Miss Erika Duncan v Independent Broad-Based Anti-Corruption Commission - [2025] FWC 1731

[2025] FWC 1731

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal (consent arbitration)

Miss Erika Duncan
v

Independent Broad-Based Anti-Corruption Commission

(C2025/1909)

COMMISSIONER REDFORD

MELBOURNE, 13 AUGUST 2025

Application to deal with contraventions involving dismissal – consent arbitration – application dismissed

Miss Erica Duncan’s employment with the Independent Broad-Based Anti-Corruption Commission (IBAC) was terminated on 14 January 2025. On 29 January 2025, Miss Duncan filed an application in the Fair Work Commission alleging that the termination was in contravention of Part 3-1 of the Fair Work Act 2009 (the Act). The Commission dealt with the dispute by conducting conciliation, but it was not resolved. The parties agreed, pursuant to s 369(1)(b) of the Act that the Commission determine the dispute by consent arbitration.
The matter was arbitrated by way of hearing, conducted in person in Melbourne on Tuesday 3 and Wednesday 4 June 2025. Miss Duncan represented herself in the proceeding assisted by a support person. I granted permission to IBAC to be represented by a lawyer pursuant to s 596 of the Act, on the basis I considered it would assist in the more efficient conduct of a matter which involved some degree of complexity. Ms Catherine Pase of Counsel represented IBAC at the hearing.
In the lead up to the hearing it was necessary to deal with several applications for orders for the production of documents and both parties filed evidentiary material and outlines of argument. At the hearing, Miss Duncan gave evidence and was subjected to cross examination. Miss Duncan also called as a witness Mr Anthony De Luca who is an IT Senior Systems and Security Administrator at IBAC. The following persons gave evidence for IBAC, and each was subjected to cross examination:

a.Ms Delwen Granville, Director – People, Culture & Capability[1].
b.Ms Nicole Baker, Human Resources Services Manager
c.Ms Sarah Goodhart, Manager – Service Delivery Information and Digital Services
d.Mr Michael Trott, Team Leader - Service Delivery Information and Digital Services
e.Mr Orhan Pek, Health, Safety and Wellbeing Manager
f.Ms Jane Whiter, Director – Strategy and Risk
g.Ms Alyson Byrne, CEO
h.Mr Nicolas Fausett, Director – Information & Digital Services

In this proceeding, Miss Duncan was self-represented and, as is described further below is neurodivergent. In exercising its functions or powers, the Commission is obliged to take into account the objects of the Act[2], which include enabling fairness and representation at work and the prevention of discrimination by protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms[3]. It is also required to take into account the need to respect and value the diversity of the work force, by helping to prevent and eliminate discrimination on various grounds[4]. When dealing with a self-represented litigant, the Commission will provide such advice and assistance as is appropriate to ensure a fair hearing, but not so as to confer a positive advantage on the person[5]. In this matter, this included, among other things, a level of intervention greater than might otherwise have been the case, particularly to assist Miss Duncan to conduct cross-examination in an appropriate manner, and to distinguish between submissions and evidence.

