meeting he summarised his concerns with Ms Zheng’s performance and attitude, with the objective of understanding the underlying causes of her resistance to his allocations of work.[120] The discussion between Ms Zheng and Mr Pulsford was said to have included the following response from Ms Zheng:

Don’t put people into one basket and restrict their development. You’re not the only one with experience in consulting and you don’t really understand how consulting works. Something went wrong with your management. Let’s leave it at that.[121]

Mr Pulsford said that he summarised for Ms Zheng the role that he needed her to perform, with his objective being to obtain a clear agreement with her for the future.[122] Mr Pulsford said it disturbed him that Ms Zheng either did not have an appreciation of her contractual responsibilities and the role that she was hired to perform or was attempting to reconfigure a role where she could choose the roles she did and did not work on.[123] Mr Pulsford recalled the following discussion:
Mr Pulsford: I expect you to deal with the technical and asset
development work in this region. Yes, we will give you
some commercial work as well, we did that last year
and there will be more this year, but unless you accept
that your priority is to do the technical work then we
have a problem because that is what you are hired to
do.
Ms Zheng: You will never get my enthusiasm on this. I hear what
you are telling me so let’s move on.
Mr Pulsford: We have these discussions and I explain my
expectations of you and you say ‘okay yes’, but I never
get the impression that you are committed to it. I get the
feeling that you are just trying to end the conversation.
Ms Zheng: We have discussed this so many times, I am really tired
of it Will. So, I will keep my answer very short. I am
employed by Poten, there is a contract between me and
Poten, so I will do what Poten asks me to do. That is
the end of it.
Mr Pulsford: You are employed by this business unit which I am
running.
Ms Zheng: And if that is the way you are running it that is fine. You
are running it now but it does not mean that you will
always be running it.[124]

Following the abovementioned meeting, at 1:03pm on that same day, Mr Pulsford received an email from Ms Zheng in which she summarised her work on the Thailand Project and concluded her email with, ‘Thanks so much for the work planning initiative as well’.[125] Mr Pulsford cites being amazed that after having a tense discussion with Ms Zheng in which she made scathing comments about his capabilities and management of team resources that she made the abovementioned remark.[126]

1.9A without prejudice discussion

Having discussed his concerns about Ms Zheng with Mr Thompson over the period of 1 May to 5 May 2020 and having liaised with the Chief Executive Officer of the Respondent in New York and members of the BGC HR department, including a Mr Glenn Lynch, HR Advisor, it was decided that as an initial step, it would be appropriate for Mr Pulsford to have a frank discussion with Ms Zheng.[127] According to Mr Pulsford, such step recognised Ms Zheng’s dissatisfaction with the technical work she was employed to perform and her dissatisfaction with Mr Pulsford.[128]

At approximately 10:00am on 25 May 2020, Mr Pulsford met with Ms Zheng and Mr Lynch over Microsoft Teams. Mr Pulsford opened the meeting by summarising the various performance and conduct concerns he held, and informed Ms Zheng that the business was considering formal disciplinary action.[129]

Mr Lynch was said to have asked if Ms Zheng would be willing to engage in a without prejudice discussion and she purportedly agreed. Mr Lynch provided Ms Zheng with details of the offer.

At 11:27 am on 25 May 2020, Mr Pulsford was copied to an email from Mr Lynch to Ms Zheng setting out the details of the ‘without prejudice’ offer made to Ms Zheng in the meeting earlier that day. At 3:08 pm, Ms Zheng responded to this email seeking an extension of the time to consider the offer, which was granted until 28 May 2020.[130]

Ms Zheng stated that she was informed on 24 May 2020 that there was to be a meeting on 25 May 2020.[131] The subject line of the Microsoft Teams invite read ‘Staff discussion/forward plan’.[132] Ms Zheng said that just prior to the meeting the invite was extended to Mr Glen Lynch the HR Officer at BGC Partners.[133] Ms Zheng said she was informed:

a) that Mr Pulsford had significant issues working with her and that they needed to find a way forward hence why HR was there; and
b) the Respondent had strong evidence of underperformance and offered to terminate her employment by mutual agreement, otherwise, a formal action would be taken against her.[134]

Ms Zheng detailed that whilst she was initially given two days to consider the offer, on 26 May 2020 she requested an extension of seven days.[135] This extension was declined, and an additional day was provided.[136]

Ms Zheng noted that she was unaware that the Respondent business had a HR department and therefore on 28 May 2020 she rejected the ‘Respondent’s ultimatum email’ and submitted her written statement.[137] Ms Zheng said that she alleged that Mr Lynch had pressured her into resigning and that Mr Pulsford had bullied her.[138] Ms Zheng clarified that she made the complaints about Mr Pulsford in the same written statement as she had finally found someone in the Respondent company to whom she could complain about Mr Pulsford’s bullying behaviours.[139]

At 1:46 pm on 28 May 2020, Ms Machon, Head of Human Resources – Asia Pacific for the Group forwarded to Mr Pulsford an email from Ms Zheng attaching a written statement dated 28 May 2020 (First Statement). In her email to Mr Pulsford, Ms Machon confirmed she was reviewing the First Statement and considering next steps.

1.10The First Statement

Ms Machon gave evidence that Mr Lynch forwarded to her the First Statement together with a copy of a medical certificate certifying that Ms Zheng was unfit for work up to and including 29 May 2020.[140]

The First Statement encapsulates Ms Zheng’s perspective about the without prejudice meeting on 25 May 2020, allegations of pressure upon her to resign, identification of her performance meeting expectations, the false nature of Mr Pulsford’s allegations against her, and Mr Pulsford’s alleged misconduct toward Ms Zheng and other team members. Furthermore, the First Statement sets out submissions regarding the Respondent’s deficiencies in procedural fairness and there being no valid reason for her dismissal. Ms Zheng refers to multiple decisions of this Commission and the Federal Court in her First Statement.

Insofar as Mr Pulsford had engaged in misconduct, Ms Zheng detailed the following:

a)   the use of harsh language by Mr Pulsford – in March 2019, Mr Pulsford sent and email in which he referred to Ms Zheng and others as ‘offenders’.
b)   Mr Pulsford spoke to her in a manner that implied that she was ignorant – for example, Mr Pulsford had asked whether she understood what correlation means;
c)   Mr Pulsford had raised his voice towards Ms Zheng in uncontrolled anger – for example having held a discussion about work slides when she went to walk away, Mr Pulsford was said to have shouted in anger and rage, ‘We haven’t finished our discussion. Why are you walking away? What you are doing is extremely rude and not appreciated’.

The email referred to in paragraph [61(a)] of the First Statement (and above at paragraph [85(a)]) was sent by Mr Pulsford on 14 March 2019 to ‘LNG Consulting Asia-Pacific’ and was titled ‘Egnyte House keeping’. It detailed the necessity to file documents in a certain way noting that the file management would only work well if all staff followed simple rules. The email concluded:

So please do not create directories labelled “PTT”, “TG International Diversification” Or “TSC” (Chris) or “Brunie LNG” (Puneet), but use the full naming convention
Offenders please correct the error of your ways swiftly.[141]

1.11Ms Zheng’s return to work after taking personal leave

Ms Machon stated that she received an email from Ms Zheng on 1 June 2020, in which Ms Zheng sought clarification as to whom she should report to on returning to work from sick leave.[142] Ms Machon noted that Ms Zheng had outlined in her First Statement that she did not want ‘any dealings with Will’.[143]

On 2 June 2020, Ms Machon wrote to Ms Zheng seeking to clarify misconceptions Ms Zheng appeared to have regarding (among other things), the without prejudice discussion as an alternative to disciplinary action and Mr Lynch’s communications with her.[144] Ms Machon said she also noted that the Respondent’s without prejudice proposal had been extended to be open for her acceptance until 5 June 2020, and that a disciplinary process would be undertaken if a resolution was not reached.[145] Ms Machon sent to Ms Zheng a copy of the Group’s Disciplinary Procedure.[146]

In the letter of 2 June 2020 to Ms Zheng, Ms Machon informed Ms Zheng that a mediation was recommended to resolve Ms Zheng’s complaints against Mr Pulsford and that if no resolution was reached, Ms Zheng could raise a formal grievance.[147]

On 4 June 2020, Ms Zheng emailed Ms Machon setting out that:

a)   she declined the without prejudice offer;
b)   she requested a mediation be scheduled regarding her allegations against Mr Pulsford in the First Statement;
c)   she sought the material that the Respondent would review should it be considering issuing her an oral warning as a first step to the disciplinary process against her; and
d)   she sought information on whether Mr Pulsford would be receiving an oral warning from the Respondent due to her grievances against him.[148]
1.12A mediation

Following receipt of the First Statement, Ms Machon decided that a mediation would take place between Ms Zheng and Mr Pulsford on 15 June 2020.[149]

At approximately 3:00 pm on 15 June 2020, the mediation was held between the two, with Ms Machon mediating via Microsoft Teams. Also present was Dr Goltz, Ms Zheng’s support person.

According to Mr Pulsford, Ms Machon opened the mediation by explaining the purpose of it and then started talking through the concerns raised by Ms Zheng in the First Statement.

Ms Machon gave the following evidence about the lead up to the mediation and the mediation itself.

Ms Machon stated that on 8 June 2020, she spoke to Ms Zheng through Microsoft Teams. Dr Goltz also attended the call as Ms Zheng’s support person. In addition to clarifying queries that Ms Zheng had regarding Ms Machon’s letter of 2 June 2020, Ms Machon said she also discussed the First Statement and that the recommended next step would be to hold a mediation.[150] Ms Machon said that during the call, she informed the Ms Zheng of the purpose and process of the proposed mediation, and that should she feel that any issues remained, or that she needed to raise a new allegation, a formal grievance against Mr Pulsford could be made.[151] Ms Zheng agreed to attend a mediation, provided Dr Goltz could attend as her support person.[152]

Ms Machon stated that on 14 June 2020, Ms Zheng asked Ms Machon whether she could raise at the mediation her belief that Mr Pulsford was not acting in the best interest of the Respondent or its clients.[153] Ms Machon said that she informed Ms Zheng that such an allegation is ultimately assessed by Mr Pulsford’s manager rather than Ms Zheng but invited her to raise the issue if she had clear evidence.[154]

Whilst Ms Machon detailed to the participants in the mediation the structure of the session, according to Ms Machon, Ms Zheng insisted on sharing a PowerPoint presentation that she had prepared concerning her grievances against Mr Pulsford.[155] Ms Machon said that she reluctantly allowed Ms Zheng to share the presentation on the proviso that it focused on the allegations raised in the First Statement.[156] Notwithstanding, Ms Zheng’s presentation was said to have included new, and more serious, allegations relating to alleged discriminatory conduct by Mr Pulsford.[157]

Ms Machon explained that whilst she asked Ms Zheng to cease her presentation and that the mediation would only continue if Ms Zheng was willing to focus on the allegations on foot (that Mr Pulsford was aware of). Ms Zheng apparently continued to disregard Ms Machon’s instructions and by Ms Machon’s account, appeared intent on wanting to establish that Mr Pulsford had mistreated her.[158]

Mr Pulsford confirmed that not long into the mediation, Ms Zheng raised a new allegation that he had been discriminating against her because of her race and gender.[159] This, said Mr Pulsford, was the first time that Mr Pulsford had heard Ms Zheng make such an allegation.

The mediation ended, with Ms Machon acknowledging that alleged discrimination was a very serious matter which should be dealt with formally, and not by way of mediation.[160]

1.13An investigation into Ms Zheng’s grievance against Mr Pulsford

Mr Pulsford said that on 22 June 2020 he had a discussion with Ms Machon. Ms Machon informed him that Ms Zheng had lodged a formal grievance against him and some of the allegations were quite serious, and that she would be investigating the matter and any disciplinary process concerning Ms Zheng would be placed on hold until the investigation was closed out.[161]

Mr Pulsford confirmed that he was interviewed by Ms Machon on 30 June 2020 via Microsoft Teams with Mr Lynch present.

1.14The disciplinary process

Ms Machon explained that due to the failure of the without prejudice discussions and the mediation process, it was necessary to formally progress the Respondent’s concerns with Ms Zheng’s performance and conduct.[162]

On 16 June 2020, Ms Machon invited Ms Zheng to attend a disciplinary hearing on 18 June 2020.[163] Ms Machon said that she informed Ms Zheng that should she wish to raise a further grievance of her own, it would be fully investigated either separately or as part of the disciplinary process.[164]

To assist Ms Zheng to understand the Respondent’s concerns about her performance and conduct, and to prepare for the disciplinary hearing, the invitation to Ms Zheng included a statement prepared by Mr Pulsford about his specific concerns regarding Ms Zheng’s behaviours (Underperformance Allegations).[165] Those concerns mirror those set out at paragraphs [20] to [74] of this decision. Also included was Mr Pulsford’s appraisal of Ms Zheng’s work on the Thailand terminal study:

During May, Lingli continued to work on closing out the Thailand terminal study. The client was very demanding, and our objective was to close these comments out efficiently. Lingli showed frustration and objected to addressing the large number of client comments which she felt were outside our scope of work. I worked with the local consulting firm through whom we were contracted to find a balance between the at times unreasonable client comments and our role in delivering a report that addressed the client objectives, but Lingli’s frustration with my approach is clearly illustrated in her email of 20th May 1:03pm (attached), copied to other members of the team, which was unnecessarily dramatic and exaggerated the task ahead. As on previous occasions, when I insist that the work is completed, she did so within the required timeframe. This incident highlighted that Lingli had not taken the feedback on board, and was continuing to be disruptive and contend with my reasonable instructions.[166]

Mr Pulsford also referred to an email exchange between him and Ms Zheng on 20 May 2020 in the Underperformance Allegations, which read:

From: Zheng, Lingli <[email protected]>
Sent: Wednesday, 20 May 2020 1:03 PM
To: Pulsford, Will <[email protected]>; Wong, Ming Yun <[email protected]>; Duan, Yaxin
<[email protected]>
Subject: RE: EGAT FSRU FS_Comments
Will,
Why would we need to add the slides titles for each of this?? it is tremendous amount of work!!! Why section title would not suffice? I can add the section in the report for reference by tomorrow but afraid not the individual slide titles
Regarding comments for Sheet named “MOM‐24‐4‐20” , which were discussed and consolidated intensively before issuing our reports to them and they have commented on the report(s), am I right? With the last bunch of comments received on contract, Shall we expect to receive more rounds of commenting from EGAT ?
Regarding the Sheet named “29‐4‐20, Are we willing to pay SEA for the additional comments since the acceptance of report was done already??? I will check with SEA and see whether they are kind enough to comment without extra $ now
Regards[167]