Background

Based on the evidence before the Commission, the following summarises the events relevant to the eventual termination of Miss Duncan’s employment according to my findings in relation to that evidence.
Miss Duncan has the neurological condition known as autism spectrum disorder (ASD). Miss Duncan sought to tender before the Commission three documents from her psychologist who was not called to give evidence in this proceeding. The first of these documents was not accepted into evidence because it was a generalised note about why autistic people are more likely to lodge workplace complaints, not referring specifically to either Miss Duncan or IBAC and had little probative value in circumstances where the author was not available to be examined on the opinion expressed in the note. I will return to the other two documents tendered later in this decision. At this stage it is appropriate to note one of the documents refers to a report made in 2022 describing Miss Duncan’s ASD diagnosis as having a severity level described as “requiring very substantial support”[6]. The other document states the following[7]:
“Theory of Mind (ToM) refers to the ability to attribute mental states – beliefs, intents, desires, emotions – to oneself and others, and to understand that others have beliefs, desires, and intentions different from one’s own. Many individuals with ASD experience difficulties with ToM, which can lead to challenges in interpreting others’ social cues, intentions, and emotions. This deficit is strongly liked to socialisation problems, such as misunderstanding sarcasm, failing to predict others’ reactions, or struggling to maintain reciprocal conversations. These difficulties can extend into the workplace, where reading subtle social cues, participating in informal networking, and interpreting team dynamics are often essential to success …
The “weak central coherence” theory proposes that individuals with ASD tend to focus on local details rather than global meaning. While this can lead to remarkable attention to detail and proficiency in tasks that require precision, it may also hinder the ability to grasp the “big picture” in social interactions and work settings …”
[references omitted]
While Miss Duncan’s diagnosis in 2022 appears to indicate that at that time, she possessed a number of these characteristics, the evidence before me does not positively assert that her current diagnosis includes these traits. However, the evidence does indicate that on several occasions Miss Duncan herself asserted her diagnosis involves characteristics such as those said by her psychologist to be common to people who have ASD. It is evident to me that Miss Duncan’s neurodiversity means that she does experience challenges in interpretating social cues and intentions, and experiences emotions which can manifest in negativity, perfectionism and being argumentative or negative[8].
Miss Duncan commenced employment with IBAC, on 15 November 2024, in the role of Service Desk Analyst within its Information and Digital Services team. She worked with people including two other Service Desk Analysts - Mr Lucas Katis and Ms Amanada Narainsamy. She reported to Mr Michael Trott, Team Leader – Service Delivery.
In her role as a Service Desk Analyst, Miss Duncan assisted in the resolution of information technology issues within IBAC. IBAC uses a system to manage this work called “Ivanti Neurons”. This system generates “tickets” which are parcels of work involving the resolution of information technology issues which are allocated to the Service Desk Analysts for them to deal with.
There is no doubt that a high standard of integrity and propriety must be observed at IBAC, taking into account its important public function. This is reinforced by its internal policies and procedures, including a Code of Conduct and Value Statement. This extends to matters such as information and data security, which is governed by an Information Security Policy that imposes responsibility for information security on all IBAC personnel[9].
Not long after the commencement of her employment, Miss Duncan became concerned about what she perceived was an inequitable distribution of tickets, such that she was not being allocated a sufficient number of tickets as compared with her colleagues. Miss Duncan was clearly motivated to perform well in the job and was concerned that she was being denied opportunities to gain experience, learn and demonstrate her competency and effectiveness by not being allocated more tickets. She formed the view that another of her team members, Ms Narainsamy, was hoarding more tickets than was equitable, depriving Miss Duncan of her fair share.
There was some evidence given about the number of tickets handled by the team and their distribution among team members, and some analysis on those numbers either by way of reports provided in evidence or submission from the parties. I do not propose to summarise that evidence. I accept that Miss Duncan was genuinely aggrieved by the allocation of tickets across her team, the number of tickets she was being allocated and conduct she believed was being engaged in by Ms Narainsamy. To some extent, these matters constitute the basis upon which Miss Duncan says she exercised a workplace right within the meaning of ss 340 and 341 of the Act. I accept that Miss Duncan persistently raised this issue – about which she was genuinely aggrieved - with various managers, in the manner set out in more detail below. It is therefore not necessary for me to determine whether there was indeed a disproportionate allocation of tickets or whether Ms Narainsamy’s engaged in the conduct alleged by Miss Duncan or engaged in conduct that was improper or inappropriate.
On 22 November 2024, Miss Duncan had a meeting with her Team Leader, Mr Trott. In this meeting Miss Duncan asked for permission to work from home two days a week, and for a later start time than 8:00AM. Miss Duncan said the reason for this request was that she has a neurological condition. She did not disclose any further detail about this condition. Mr Trott said he would need to consult with his manager, Ms Goodhart, which he later did, and Miss Duncan was granted permission to commence working from home two days per week and to commence work at 9:00AM instead of 8:00AM[10].
On 17 December 2024, Miss Duncan had a meeting with Mr Trott. In this meeting, Miss Duncan raised with Mr Trott the proposition that the workload in her team was not being equitably distributed because Ms Narainsamy was “disproportionately allocating tickets to herself”[11]. During this conversation Miss Duncan said words to the effect that Ms Narainsamy’s behaviour was creating a negative work environment[12]. In conveying this to Mr Trott, Miss Duncan used the word “toxic”[13]. She said in her evidence that upon her use of this word, she saw a look of “offence and shock” on Mr Trott’s face, and then said “sorry, wrong choice of words”[14].
During this meeting, Mr Trott said, in response to the issues about the allocation of tickets, that “we’re not going to change anything that’s been working for us”[15]. It appears Miss Duncan considered that Mr Trott did not take the issue she had raised seriously[16].
During this conversation, Miss Duncan told Mr Trott she had a neurological condition which she did not want to disclose. Mr Trott said he would be happy to talk about that if she would like to, or she could talk with the IBAC workplace health and safety manager[17].
On 23 December 2024, Miss Duncan sent Mr Trott an email about Ms Narainsamy. This email did not relate to the concern held by Miss Duncan about the distribution of tickets. Rather, this email suggested Ms Narainsamy had made mistakes on two tickets she had dealt with and may require some “coaching”[18].
Mr Trott said in his evidence that he forwarded this email to Ms Goodhart “as part of a conversation around your [Miss Duncan’s] concerns for what was happening in the team[19]”.
The email, supplied as part of Ms Goodhart’s evidence says “Just FYI so you’re across this. I’ll be addressing this in probation discussion first week in Jan” [20].
In her evidence, Ms Goodhart says following receipt of the email she discussed with Mr Trott the best time to discuss the issue with Miss Duncan and they both agreed this would be in the first formal 6-week probation meeting to be booked in the week commencing 6 January 2025[21].
He also said he responded to the email on 24 December 2024 and told Miss Duncan in his email reply that they would discuss the matter in their next one on one meeting, in the new year[22].
I will pause in the narrative at this point to note that, while not a great deal turns on it, Mr Trott’s evidence about this point was dubious. His evidence, that he had forwarded Miss Duncan’s email to Ms Goodhart “as part of a conversation around [her] concerns” about what was happening in the team is not consistent with the forwarded email itself, which simply advises Ms Goodhart that he would raise it with Miss Duncan in a probationary review meeting. I do not accept, as his evidence seemed to suggest, that Mr Trott intended to act on the email with respect to the concern being raised by Miss Duncan about the quality of Ms Narainsamy’s work nor did he do so. Rather, Mr Trott’s email suggests he considered the email more to be an issue with respect to Miss Duncan’s conduct, to be raised with her in her probationary review meeting. This may reflect a view held by Mr Trott that Miss Duncan’s email was inappropriately ungenerous with respect to a more experienced work colleague (Ms Narainsamy) – a view he appeared to confirm in cross examination[23]. If this were the case, it would have been preferable that he gave his evidence about what he did with Miss Duncan’s email in a more forthright manner.
On 2 January 2025, Miss Duncan met with Ms Goodhart. During this meeting, Miss Duncan conveyed to Ms Goodhart similar concerns as those she had communicated to Mr Trott about the distribution of tickets in the team and in particular, the “behaviour” of Ms Narainsamy[24]. Miss Duncan also told Ms Goodhart she had a medical condition, that was not named, that meant her communication was blunt at times[25].
Although not mentioned in her witness statement (but conceded in cross examination), during this meeting, presumably by way of response to the issues Miss Duncan raised, Ms Goodhart said “what would you do if nothing was to change after this meeting”[26] – a comment Miss Duncan appeared to take as indication of a lack of commitment to address her concerns[27]. However, an email sent by Ms Goodhart to Miss Duncan the following day (not mentioned in Miss Duncan’s evidence) perhaps places the comment in better context[28]:
“Hi Erika
Thank you again for your time yesterday, it was a good chance to connect. I am still processing our conversation to help determine the best way to:
·support your success in this role
·respect your for privacy on your condition
·continue to maintain an inclusive and collaborative Service Desk team – for all of us
·best support IBAC’s IT requirements
Please note I don’t yet have a finalised approach or timeline – I will communicate this with you by the end of next week 10 January 2025.
Between now and then – can you please assist with helping to define the tools and processes you need to succeed?
Assume over the next 5 months there are no significant shifts to the following existing practices and culture ie:
·Ticket allocation to remain as per current practice
·Follow Knowledge articles / work instructions where available, not every issue can have a written solution
·Hybrid practices at Service Desk work based on share tasks and assisting each other with in office tasks when WFH and vice versa
·Inclusive, open and collaborative team that supports each other
Lasting change isn’t instantaneous and takes time, compromise and trust from all involved.
These practices aren’t perfect but have been working for the tea for the past 12 months – I will still review this through consultation with the team.
We also discussed specific behaviours of others within the team – let’s keep the focus on how Michael and I can help you succeed without being critical of others, as we all bring different strengths and weaknesses to a team …”
Ms Goodhart said in her evidence that she discussed the conversation she had with Miss Duncan on 3 January 2025 with her manager, IBAC Director – Information and Digital Services, Mr Fausett and also the IBAC Work, Health, Safety and Wellbeing Manager, Mr Orhan Pek[29].
In the morning of 7 January 2025, Miss Duncan met with Mr Pek, who was at the time the Acting Director of People, Culture and Capability (sharing that role with Ms Baker). Mr Pek’s handwritten notes in this meeting were tendered in evidence[30]. In this meeting, Miss Duncan again raised her dissatisfaction over the distribution of work within her team, particularly in relation to Ms Narainsamy’s conduct[31]. She described Ms Narainsamy as having “stolen tickets”[32]. She also related to Mr Pek her exchanges with Mr Trott and Ms Goodhart about these issues.
Mr Pek also asserted that “to the best of [his] recollection” Miss Duncan did not say she wished to make a “complaint” in this meeting[33]. This was a point he seemed very keen to stress under cross examination[34].
In the context of Miss Duncan’s application made pursuant to s 340 of the Act, Mr Pek’s quite deliberate and repeated emphasis on the word “complaint” evinced a level of self-interest in his evidence that somewhat diminished its quality. I will return to this point later in the narrative.
During the meeting, Miss Duncan disclosed to Mr Pek that she suffers from ASD and described some of her resultant traits and characteristics[35]. She said she requested several adjustments be made in the workplace, including a one-hour lunch break, flexible hours to attend weekly appointments with her neuropsychologist and a request to work from home three days per week.
After the meeting, Miss Duncan asked Mr Pek to attend a meeting that had been scheduled for later that day with Ms Goodhart and Mr Trott. Mr Pek agreed to attend this meeting with her.
A meeting between Miss Duncan, Mr Pek, Ms Goodhart and Mr Trott occurred later on 7 January 2025. Mr Pek made handwritten notes which were tendered in evidence[36]. Miss Duncan sent the meeting participants an email the following day with her detailed account of the meeting[37]. The salient details of what occurred during the meeting were that Miss Duncan once again relayed to participants her assertion as to the inequitable distribution of tickets within the team, which she considered was caused by Ms Narainsamy’s conduct[38]. Miss Duncan again used the phrase “stealing tickets” with respect to Ms Narainsamy[39]. Miss Duncan also confirmed that she suffered from ASD and a discussion ensued about a number of adjustments she sought be made in the workplace. In the discussion, some of the proposed workplace adjustments were agreed to and some were not agreed to[40].
I consider that the evidence shows the immediate reaction from the IBAC managers to Miss Duncan’s disclosure that she has ASD was supportive and constructive. Ms Goodhart gave evidence that following the meeting, she sought some education on ASD and accessed a slide pack of information[41]. Mr Pek sent an email late in the evening of 7 January 2025 to Mr Trott and Ms Goodhart which suggests he had taken steps to immediately inform himself about the condition, and in which he said, among other things[42]:
“…I specifically asked Erika to work directly with Michael as the line manager. It was great to see self-reflective practice and her willingness to work with Amanda to improve communication …
In the interim, based on our conversations and her condition, I would suggest the following:
·Providing her with written information over verbal instructions
·Clear deadlines, schedules, prior notice of change if possible
·No ambiguity – please be very direct and straightforward
·Structured and predictable work allocation – she needs to focus – needs purpose. Routine or consistency is key.
·Assign a buddy or mentor if possible. Maybe a few hours a week.
·Allow additional time to process information (potential sensory or regulation challenges)
·Individuals with Autism often requires encouragement, positive feedback (You are already doing this anyway)”