From: Pulsford, Will <[email protected]>
Sent: Wednesday, May 20, 2020 1:36 PM
To: Zheng, Lingli <[email protected]>; Wong, Ming Yun <[email protected]>; Duan, Yaxin <[email protected]>
Subject: RE: EGAT FSRU FS_Comments
I do not expect any further comments from EGAT
There are about 25 comments on “MOM‐24‐4‐20” related to the facilities many of which are complete in themselves and will not have a slide reference.
So you need to identify less than 20 slides between now and tomorrow lunchtime. Please do it. If you need more time, let me know.
If there is a clash with other deliverables you have then please call to discuss.
Regards
Will Pulsford
Manager Consulting – Asia Pacific[168]

From: Zheng, Lingli
Sent: Wednesday, 20 May 2020 1:55 PM
To: Pulsford, Will; Wong, Ming Yun; Duan, Yaxin
Subject: RE: EGAT FSRU FS_Comments
Sorry afraid it’s not as easy as you think
Lingli Zheng[169]

Regarding the abovementioned emails, Ms Zheng explained in her Second Statement (which had been submitted to Ms Machon on 21 June 2020, and of which greater context is provided at paragraph [111]):

On May 20, 2020, Will instructed the project team (Ming Yun, Yaxin and myself) to address the comments made by the client. Due to the demanding nature of the client and amid the lack of adequate client management by Will, there had been several rounds of comments from this client already. The entire project team, including Will, became frustrated, which is demonstrated in Will’s email stating, “ALMOST DONE”…

In order to resolve this issue, I proposed a pragmatic approach to address the clients’ comments in order to ease the team’s frustration and efforts as well as better prepare for more rounds of comments. Half an hour later, Will replied to my email and challenged my proposed pragmatic approach. Due to lack of face-to-face discussion while working from home and out of stress, I replied to his email stating that, “the work I have to do is not as easy as what you think”. This was an honest description of the situation given the timeframe and requirements.
Following my email and in order to avoid any mis-interpretation of my email, I called will and explained my position. After the call, I also wrote to Will and email to conclude our phone discussion. Will replied to my email with confirmation of his acceptance of my pragmatic approach.[170]

In cross examination, Ms Zheng was asked why she had used two question marks in the email sent at 1:03pm on 20 May 2020, to Mr Pulsford. Ms Zheng responded that it was a ‘typo’,[171] to later clarify:

Can we go back then to the very first sentence of your email. Do you stand by your evidence that the two question-marks at the end of the first sentence, were just a typo, or do you agree now they really were you conveying your frustration about what was being asked of you?‑‑‑I think both probably because if it's really frustrating I should use three, right.[172]

Ms Machon stated that as part of the disciplinary process, the Global Head of the Respondent, who one may recall was a Mr Thompson, was to be the decision maker and chair of the disciplinary hearing, due to his seniority and ability to understand the contents of the discussion as they relate to the LNG industry.[173]

On 18 June 2020, Ms Zheng objected to Mr Thompson’s appointment as the chair of the disciplinary hearing, noting that he was previously involved in discussions with Mr Pulsford regarding Ms Zheng’s performance and conduct.[174] In response, Ms Machon explained to Ms Zheng that the hearing would be an opportunity for Ms Zheng to present her side of events and that a hearing manager, such as Mr Thompson, who fully understands the department and subject matter of the discussion, would be the most appropriate.[175] Ms Zheng continued to object to Mr Thompson’s involvement as follows:[176]

Dear Vicky,
According to Will's statement, he flagged my conduct to Steve in three occasions, in a period of six months:
1. November 2019 - "At this point I raised these concerns with Steve Thompson, and we agreed to monitor how Lingli’s transition from her previous career to consulting was progressing".
2. February 2020 - "I flagged my concern at Lingli’s behaviour to Steve Thompson and we agreed I should document further instances".
3. April 2020 - "At this point, as a number of informal discussions had taken place with Lingli and there had been no improvement, I raised to Steve Thompson the possibility of a formal process with Lingli".
At no point during this time I was advised on these concerns or communication. Not only that my alleged misconduct was communicated to Steve, it is clear from Will's statement that the two agreed on the course of action: "we agreed to monitor", "we agreed to I should document further instances" and "I raised to Steve Thompson the possibility of a formal process".
I find it strange that all this communication was done orally. In addition, since it was 'agreed' that Will should "document further instances", it is not clear why this 'documentation' is not disclosed.
Therefore, I strongly argue that Steve's opinion about me may be biased since he was overseeing this process with Will, without ever hearing my position. I understand that it is my duty to attend the hearing but strongly argue that the integrity of the process is jeopardised and that the rules of procedural fairness and natural justice may be compromised.
There is no doubt that given his position Steve is the most familiar with the company's projects and procedures, however, while he may advise the hearing chairman on the technical aspects, he should not be the chairman and/or the decision maker in this case. The chairman to make a decision with respect to the allegations and counter allegations between Will and myself, should be impartial and unbiased.
With respect to your second point, you assert that, "If you elect to raise a formal grievance against Will, the allegations shall be investigated accordingly. Depending on the nature of the allegations, we may elect to investigate your grievance prior to the disciplinary hearing taking place and this is at the Company’s discretion".
Since I elect to raise a formal grievance and it will be submitted to you by the end of this week, it would be appropriate that you first read my grievance and determine whether you would want to investigate it, before we schedule my hearing.
Best Regards

1.15The Second Statement and Formal Investigation

As noted, on 21 June 2020 Ms Zheng emailed Ms Machon a second written statement responding to the Respondent’s performance and conduct concerns and setting out further grievances she claimed against Mr Pulsford (Second Statement).

In the Second Statement, Ms Zheng purported to raise concerns for her ‘co-workers’ as well as herself and sought to have the Respondent ‘re-assess [Mr Pulsford’s] suitability of managing the Poten Asia Pacific office’.[177] Ms Zheng confirmed that her Second Statement was a reply to the Underperformance Allegations made against her by Mr Pulsford and a formal grievance against Mr Pulsford and his bullying behaviour towards her.[178]

Ms Machon explained that given the nature of the allegations raised against Mr Pulsford and the number of potential witnesses identified by Ms Zheng in the Second Statement, she determined it appropriate to halt the disciplinary process, and to commence a formal investigation regarding the matters raised in the Second Statement (Formal Investigation).[179] The Formal Investigation was undertaken by Ms Machon.[180]

Ms Machon said that she communicated to Ms Zheng that the disciplinary process would come to a halt during the Formal Investigation.

Ms Machon gave evidence that on 23 June 2020, she met with Ms Zheng and Dr Goltz via Microsoft Teams.[181] Mr Lynch also attended as a note taker.[182]

After hearing from Ms Zheng, Ms Machon characterised Ms Zheng’s allegations against Mr Pulsford as follows:

a)   alleged adverse treatment due to Ms Zheng being a non-Caucasian woman (First Allegation);
b)   alleged bullying, abuse, exerting of pressure and arrogance (Second Allegation);
c)   alleged uncontrollable anger, and inappropriate, unprofessional and dishonest behaviour (Third Allegation); and
d)   alleged underperformance of Mr Pulsford, which allegedly caused a detrimental impact on the Respondent’s business (Fourth Allegation).[183]

Ms Machon expressed the following observations about Ms Zheng’s conduct towards her in the meeting of 23 June 2020:

a)   Ms Zheng’s tone toward her was aggressive including where Ms Zheng interrupted her, spoke over her and raised her voice on a number of occasions;
b)   Ms Zheng seemed unwilling to accept other people’s perspective;
c)   Ms Zheng seemed unwilling to accept that she would be required to provide examples and/or clarifications in relation to the allegations. Ultimately, Ms Machon’s impression was that Ms Zheng believed an allegation was true just because she thought it so; and
d)   Ms Zheng caused repeated disruptions by regularly pausing the meeting to presumably confer with Dr Goltz despite Ms Machon’s direction that support persons were not to participate.[184]

The Formal Investigation involved Ms Machon interviewing Ms Zheng, and reviewing the material provided by Ms Zheng.[185] It also involved Ms Machon interviewing Mr Pulsford, as well as twelve other interviewees identified as witnesses by Ms Zheng or Mr Pulsford.[186] Those interviewed included everyone who at that time worked in the APAC consulting offices in Perth where Ms Zheng worked, and also one employee in Singapore, as requested by Ms Zheng.[187] Mr Thompson was also interviewed in relation to the allegations Ms Zheng made in relation to Mr Pulsford’s performance.[188]

Ms Machon gave the following account of the interviews conducted:

a)   contrary to the First Allegation, no interviewee, including those who were non-Caucasian women, reported any discriminatory practices by Mr Pulsford and, in fact, provided positive comments regarding the diverse nature of his team;
b)   contrary to the Second Allegation, no interviewee recalled, nor was there any evidence in the materials provided by Ms Zheng by which Ms Machon could discern, undue or excessive pressure by any means on the part of Mr Pulsford;
c)   contrary to the Third Allegation, no interviewee described Mr Pulsford as having ‘uncontrollable anger’. Interviewee #6 (being Mr Christopher Rumley who provided a witness statement in these proceedings) recalled an incident where there were raised voices by both Ms Zheng and Mr Pulsford but no ‘uncontrollable anger’;
d)   further, no interviewee supported the allegation of inappropriate and unprofessional behaviour by Mr Pulsford, aside from Mr Rumley who considered Mr Pulsford once had an ‘overreaction’ toward him and another employee (not Ms Zheng), but this did not involve a raised voice; and
e)   contrary to the Fourth Allegation, the consensus of the interviewees was that Mr Pulsford had a positive impact on employees’ development, and that the business was performing well under his leadership.[189]

Ms Machon reported that on the balance of probabilities, she had concluded that the four allegations against Mr Pulsford could not be substantiated.[190] Ms Machon recommended that no disciplinary action be taken against Ms Pulsford, but she saw fit to remind him that his written communication was at times direct, which could, by some, be perceived as rudeness.[191]

Ms Machon emailed a grievance outcome letter to Ms Zheng on 14 July 2020, together with the Formal Investigation report. While it was not the Group’s usual approach to provide the report, Ms Machon provided it in good faith. Further, when Ms Zheng requested copies of the written transcripts of each interview, whilst not the practice of the Group, again Ms Machon acceded to the request as a gesture of goodwill – redactions were made to protect the identities of anonymous interviewees.[192] Ms Machon informed Ms Zheng she could appeal the findings of the Formal Investigation, if she disagreed with them.[193]

Ms Zheng acknowledged that she had received the Formal Investigation report and supporting materials.[194] Ms Zheng expressed that she found the investigation was full of flaws and the interview questions were designed in such a way that only the Respondent’s desired outcome could be concluded.[195] In Ms Zheng’s view, she thought that some objective answers were not in favour of Mr Pulsford and that had been ignored.[196]

1.16The appeal of the investigation

On 21 July 2020, Ms Zheng appealed against the findings in the Formal Investigation. Ms Zheng’s appeal was by means of a document titled ‘Statement of Lingli Zheng #3 – July 20, 2020’ (Third Statement). This document set out ten specific allegations against Mr Pulsford.

The Respondent appointed Mr Armik Ayoubdel, Managing Director, CIO Asia and Head of Electronic and Hybrid Markets APAC for the Group to hear Ms Zheng’s appeal. Mr Ayoubdel was selected due to him having had no prior dealings with Ms Zheng, the Respondent or Mr Pulsford.

On 29 July 2020 and 3 August 2020, the appeal hearing was conducted by Mr Ayoubdel. Dr Goltz attended as Ms Zheng’s support person, and Ms Machon attended the hearing.[197]

Having considered the matters involved in the appeal, Mr Ayoubdel determined that the appeal should be rejected with no further internal recourse for Ms Zheng .

On 11 August 2020, Ms Machon sent Ms Zheng a copy of the appeal outcome letter signed by Mr Ayoubdel.

1.17Grievance against Mr Ayoubdel

On 12 August 2020, Ms Zheng sent an email to Ms Machon contesting the appeal outcome, and accusing Mr Ayoubdel of being aggressive toward her during the appeal hearing and having pre-judged the matter.[198] Ms Zheng asked that the Respondent ‘nominate an impartial and qualified person to hear this appeal’.[199]

Ms Machon expressed that the allegations levelled at Mr Ayoubdel were completely contrary to the feedback Ms Zheng had provided to her when Ms Machon called Ms Zheng on 7 August 2020 regarding a welfare check. Further, such allegations were contrary to Ms Machon’s observations of Mr Ayoubdel in the meeting.[200] Ms Machon stated that she informed Ms Zheng that the Respondent would not be taking her grievance any further on this point.[201]

1.18Disciplinary Hearing

The disciplinary hearing (Disciplinary Hearing) on 2 September 2020 was led by Mr Ashley Walsh, the then Chief Operating Officer for GFI APAC. Mr Walsh explained that at the time of giving evidence he was the Chief Executive Officer (CEO) of the Group, Australia, and New Zealand. In his role as CEO,Mr Walsh said he had day to day management of the Group brand, GFI brand and Fixed Income Solution brands.[202] Mr Walsh stated that this involved managing all aspects of the operations, including but not limited to, strategic direction, staffing, P&L management, client engagement and reporting to regional and global management.[203]

Mr Walsh stated that he did not, and had not, been involved in the day-to-day management of the Respondent’s business.[204] However, Mr Walsh said that he was aware that the Respondent’s primary business was to provide technical and commercial consultancy advice to its clients in the LNG and commodity industry.[205]

Mr Walsh became involved in the disciplinary process at the request of Ms Sonia Tapu (HR Manager for BGC Partners, GFI Group, Cantor Fitzgerald and their Affiliates).[206] Ms Tapu sent to Mr Walsh a chronology of events and the following documents:

a)   Statement of Mr Will Pulsford dated 15 June 2020;
b)   Statement of Ms Zheng dated 21 June 2020;
c)   HR Investigation Report dated 14 July 2020;
d)   Statement of Ms Zheng dated 20 July 2020; and
e)   letter to Ms Zheng dated 11 August 2020 with subject ‘RE: Grievance Appeal Outcome.[207]

From his review of the material, Mr Walsh considered that a lot of the allegations directed at Ms Zheng related to her not wanting to take on certain work that fell within her remit.[208] Having informed Ms Tapu of this on or around August 2020, he explained to Ms Tapu that he would like to understand more about the nature of Ms Zheng’s role and the difference between ‘technical work’ and ‘commercial work’ – as it was not clear to him what work Ms Zheng was employed to do.[209]

On 25 August 2020, Ms Tapu forwarded to Mr Walsh an email chain between herself and Mr Pulsford in which Mr Pulsford provided some clarification as to the nature of the work Ms Zheng performed, including the difference between what was described as ‘asset development’ jobs and ‘commercial’ jobs.[210]

By letter dated 25 August 2020, Ms Zheng was invited to attend a Disciplinary Hearing scheduled for 27 August 2020 .

By email dated 26 August 2020, Ms Zheng requested that the Disciplinary Hearing be rescheduled to 4.00pm (AWST) on 2 September 2020 to allow her support person to attend.

The Respondent agreed to reschedule the Disciplinary Hearing as requested by Ms Zheng.

The attendees at the Disciplinary Hearing on 2 September 2020 were:

a)   Ms Zheng;
b)   Mr Walsh;
c)   Ms Tapu;
d)   Shahshah Rashid as note taker for the Respondent; and
e)   Dr Goltz as Ms Zheng’s support person.