On 8 January 2025, Ms Goodhart sent Mr Pek and Mr Trott an email in which she advised she had briefed “Nick F” on “the events of the past few days” – no doubt a reference to Mr Faucett, the Director of Information and Digital Services and the discussions that had occurred with regard to Miss Duncan[43]. The email said that Mr Faucett was “very supportive of what we can do within the inherent role requirements”. It also said that Ms Goodhart was going to formalise the “inherent role requirements, the existing adjustments and the additional adjustments”.
On 8 January 2025, Mr Pek sent Ms Goodhart and Mr Trott a document called an “Autism Tip Sheet” which contained information for employers about working with employees with ASD, plainly designed to assist them in continuing to work with Miss Duncan as her most immediate managers[44].
In the email Miss Duncan sent the meeting participants on 8 January 2025, Miss Duncan provided another detailed account of her concern about the distribution of tickets within the team and her issues with Ms Narainsamy’s conduct in that regard, by way of a record of what was said in the meeting the previous day. The email also confirms that Miss Duncan has ASD and records the accommodations agreed to in the meeting in respect to her condition. The vast bulk of the email is devoted to recording the concerns expressed by Miss Duncan during the meeting about the ticket distribution issue.
Ms Goodhart sent Miss Duncan a reply to this email later on 8 January 2025. This email confirms agreement with one of the accommodations made for Miss Duncan – that she be permitted to start work at 9:00AM instead of 8:00AM - and also says “I am also keen to restart and reset, leaving these examples here, along with focusing on your experiences rather than speaking for others”. Miss Duncan sent a short reply to this email, to which Ms Goodhart then replied on 9 January 2025. This reply appears to have been drafted with care, plainly in an attempt to be sensitive to Miss Duncan’s recently revealed ASD diagnosis. The response provides a further explanation as to Ms Goodhart’s ongoing efforts to work through some of the workplace accommodations Miss Duncan has sought in the meeting on 7 January 2025. It says, among other things, “Rest assured Michael and I are working on this to ensure a collaborative decision-making environment where a shared perspective is available in a safe environment for the whole team.”
In their evidence, the meeting participants - including once again Mr Pek - stressed that they did not consider Miss Duncan to have made a “complaint” or “grievance” during the meeting held on 7 January 2025, or via the email she sent on 8 January 2025, quite deliberately and repetitively using that language[45]. I did not consider this evidence to be of any assistance. It was opinionated and plainly self-serving.
Also, on 8 January 2025 Miss Duncan reported to Mr Trott that she had discovered it appeared Ms Narainsamy had been working out of hours, making an entry on the system close to midnight the previous evening. Mr Trott’s response included observations about the manner in which the system recorded time and date stamps. The record of their conversation, which took place via MS Teams, was in evidence[46]. While the conversation appears on its face rather innocuous, it later emerged that Miss Duncan was aggrieved that Mr Trott too easily assumed a systems problem, rather than being more perturbed about the report she made about Ms Narainsamy’s working hours.
Miss Duncan’s dissatisfaction with Mr Trott’s response led her to seek advice from a colleague, Mr Anthony De Luca, a Senior Systems Administrator at IBAC to assist her to do some “fact checking”[47]. An exchange took place between Mr De Luca and Miss Duncan via Microsoft Teams on 9 January 2025, a transcript of which was also in evidence[48]. In the exchange, Miss Duncan asked Mr De Luca whether there was a way she could access an account on the system to see “who did what to the account and when”, because of her belief that Ms Narainsamy had been working at “around midnight” the night before. Mr De Luca initially said, “probably best to let it go” to which Miss Duncan said, “Okay sure, just keep this between us, but yes I’ll let it go”.
However, Mr De Luca then said that Miss Duncan did have access to user sign in logs. The chat then shows Miss Duncan accessed those sign in logs with respect to Ms Narainsamy and pasted screenshots of some of them into the chat. Mr De Luca made several comments to assist Miss Duncan to decipher the chat logs (such as in relation to their time stamps). The comments in the chat suggest Miss Duncan had concluded from the logs that she “was right” that Ms Narainsamy had been working out of hours, at or around midnight. Mr De Luca and Miss Duncan then had a Teams voice call in which Mr De Luca offered to take the concern Miss Duncan had about what the log in times appeared to show with respect to Ms Narainsamy to Mr Trott[49].
Mr De Luca mentioned this exchange to Mr Trott later that day. He sent a copy of the chat to Mr Trott at his request.