Mr Walsh gave evidence that following the Disciplinary Hearing he did not believe he had sufficient information to make a determination as to the allegations.[211] Mr Walsh stated that this was because, although he had read Mr Pulsford’s statement and the various statements provided by Ms Zheng, their versions of events were vastly different, and there were in a number of instances no witnesses, or clear documentary evidence to corroborate either of their accounts.[212]

Mr Walsh elaborated that he considered it was appropriate to interview other employees within the Respondent’s Perth Office to obtain their comments on some of the broader allegations against the Ms Zheng. As he had no knowledge of who these employees were, Mr Walsh said he asked Ms Tapu to liaise with the relevant employees to arrange the meetings.[213]

On 9 September 2020, Ms Tapu and Mr Walsh met separately with a number of employees of the Respondent’s Perth Office over Microsoft Teams, namely:

a)   Jeremy Brown (Senior LNG Consultant);
b)   Ming Cai (LNG Consultant);
c)   Daryl Houghton (LNG Consultant); and
d)   Gayoung Kim (Analyst).

Mr Walsh stated that although Ms Zheng denied having resisted working or communicating with Mr Pulsford in an unreasonable manner, there were consistent themes from the feedback of the employees who he spoke to, which included:

a) Ms Zheng was resistant to certain jobs and directions; and
b) Ms Zheng was not respectful in her communication, including towards Mr Pulsford.

Regarding paragraph [142(a)] the feedback consisted of the following comments:

(a)    there was one incident where [Ms Zheng] and [Mr Pulsford] were working on a Thailand project and everyone on the floor could hear their discussion. [Mr Pulsford] asked her to do something, I am not sure what, and she responded, “you can do that” and it was very strange thing to say to your manager;
(b)    based on my experience they will argue and she disagrees with [Mr Pulsford] and doesn’t do what [Mr Pulsford] asks her to do;
(c)    there was a project that was very interesting that I thought she would be interested in assisting with and she just told me that she is “not interested” so I left it;
(d)    but yes, she is reluctant to do what her manager asks in limited circumstances; and
(e)    if she doesn’t think someone is doing something the right way then she disagrees and doesn’t do it that way but if she thinks it’s the right way then she is fine. She has a strong opinion and she will speak up.[214]

Mr Walsh received the following feedback in respect of the theme at paragraph [142(b)]:

a)   Ms Zheng is not respectful towards [Mr Pulsford];
b)   sometimes if she is angry or unhappy you will definitely know;
c)   Ms Zheng is very quick to blame people if she is waiting for something and will be vocal about pointing the person out instead of providing a generic update to say there are a few outstanding items she is waiting for;
d)   with her colleagues, it depends on who it is. With [Mr Pulsford], she has arguments with him;
e)   Ms Zheng spoke to me about [Mr Pulsford] and referred to him in a derogatory and disrespectful way – I didn’t mention it to [Mr Pulsford] and I didn’t raise it. She called him a “prick”. It was uncalled for and was out of context. It was inappropriate language to use in the office and against a colleague.[215]

Drawing upon the information from those interviewed, Mr Walsh concluded that the responses were consistent with, and supported, Mr Pulsford’s account.[216]

Mr Walsh stated that he formed the view that Ms Zheng had resisted and refused to engage with, and carry out, her contractual responsibilities. He also concluded that Ms Zheng had engaged in disruptive and negative behaviour in response to reasonable management instructions and had refused to engage with and accept feedback productively.[217]

In respect of his conclusions, Mr Walsh noted that the statements from Ms Zheng’s colleagues corroborated Mr Pulsford’s account and he observed none of the colleagues demonstrating a personal dislike of Ms Zheng – all were measured in their responses.[218] Mr Walsh said that he also considered that at the Disciplinary Hearing Ms Zheng was insistent that she had never declined work which ultimately was not supported by other witnesses.[219] Mr Walsh continued that whilst Ms Zheng was persistent in her denial of any of the alleged behaviour, ultimately he could not and did not accept her account as truthful and considered her version of events to be less credible that that presented by Mr Pulsford.[220]

Mr Walsh explained that he liaised with Ms Tapu to prepare a letter of termination and understands that on 18 September 202 that letter was issued to Ms Zheng, after he had signed off on it.[221]

The Respondent’s reasons for the dismissal were confirmed in a termination letter dated 18 September 2020, issued by the Respondent to Ms Zheng and summarised as:

In conclusion, in my view, it is evident that there is a clear pattern of underperformance through your refusal and/or resistance to engage with your contractual role and responsibilities. Your interaction with Mr. Pulsford and refusal to effectively engage with your role is disruptive, in relation to both business and outcomes for the wider team. Furthermore, there is a clear breakdown in trust, and it is apparent that you do not carry out Mr. Pulsford’ s instructions nor do you accept that technical work is your main focus, and it is apparent that you are effectively disengaging with your contractual role and responsibilities. This serious underperformance is further evidenced by your refusal to engage with Mr. Pulsford productively or to accept feedback.

On 23 September 2020, the Respondent paid Ms Zheng:

Did you say to him in this meeting, 'I think we just have a different way of doing things. If that is your view, then make it clear, but I will hold to my way of doing things'?‑‑‑No.
Are you quite sure you didn't say that to Mr Pulsford?‑‑‑I'm 90 per cent sure.[281]

Whilst Ms Zheng is ‘90 percent sure’ that she did not say to Mr Pulsford that she would hold to her way of doing things, I am unconvinced this is the case.

In giving her evidence on the subject of the performance review held on 30 April 2020, it struck me that Ms Zheng was being disingenuous. At three points Ms Zheng speaks of being frustrated,[282] goes on to say that Mr Pulsford was very unprofessional at a certain point of the meeting,[283] and then says that after the meeting she initiated an email to help him because she was ‘really looking forward to working together with him forever’. In circumstances where Ms Zheng has correctly conceded to referring to Mr Pulsford as an ‘asshole’, has spoken at length of her frustration with him, and has observed him to be unprofessional, a suggestion that she was looking forward to working with him forever is quite frankly absurd and cannot be sustained on the evidence as being genuine.

It follows, that on balance, I consider that it was more likely than not that Mr Pulsford engaged in a discussion with Ms Zheng in the meeting of 30 April 2020 to reaffirm the eminence of technical projects in her work scope and that Ms Zheng informed Mr Pulsford, who she was engaged by (Poten), that she would do what Poten asked of her and that she stated to the effect, ‘if that is the way you are running it that is fine. You are running it now, but it does not mean that you will always be running it’.[284]

Returning to Ms Zheng’s defiant remark about having a different way of doing things, Ms Zheng later concedes that she probably said, '[W]e have different way of doing it'.[285] Given the evidence, on balance I find that Ms Zheng did make the comments set out at paragraph [73] of this decision.

Based upon my above findings, I am satisfied that the Respondent had a valid reason for dismissing Ms Zheng. Ms Zheng demonstrated resistance and refusal to undertake the work assigned to her as so described, and this behaviour was in breach of a fundamental term of her employment contract. While Ms Zheng appeared to prefer to frame her approach as at times argumentative, she was in effect insubordinate and showed a lack of respect toward Mr Pulsford. The emails of 20 May 2020 provide direct evidence of Ms Zheng’s incivility towards a manager who has assigned her work .[286]

Furthermore, I have concluded that Ms Zheng engaged in disruptive and negative behaviour in respect of her interactions with Mr Pulsford and regarding her conveying to others her view of Mr Pulsford (whom was also Ms Kim’s and Mr Brown’s manager). I consider that her behaviour showed that she was unreceptive to the feedback Mr Pulsford had provided in the performance review meetings in January, February and April 2020, and whilst in the office.[287]

My findings dispose of the contention that there was no valid reason for Ms Zheng’s dismissal because she did not engage in the behaviour detailed in allegations one, three and four. I have concluded that there was a valid reason to dismiss Ms Zheng. Her behaviour was patently unacceptable.

3.2Notification of the reason and an opportunity to respond

At a general level, the case law makes it plain that when it comes providing an opportunity to respond, the process does not require any degree of formality, and that the requirement is to be applied in a common sense practical way in order to ensure that the employee is treated fairly.[288] The Full Bench in Royal Melbourne Institute of Technology v Asher,[289] observed that in Osman v Toyota Motor Corporation Australia Ltd,[290] reference was made to the comments of Wilcox CJ in Gibson v Bosmac Pty Ltd,[291] (approved in Selvachandran v Peteron Plastics Pty Ltd).[292] where Wilcox CJ had said:

Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical common sense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.

It is important to start with the without prejudice meeting held between Ms Zheng, Mr Pulsford and Mr Lynch on 25 May 2020. The question to be asked, is whether the meeting constituted evidence that the Respondent had predetermined to dismiss Ms Zheng. Such predetermination would arguably render any opportunity to respond seemingly meaningless. However, the evidence does not lean towards this finding.

By email dated 25 May 2020, Mr Lynch articulated the Respondent’s without prejudice offer to end the employment relationship on mutually agreed terms.[293] That same correspondence provided:

If you do not wish to move forward with the offer, we shall revert to the original position and the Company shall consider formal action against you in relation to your performance and conduct. One outcome of any such formal action could be the termination of your employment and if this was deemed as an appropriate outcome based on the evidence, you would not be entitled to an additional termination payment as offered today.[294]

There was no indication in the offer made that the Respondent had already decided to dismiss Ms Zheng. Instead, the offer outlined that the Respondent would be considering formal action, identifying the one outcome could be dismissal if the evidence supported it. The without prejudice offer does not suggest that Ms Zheng’s opportunity to respond to the allegations put to her was rendered meaningless.

Ms Zheng broached that the Respondent’s warning to her on 2 June 2020 that she should reconsider its without prejudice offer, was evidence of her dismissal having been predetermined, because reference was made to her being ineligible to bring an unfair dismissal claim. The communication that Ms Zheng refers to was sent by Ms Machon by letter of 2 June 2020, and in part it read:

To clarify, the Company have not terminated your employment due to performance and conduct issues. The Company have offered you a separation by way of mutual agreement on a without prejudice basis. If you elect not to accept the Company’s offer, we shall return to the original position and the Company will consider taking formal action against you in relation to your performance and conduct. If the Company elects to take formal action, the Company’s Disciplinary Procedure shall be followed ( a copy is attached for your reference). During any such process, you shall have the opportunity to state your case for the Company’s consideration and the Company will follow the procedure set out therein.
As your email containing your letter dated 28 May 2020 is entitled ‘False allegations and potential unfair Dismissal’ and you reference unfair dismissal within your letter, I thought it would be helpful to clarify that in the event that your employment is terminated by the Company, you are not eligible to bring a claim for unfair dismissal under the terms of the Fair Work Act. This is due to the fact that you annual salary is AUD 175,000 and is therefore over the high-income threshold.[295]

While reference was made to the unfair dismissal jurisdiction, this does not mean that the Respondent had pre-determined Ms Zheng’s dismissal. Ms Machon has pointed to the without prejudice discussion being an alternative to disciplinary action – and only raised the unfair dismissal point in response to that which was scribed by Ms Zheng.

Following on from Ms Zheng’s refusal of the without prejudice offer, a failed mediation, and the investigation into Ms Zheng’s grievance against Mr Pulsford, the Respondent embarked on a disciplinary process, in which Ms Zheng was provided with the statement of Mr Pulsford (Underperformance Allegations) and participated in a Disciplinary Hearing on 2 September 2020 before Mr Walsh, Ms Tapu and Shahshah Rashid, HR Operations.[296]

The minutes of the Disciplinary Meeting on 2 September 2020, recorded that Ms Zheng was provided with the four allegations,[297] and was provided the opportunity to respond concerns that Mr Pulsford had identified in the Pulsford Statement.[298]

In all of the circumstances, I am satisfied that Ms Zheng was notified of the reasons for her dismissal and provided with the opportunity to respond.

3.3Support person

I am satisfied that Ms Zheng was not denied a support person when requested, and that her support person (Dr Goltz) was present during the discussions at the Disciplinary Meeting of 2 September 2020.

3.4Warnings about unsatisfactory performance

As will be evident from the background material, the Respondent appeared to have acted on the basis that Ms Zheng’s behaviours fell within the remit of underperformance. However, I have difficulty with this contention and understandably, in its submissions, the Respondent submitted that properly understood, Ms Zheng’s dismissal related to the conduct of Ms Zheng and as such s 387(3) was not applicable.

In Annetta v Ansett Australia,[299] a Full Bench of the Australian Industrial Relations Commission considered the proper construction of s 170CG(3)(d) of the Workplace Relations Act, which is in the materially same terms as s 387(e) of the Act. In doing so the Full Bench explained the difference between performance and conduct, stating:

It is clear that s 170CG(3)(d) will not always be relevant but that in cases where it is it must be treated as a matter of significance in the decision-making process. Is s 170CG(3)(d) relevant in this case? We think not. In approaching the construction of the term “unsatisfactory performance” it may be significant that in describing a valid reason s 170CG(3)(a) distinguishes between capacity and conduct. Although neither term appears in s 170CG(3)(d) we think that performance is more likely to relate to capacity than to conduct. The preliminary question posed by par (d) itself is whether the appellant’s employment was terminated for unsatisfactory performance. While in a limited sense it was, because the misconduct was constituted by a refusal to perform work, we do not think that the conduct is unsatisfactory performance within the meaning of the paragraph. The paragraph is intended to refer to the level at which the employee renders performance including factors such as diligence, quality, care taken and so on. While there might be some overlap between the concept of unsatisfactory performance and the concept of misconduct, for example in relation to neglect of duty or poor timekeeping, misconduct of the kind which occurred in this case is in a different category…

The decision in Annetta v Ansett Australia was approved by the Full Bench in Abarra v Toyota Motor Corporation Australia Ltd,[300] where it was concluded that the observations in Annetta v Ansett Australia, were equally applicable to s 387(e) of the Act.

In light of the findings expressed at paragraphs [154] to [199] of this decision that the Ms Zheng refused to follow direction, resisted direction, was disrespectful, insubordinate, and displayed negative behaviours, I consider that such behaviours are conduct related and do not fall under the umbrella of performance.

3.5Size of the Respondent’s enterprise and dedicated human resource specialists

The Respondent forms part of a Group which is a large enterprise that has within its employ dedicated human resources specialists. It submitted that the approach it adopted with respect to the investigation into the conduct of Ms Zheng and its attendant disciplinary process, was appropriate having regard to its size and presence of human resource personnel. In this respect, I would agree with the Respondent’s contention that it carried out the dismissal process in a procedurally fair manner.

3.6Any other matters considered relevant

Ms Zheng made complaint regarding the procedural fairness of the process adopted by the Respondent. However, I note that when she raised concerns about the proposed involvement of Mr Thompson in the disciplinary process,[301] the Respondent thereafter elected to utilise Mr Wash to facilitate the Disciplinary Hearing. Furthermore, when grievances were raised regarding Mr Pulsford, the Respondent temporarily ceased the disciplinary process whilst Ms Machon undertook what can only be described as a comprehensive investigation into Ms Zheng’s grievances.