Mr Trott said he was “surprised and extremely disappointed to see that Miss Duncan had taken this action”. He sent an email to Ms Goodhart in which he attached the chat transcript and said “I have serious concerns regarding a number of elements of this conversation and the language being used by Erika”[50].
The next day – 10 January 2025, Mr Trott, Ms Goodhart and Mr Pek met and discussed the chat transcript. There is not a great deal of evidence before me as to precisely what was said during this meeting. Ms Goodhart’s evidence was that in the meeting “we concluded that Miss Duncan’s actions breached the Information Security Policy which specifies the requirement for all authorisation to systems or data to have an audit trail of access being granted[51]”.
Following this meeting, Mr Pek had a phone conversation with Ms Nicole Baker, who is the IBAC Human Resource Services Manager. Mr Pek said during this conversation[52]:
“Ms Baker and I received the information that had been provided to us and we determined that Miss Duncan had breached the VPS Code of Conduct, IBAC Security Information Policy and IBAC Values. We were also of the view that Miss Duncan had breached the trust afforded to IDS Help Desk staff who have access to extremely sensitive and confidential information across the organisation. Both Ms Baker and I agreed that Miss Duncan’s actions constituted Serious Misconduct.”
Mr Pek also said that “we both agreed that the most appropriate recommendation would be termination of employment”[53]. Similarly, Ms Baker said “Mr Pek and I also agreed that the serious nature of the incident would likely require a recommendation of termination of employment during probation to the CEO[54]”. Ms Baker also said she and Mr Pek agreed that they needed to brief Ms Jane Whiter, the IBAC Acting Executive Director and that Mr Pek said he would speak to Ms Whiter at 12:30PM that day[55].
The explanation as to how Miss Duncan’s conduct may breach policy was that as an employee who had been granted system administrator privileges it was necessary – according to the IBAC Information Security Policy – that all authorisation to systems or data have an audit trail of access being granted[56]. It was also said that Miss Duncan was in breach of the Code of Conduct for Victorian Public Sector Employees of Special Bodies, because it obliges employees to be impartial, respectful and conduct themselves with integrity, and the unauthorised access of another employee’s work is a breach of their privacy[57]. This appears to have been an immediate concern by the IBAC managers upon learning of Miss Duncan having accessed Ms Narainsamy’s sign in logs. In her evidence, Miss Duncan conceded her access to the sign in logs was a policy violation[58].
Mr Pek said he met with Ms Whiter via Microsoft Teams at 12:30PM on that day – 10 January 2025[59]. Mr Pek said “Ms Whiter and I decided the most appropriate course of action would be to prepare a briefing note for the Chief Executive Officer (CEO) to review”, and that it “was also agreed that the briefing note should be drafted by Ms Baker in conjunction with Ms Goodhart and Mr Trott”, and it “was also agreed that the briefing note should include a recommendation for termination of employment during probation”[60].
Ms Whiter’s witness statement does not mention this meeting with Mr Pek. In her oral evidence, she said she had not met with Mr Pek prior to a meeting which occurred with him later – on 13 January 2025[61]. The inconsistency between this evidence, and Mr Pek’s evidence that she did meet with him on 10 January 2025 was not put directly to Ms Whiter.
As I will expand on further below, I am somewhat perturbed several aspects of Ms Whiter’s evidence, including the omission of a reference to this meeting. The evidence weighs in favour of a finding that she did indeed meet with Mr Trott before 13 January 2025 – on 10 January 2025 via Microsoft Teams at 12:30PM. This was Mr Trott’s evidence, also referred to in Ms Baker’s evidence, and in Ms Byrne’s evidence who says that later on 14 January 2025 Ms Whiter told her she had been informed of the matters concerning Miss Duncan by the people and culture team “the previous Friday”[62] (10 January 2025). It is unclear why Ms Whiter’s Statement of Evidence omits the meeting with Mr Trott via Microsoft Teams on 10 January 2025 and why she said plainly, in her oral evidence, she did not meet with Mr Trott before 13 January 2025.
According to both Mr Pek and Ms Baker, after his meeting with Ms Whiter, Mr Pek contacted Ms Baker to ask her to draft a briefing note for the IBAC CEO[63]. Ms Baker said this occurred via a Microsoft Teams message sent to her by Mr Pek at 1:46PM on 10 January 2025[64]. Ms Baker said she prepared the briefing note on 13 and 14 January 2025[65].