Ms Zheng took issue with the Respondent (Mr Walsh) relying upon the anonymous opinions made by team members in arriving at its decision to dismiss her. However, it appeared from Mr Walsh’s evidence that he considered it appropriate to obtain the comments of team members in respect of some of the broader allegations against Ms Zheng. The questions asked were particular to Ms Zheng’s behaviour and her working relationship with Mr Pulsford – an issue that formed part of the allegations that Ms Zheng had been provided the opportunity to respond to.

The Respondent also addressed fairly, in my view, Ms Zheng’s appeal of the disciplinary outcome. The Disciplinary Procedure set out that a ‘senior executive will hear all appeals and his/her decision is final’. There is no process stipulated as to how that might be done, and it appears that Mr Ayoubdel met with both Ms Zheng and Mr Pulsford,[302] and conducted a comprehensive review of their evidence and the other material that was before him – all of which appeared relevant to the decision made.[303] That material included those items set out at paragraph [13] of his witness statement.

Ms Zheng also took issue with the Respondent having disregarded its disciplinary policy because of the lack of warnings issued. However, the contention is unsupported on the evidence given that the Disciplinary Procedure sets out:

In most instances these measures will follow the procedures set out below but in some cases it may be necessary to advance the process.[304]

I have no doubt that the loss of a regular income and access to other entitlements that come with full-time work will inevitably have an impact on Ms Zheng. Ms Zheng has spoken to her dismissal having occurred during the ‘toughest period’ for the entire industry and that her application for a mortgage was stopped. Ms Zheng submits that the Respondent’s dismissal was harsh.

However, I have found that Ms Zheng had breached a fundamental term of her employment contract. The gravity of the conduct was such that there was no issue regarding disproportionality.

I have taken into consideration Ms Zheng’s length of service and while I have empathy for Ms Zheng’s current situation, noting she was clearly troubled by the loss of ongoing employment and income, I am of the view that these factors do not amount to her dismissal being harsh.

It is not lost on me that Ms Zheng considers she was dismissed because Mr Pulsford’s attempt to bully her via control and subjugation did not work, and thereafter he decided to ‘eliminate’ her. Further, Ms Zheng also considers that as the Respondent was going to restructure its organisation and her position was eventually going to be eliminated this was the true reason for her dismissal. Whilst Ms Zheng may hold those perceptions and consider them grounded in truth – they are removed from the evidence adduced and are not shown to be veridical.

Conclusion
Having taken into account each of the matters specified in s 387 of the Act, I am satisfied that the Respondent had a valid reason for dismissing Ms Zheng based on her conduct. Further, I am unable to conclude that Ms Zheng’s dismissal was harsh, unjust or unreasonable and am satisfied that the outcome I have determined ensures a ‘fair go all round’ has been accorded to the parties. It therefore follows Ms Zheng’s dismissal was not unfair. Accordingly, I am obliged to dismiss the application. An order[305] to that effect is issued in conjunction with this decision.

DEPUTY PRESIDENT

Appearances:

Ms L. Zheng on behalf of herself;

Mr K. Brotherson on behalf of the Respondent

Hearing details:

Monday 7 & Tuesday 8 February 2022 (Video Hearing)

Final written submissions:

8 March 2022

[1] Witness Statement Mr Will Pulsford, [3] (Pulsford Statement).

[2] Ibid.

[3] Ibid [2].

[4] Ibid [4].

[5] Ibid [8].

[6] Ibid.

[7] Ibid [14].

[8] Ibid [15].

[9] Ibid [17].

[10] Ibid [18].

[11] Ibid [19].

[12] Ibid.

[13] Ibid [21].

[14] Ibid [22].

[15] Ibid.

[16] Ibid.

[17] Ibid [23(a)].

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] Transcript PN185.

[22] Transcript PN185.

[23] Transcript PN219.

[24] Transcript PN224.

[25] Transcript PN204.

[26] Transcript PN225.

[27] Transcript PN226.

[28] Transcript PN227.

[29] Pulsford Statement (n 1) [23(b)].

[30] Ibid.

[31] Ibid.

[32] Transcript PN241 and 242.

[33] Transcript PN246.

[34] Pulsford Statement (n 1) [23(c)].

[35] Ibid.

[36] Ibid.

[37] Transcript PN268.

[38] Transcript PN269.

[39] Transcript PN280.

[40] Digital Court Book Applicant’s Documents - 8.18 Disciplinary Hearing Notes, 319.

[41] Ibid 320.

[42] Ibid 321.

[43] Ibid 320.

[44] Ibid.

[45] Digital Court Book Applicant’s Documents - 8.9 Zheng Statement #2, 149.

[46] Pulsford Statement (n 1) [25].

[47] Ibid [26].

[48] Ibid.

[49] Ibid [29].

[50] Ibid.

[51] Ibid [32].

[52] Ibid.

[53] Ibid [33].

[54] Transcript PN285.

[55] Transcript PN287.

[56] Transcript PN298.

[57] Transcript PN299.

[58] Pulsford Statement (n 1) [36].

[59] Digital Court Book Applicant’s Documents - 8.18 Disciplinary Hearing Notes, 318.

[60] Ibid 321.

[61]Ibid.

[62] Ibid 321.

[63] Pulslford Statement (n 1) [38].

[64] Ibid [40].

[65] Ibid [42].

[66] Transcript PN328.

[67] Transcript PN329.

[68] Pulsford Statement (n 1) [45].

[69] Digital Court Book Applicant’s Documents - 8.18 Disciplinary Hearing Notes CB 321.

[70] Pulsford Statement (n 1) [46].

[71] Ibid [47(a)].

[72] Ibid.

[73] Ibid.

[74] Digital Court Book Applicant’s Documents - 8.18 Disciplinary Hearing Notes, 322.

[75] Ibid.

[76] Ibid.

[77] Ibid.

[78] Ibid.

[79] Ibid.

[80] Digital Court Book Applicant’s Documents - 8.9 Zheng Statement #2, 150.

[81] Transcript PN515-519.

[82] Digital Court Book Applicant’s Documents - 8.18 Disciplinary Hearing Notes,323.

[83] Ibid 323.

[84] Pulsford Statement (n 1) [47(b)].

[85] Ibid.

[86] Ibid.

[87] Ibid.

[88] Ibid [47(c)].

[89] Ibid.

[90] Ibid.

[91] Ibid.

[92] Transcript PN543.

[93] Transcript PN543.

[94] Pulsford Statement (n 1) [47(d)].

[95] Ibid [47(d)].

[96] Witness Statement of Mr Jeremy Brown, [14] (Brown Statement)..

[97] Ibid.

[98] Ibid.

[99] Transcript PN330.

[100] Pulsford Statement (n 1) [48].

[101] Ibid [48(a)].

[102] Transcript PN554.

[103] Pulsford Statement (n 1) [48(b)].

[104] Digital Court Book Applicant’s Documents - 8.10 Grievance Outcome, 204

[105] Transcript PN585.

[106] Pulsford Statement (n 1) [50].

[107] Ibid.

[108] Brown Statement (n 96) [14].

[109] Digital Court Book Applicant’s Documents - 8.0 Zheng Statement #3, 304.

[110] Ibid 306.

[111] Transcript PN461.

[112] Transcript PN466.

[113] Transcript PN470.

[114] Pulsford Statement (n 1) [54].

[115] Ibid [55].

[116] Ibid.

[117] Ibid [56].

[118] Ibid.