The “briefing note” which was ultimately prepared was a matter of controversy in this proceeding because it is, to some extent, the apparent record as to the reason for the termination of Miss Duncan’s employment[66]. The controversy arises because while on the one hand, it describes in detail a “misconduct incident” involving Miss Duncan’s unauthorised audit of Ms Narainsamy’s computer logs – said to be a breach of the VPS Code of Conduct for Victorian Public Sector Employees of Special Bodies, and the IBAC Information Security Policy – it also contains a section called “background” which references matters such as “concerns regarding Miss Duncan’s interpersonal communication style”, a “combative communication style often using inflammatory language” and “team behaviours (including the unnecessary assessment of colleagues’ work)”. Arising from these references is the contention that Miss Duncan’s “behaviour” and possibly her complaints about Ms Narainsamy and the conduct within the team were reasons for the decision to terminate her employment[67].
The evidence as to the creation of the briefing note was patchy. In his evidence, Mr Pek said he had originally agreed with Ms Whiter that the briefing note should be “drafted by Ms Baker in conjunction with Ms Goodhart and Mr Trott”[68]. He also said, in answer to a question as to whether he was personally involved in the briefing note creation, that he “initially provided my recommendations”, but that Ms Baker was overseeing the process[69]. Neither Ms Goodhart or Mr Trott refer to its drafting or their input into its construction in their Statements of Evidence. Ms Baker was asked in cross examination about the inclusion in the briefing note of commentary about Miss Duncan’s communication style. Ms Baker was asked where those comments, included in the briefing note, came from and said “they were examples given to me by Miss Duncan’s managers”[70]. She then confirmed these were “Michael and Sarah”[71] who I take to be Mr Trott and Ms Goodhart. I note in this regard that one of the matters mentioned in the briefing note was the comment made by Miss Duncan to Mr Trott in a conversation between them in which she used the word “toxic”. Ms Baker also said in relation to these “concerns” that were included in the briefing note “they weren’t raised with me until the briefing note was being prepared”[72]. While it is unfortunate Ms Baker was not given the opportunity to explain these matters more directly, it does appear from this exchange that on Ms Baker’s evidence, there was some degree of collaboration between her and Ms Goodhart in the creation of the briefing note, and perhaps also Mr Trott.
Ms Goodhart was not asked directly whether she made a contribution to the drafting of the briefing note, and her evidence was simply that later, after the draft was prepared, she “endorsed” it[73]. Mr Pek said that Ms Goodhart worked together with Ms Baker on the briefing note[74].
However, Mr Trott denied ever having seen the briefing note until when he was shown it in the witness box. He also said, plainly, “I had no part in the creation of the briefing note”[75]. In re-examination, he was reminded he had been emailed a copy of the briefing note on 14 January 2025 but said that he did not recall this occurring[76].
Ms Whiter’s evidence was that on 13 January 2025, Ms Baker approached her and told her that there had been a “sensitive employee event”[77]. She said she met on this day in a private office with Ms Baker and Mr Trott where she was given a “detailed history” of the matters concerning Miss Duncan[78]. Ms Whiter gave reasonably extensive evidence about this conversation, and enquiries she made into matters including how Miss Duncan had accessed Ms Narainsamy’s account, what systems were used, Miss Duncan’s onboarding process and training, supports that had been provided to Miss Duncan in relation to an “underlying medical condition” (the details of which were not disclosed to her)[79]. There appears no doubt Ms Whiter’s evidence as set out in her Statement of Evidence is that this was the first time she had heard about the matters concerning Miss Duncan.
Neither Ms Baker nor Mr Pek gave any evidence about this meeting at all. It was not mentioned in either of their Statements of Evidence. As mentioned above, Mr Pek said he met with Ms Whiter the previous week – on 10 January 2025, at 12:30PM via Microsoft Teams, and informed her of the information he had received about Miss Duncan.
As both Ms Baker and Mr Pek give reasonably comprehensive accounts of the sequence of events from 10 January 2025 through to 14 January 2025 (when Miss Duncan’s employment was terminated), it is striking neither refer at all to the meetings which Ms Whiter said occurred with them on 13 January 2025. The incongruity increases when Ms Whiter’s omission from her evidence of any reference to a meeting with Mr Pek on 10 January 2025 is taken into account.
Ms Whiter said that after meeting with Mr Pek and Ms Baker on 13 January 2025, over the next few hours, they were able to provide her with more information about Miss Duncan’s induction process[80] (once again, not mentioned by either Mr Pek or Ms Baker). Ms Whiter also said she spoke with Mr Fausett, the Information Digital Systems Director, and Ms Goodhart, obtaining further information from each about some of the technical details relating to Miss Duncan’s access of Ms Narainsamy’s account. Neither Mr Fausett or Ms Goodhart mentioned being contacted by or spoken to by Ms Whiter on 13 January 2025.
Ms Whiter’s evidence then relates several further engagements with Mr Pek and Ms Baker she says occurred on 13 January 2025 that are not corroborated by either of them. These are:

a.That she had a further meeting with Ms Baker and Mr Pek and told them her view was that Miss Duncan’s conduct was serious, and may have been in breach of the VPS Code of Conduct for Victorian public sector employees of special bodies.
b.That in this meeting she asked for further information to be provided to her.
c.That in this meeting she asked Mr Baker and Mr Pek to prepare a briefing note for Ms Byrne (the CEO) and spoke about what information needed to be provided.
d.That in this meeting she sought information from Mr Pek and Ms Baker about the IBAC termination process and the IDS team itself.
e.That later on 13 January 2025 Ms Whiter spoke to Mr Pek again and told him that her view was that Miss Duncan had breached the Code of Conduct and IBAC Security Information Policy.
f.That she also sought more information from Mr Pek about the accommodations that had been made for Miss Duncan to get a better understanding of her generally.
g.That she also discussed with Mr Pek the sequencing of a termination meeting in respect of Miss Duncan.

Ms Whiter’s evidence is, in summary, that she was only informed of the matters relating to Miss Duncan on 13 January 2025, and on this day made a range of enquiries with various people, and as is related in her evidence, during the course of the day began to form a view “may have been in breach of the VPS code of conduct [my emphasis]”[81], and then later did form this view[82].
Several concerns arise from this evidence, in circumstances where Mr Pek’s evidence is that he informed Ms Whiter of these matters on 10 January 2025 (an assertion corroborated to some extent by Ms Baker). One is the proposition made by Ms Whiter that she told Ms Baker in this meeting with Ms Whiter, said to have occurred on 13 January 2025, to draft the briefing note. Both Ms Baker and Mr Pek’s evidence is clear that she was given this instruction by Mr Pek, not Ms Whiter, on 10 January 2025 (on Ms Baker’s precise account – via a Microsoft Teams message sent at 1:46PM).
Another concern is the suggestion that Ms Whiter formed the view that Miss Duncan had breached the Code of Conduct and the Security Policy over the course of 13 January 2025, based on her accumulation of information during the course of the day. Neither Mr Pek, Ms Baker, Ms Goodhart or Mr Fausett mentioned speaking to Ms Whiter at all on this day. Mr Pek said Ms Whiter had agreed with him on 10 January 2025 when he spoke to her, that a recommendation of termination of employment should be made.
Below I explain the manner in which I consider it appropriate to deal with this incongruity in IBAC’s evidence.
Ms Whiter spoke with the IBAC CEO, Ms Byrne, in the morning of 14 January 2025. Ms Byrne said Ms Whiter told her she and Mr Pek both believed the most appropriate course of action would be termination of employment[83].
Ms Byrne says at this time – the morning of 14 January 2025 – that[84]:
“I advised Ms Whiter to prepare a briefing note outlining all of the details of the breach and our relevant policies and procedures, for my consideration and review.”
This is the third alternative version of the genesis of the briefing note. Ms Baker said she prepared the briefing note on 13 and 14 January 2025 after having been instructed to prepare it by Mr Pek on 10 January 2025 (at precisely 1:46PM via Microsoft Teams message). Ms Whiter said she told Ms Baker to prepare the briefing note on 13 January 2025. Ms Byrne says she told Ms Baker to prepare it, on 14 January 2025, only hours before it was then sent. I will also deal with this incongruity below.
Ms Baker’s evidence, including a copy of her email, was that the briefing note was sent in draft form by her to Mr Faucett and Ms Goodhart for their “review and signature” at 11:31AM on 14 January 2025[85], copying in Ms Whiter, Mr Pek and Mr Trott. Ms Whiter made an amendment, and then a final version was sent to Ms Whiter and Mr Faucett for their endorsement, before it was then sent to Ms Byrne for her signature.
Ms Byrne said that upon receipt of the briefing note she approved the recommendation contained in it that Miss Duncan’s employment be terminated for reasons set out in the briefing note[86]. A letter for Miss Duncan advising her of the termination of her employment was then drafted by Ms Baker and signed by Ms Byrne.