[119] Ibid.

[120] Ibid [57].

[121] Ibid.

[122] Ibid [59].

[123] Ibid.

[124] Ibid [59].

[125] Ibid [66].

[126] Ibid.

[127] Ibid [75].

[128] Ibid.

[129] Ibid [79].

[130] Ibid [82].

[131] Applicant’s Statement of Evidence (Zheng Statement) [6].

[132] Ibid [6].

[133] Ibid [7].

[134] Zheng Statement [8].

[135] Zheng Statement [10].

[136] Zheng Statement [10].

[137] Zheng Statement [13].

[138] Zheng Statement [13].

[139] Zheng Statement [13].

[140] Witness Statement of Ms Machon [9] (Machon Statement).

[141] Digital Court Book Applicant’s Documents - 8.5 Zheng Statement #1, 109.

[142] Machon Statement (n 140) [11].

[143] Ibid.

[144] Ibid [12].

[145] Ibid.

[146] Ibid [16].

[147] Ibid [13].

[148] Ibid [18].

[149] Pulsford Statement (n 1) [87].

[150] Machon Statement (n 140) [20].

[151] Ibid [21].

[152] Ibid.

[153] Ibid [23].

[154] Ibid.

[155] Ibid [26].

[156] Ibid.

[157] Ibid [27].

[158] Ibid [30].

[159] Pulsford Statement (n 1) [89].

[160] Ibid [89].

[161] Ibid [93].

[162] Machon Statement (n 140) [32].

[163] Ibid [33].

[164] Ibid [34].

[165] Ibid.

[166] Digital Court Book Applicant’s Documents - 8.8 Underperformance Allegations, 138.

[167] Ibid 143.

[168] Ibid 143.

[169] Ibid 143.

[170] Ibid 151.

[171] Transcript PN754.

[172] Transcript PN756.

[173] Machon Statement (n 140) [35].

[174] Ibid [36].

[175] Ibid [37].

[176] Ibid annexure VLM-11.

[177] Ibid [39].

[178] Zheng Statement (n 131) [19].

[179] Machon Statement (n 140) [40].

[180] Ibid.

[181] Ibid [45].

[182] Ibid.

[183] Ibid [47].

[184] Ibid.

[185] Ibid [44]

[186] Ibid

[187] Ibid

[188] Ibid

[189] Ibid [52].

[190] Ibid [53].

[191] Ibid [54].

[192] Ibid [57].

[193] Ibid [56].

[194] Zheng Statement (n 131) [21].

[195] Ibid.

[196] Ibid.

[197] Machon Statement (n 140) [63].

[198] Ibid [69].

[199] Ibid.

[200] Ibid [70].

[201] Ibid [71].

[202] Witness Statement of Mr Ashley Walsh [6] (Walsh Statement).

[203] Ibid.

[204] Ibid [8].

[205] Ibid [9].

[206] Ibid [14].

[207] Ibid [17].

[208] Ibid [18].

[209] Ibid [18].

[210] Ibid [19].

[211] Ibid [27].

[212] Ibid.

[213] Ibid [28].

[214] Ibid [31].

[215] Ibid.

[216] Ibid [34].

[217] Ibid.

[218] Ibid [36].

[219] Ibid.

[220] Ibid.

[221] Ibid [42].

[222] (1995) 185 CLR 411, 465.

[223] Fair Work Act 2009 (Cth) s 387(a).

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

[225] Potter v WorkCover Corporation (2004) 133 IR 458, cited in Industrial Automation Group Pty Ltd T/A Industrial Automation (2010) 202 IR 17, [36].

[226] (1999) 169 ALR 89, 92.

[227] King v Freshmore (Vic) Pty Ltd, Print S4213, per Ross VP, Williams SDP, Hingley C 17 March 2000.

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

[229] B, C, and D vAustralia Postal Corporation t/as Australia Post[2013] FWCFB 6191, [36].

[230] Digital Court Book Applicant’s Documents - 8.1 Employment Contract, 81..

[231] Ibid.

[232] Ibid.

[233] Digital Court Book Applicant’s Documents - 8.1 Termination Letter, 100.

[234] Ibid.

[235] Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd[2013] FWCFB 7736, [21], quoting Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, [24]-[25] Tagdell JA.

[236] Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd[2014] FWCFB 657, [63].

[237] Transcript PN 291-294; PN 482-483; PN 655-656; PN 665-666.

[238] Transcript PN 291-294; PN 482-483; PN 655-656; PN 665-666.

[239] Transcript PN653 – 660.

[240] Digital Court Book Applicant’s Documents - 8.5 Zheng Statement #1, 126..

[241] Transcript PN 756.

[242] Pulsford Statement (n 1) [47(a)].

[243] Digital Court Book Applicant’s Documents - 8.18 Disciplinary Hearing Notes, 322.

[244] Ibid.

[245] Transcript PN415-416.

[246] Transcript PN461.

[247] Transcript PN470.

[248] Digital Court Book Applicant’s Documents - 8.18 Disciplinary Hearing Notes, 321.

[249] Ibid.

[250] Transcript PN 285.

[251] Pulsford Statement (n 1) [23(c)].

[252] Transcript PN291.

[253] Transcript PN515-519.

[254] Transcript PN515.

[255] Transcript PN516.

[256] Pulsford Statement (n 1) [47(b)].

[257] Transcript PN291.

[258] Transcript PN291.

[259] Pulsford Statement (n 1) [47(c)].

[260] Ibid.

[261] Transcript PN543.

[262] Pulsford Statement (n 1) [47(d)].

[263] Ibid [48].

[264] Ibid [48(b)].

[265] Digital Court Book Applicant’s Documents - 8.10 Grievance Outcome, 204.

[266] Pulsford Statement (n 1) [32].

[267] Ibid [35].

[268] Transcript PN636.

[269] Pulsford Statement (n 1) [50].

[270] Brown Statement (n 96) [14(c)].

[271] Ibid [14(d)].

[272] Transcript PN1096-1099.

[273] Transcript PN330-331.

[274] Transcript PN445.

[275] Transcript PN437 – 458.

[276] Transcript PN654.

[277] Transcript PN654.

[278] Transcript PN658, 664.

[279] Transcript PN659.

[280] Transcript PN660.

[281] Transcript PN668-669.

[282] Transcript PN660, 662, 680.

[283] Transcript PN680.

[284] Pulsford Statement ( n 1) [59].

[285] Transcript PN671.

[286] Digital Court Book Applicant’s Documents - 8.5 Zheng Statement #1, 126.

[287] Witness Statement of Mr Chris Rumley [16(d)].

[288] Royal Melbourne Institute of Technology v Asher[2010] FWAFB 1200, [26].

[289] Ibid.

[290] PR948009.

[291] (1995) 60 IR 1, 7.

[292] Selvachandran (n 224).

[293] Digital Court Book Applicant’s Documents - 8.5 Zheng Statement #1, 119.

[294] Ibid.

[295] Digital Court Book Applicant’s Documents - 8.6 Respondent Letter – Performance/Conduct Issues and Without Prejudice Discussions, 131.

[296] Walsh Statement (n 202) [33]-[34].

[297] Ibid annexure AW-4..

[298] Ibid [23], annexure AW-4.

[299] (2000) 98 IR 233, 237.

[300] [2018] FWCFB 7566, [92]-[93].

[301] Machon Statement (n 140) annexure VLM-10.

[302] Witness Statement of Mr Armik Ayoubdel [14]-[22], [23]–[24].

[303]Ibid.

[304] Digital Court Book Applicant’s Documents - 8.7 Disciplinary Procedure, 133.

[305] PR740642.

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