Later that day, Ms Baker arranged a meeting to occur between her and Miss Duncan, and Mr Faucett by sending her a message via Microsoft Teams. The message did not advise as to the reason for the meeting. In the meeting, Ms Baker advised Miss Duncan as to the breach of the Information Security Policy and Code of Conduct alleged to have occurred with respect to “incident that occurred on 9 January 2025”[87]. Ms Baker also said she explained that “as a result of the breach, there was a significant loss in trust which would require IBAC to remove Miss Duncan’s IDS Administrator access, and, as this access was an inherent requirement of Miss Duncan’s role, her employment relationship was untenable and a decision had been made to terminate her employment[88]. Miss Duncan was offered but refused a taxi voucher in order to travel home. She was later sent a copy of the termination letter.
The termination letter says that the decision not to continue Miss Duncan’s employment was because of the “incident that occurred on 9 January 2025” in which Miss Duncan used her administration access to audit an employee’s work without relevant approval or authority, in breach of the VPS Code of Conduct for Victorian Public Sector Employees of Special Bodies and the Information Security Policy[89].

The decision to terminate Miss Duncan’s employment

As is explained further below, an application such as this one will usually require considerable focus on the decision to terminate the employment, and the identity of the decision maker.
In this regard the evidence before me is, in summary:

a.Ms Byrne said she made the decision to terminate Miss Duncan’s employment by approving a recommendation made in the briefing note[90]. Ms Byrne holds the relevant delegation to approve the termination of IBAC employee’s contracts of employment[91].
b.Ms Whiter said she considered that the briefing note should include a recommendation of termination and endorsed the briefing note containing that recommendation[92].
c.Ms Baker, who I consider to be the originator of the text of the briefing note, said she agreed with Mr Pek on 10 January 2025 that the serious nature of the incident involving Miss Duncan would likely require a recommendation of termination of employment[93] and included that recommendation in the briefing note when she sent the draft on 14 January 2025[94].
d.Mr Pek said that he and Ms Baker agreed the most appropriate recommendation to make was that Miss Duncan’s employment be terminated[95]. He said he also reached agreement with Ms Whiter that the briefing note include this recommendation[96]. When asked whether he was the “primary decision maker” in relation to the decision to dismiss Miss Duncan, he said “partially”[97], and described it a “recommendation”[98], albeit also referring to it as “our decision”[99]. He did not baulk when asked in re-examination about his “reasons for dismissal”[100].
e.As I have observed above, the evidence about Ms Goodhart’s role in the construction of the briefing note was not entirely clear. It is clear that Ms Goodhart endorsed the briefing note which included the recommendation that Miss Duncan’s employment be dismissed[101].
f.Mr Faucett also endorsed the briefing note, conscious that it included a recommendation that Miss Duncan be dismissed[102].

Inconsistencies in the evidence

In this matter, I received a Form F53 Notice of Commencing to Act from solicitors for IBAC on 14 May 2025, some months after I had begun to deal with the proceeding. Thus, the Statements of Evidence and other materials filed by IBAC up until that point were not prepared by those solicitors and were presumably prepared by in-house personnel.
Above I have observed several instances in which the manner in which some of the evidence given by IBAC in this proceeding – particularly through their Statements of Evidence – was less than satisfactory. The common theme of these instances was that the evidence in my view was often given in a manner that was blatantly self-serving.
The most glaring problem was the evidence of Ms Whiter, that failed to mention a meeting I consider occurred on 10 January 2025 between her and Mr Pek, in which she agreed with Mr Pek that a recommendation be made that Miss Duncan’s employment be terminated. Her failure to mention this meeting, which I consider did occur, taints her evidence about her deliberations on 13 January 2025, which suggests a much more considered process to arrive at a decision in favour of termination of employment. In my view, the evidence Ms Whiter gives of her investigations and deliberations on 13 January 2025, which is not corroborated by any of the other witnesses in this matter (and indeed, contradicted by some of them) is plainly a self-serving attempt to isolate the identity of the decision makers in this proceeding for a perceived benefit in IBAC’s defence of this application.
Ms Whiter did not instruct Ms Baker to prepare the briefing note on 13 January 2025, as she said she did. Rather, this instruction was given by her through Mr Pek, on 10 January 2025, conveyed to Ms Baker by him via a Microsoft Teams message on that day. This is reflected in my findings on the evidence – it is also submitted to be the case in IBAC’s own chronology, filed with its Closing Submissions[103]. The self-serving nature of Ms Whiter’s evidence I have described above appears to have caused her to become confused over when and how this instruction was given. Ms Byrne’s evidence – that she instructed Ms Baker to prepare the briefing note on 14 January 2025 – is also obviously an error.
Below, I outline my determination that none of Miss Duncan’s conduct amounts to an exercise of her workplace rights within the meaning of ss 340 and 341 of the Act, and how I consider the evidence weighs in favour of a determination that IBAC has, in so far as it is necessary, discharged any onus it has to displace the notion that Miss Duncan’s protected attribute played a part in the decision to terminate her employment. However, I consider the evidence given by several of IBAC’s personnel in this proceeding was often self-serving, generally clumsy and at times lacked the candour demanded by its own values. In this regard IBAC’s conduct in this proceeding was well-below the standard that is expected of a public authority of its kind.

The legislative provisions

Part 3-1 of the Act provides protections from adverse treatment arising from the exercise of employment rights and in relation to adverse treatment that is discriminatory if it is taken because a person has a particular protected attribute.
Section 340 provides as follows
340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.
Note: This subsection is a civil remedy provision (see Part 4‑1)
Section 351 provides as follows:
351 Discrimination
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti‑discrimination law in force in the place where the action is taken; or
(b) taken because of the inherent requirements of the particular position concerned; or
(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
An employer will contravene ss 340 or 351 if it can be said that it was actuated by a particular reason or circumstance, if that reason or circumstances was a “substantial and operative factor” in influencing the adverse action[104].
Adverse action is described in s 342 of the Act. A table in s 342 of the Act sets out when adverse action is taken by an employer against an employee it includes an employer dismissing the employee.
It has been said that ss 360 and 361 of the Act make it easier than it otherwise would be for an employee to establish a contravention of Part 3-1 of the Act[105]. Section 360 provides that, for the purposes of Part 3-1, “a person takes action for a particular reason if the reasons for the action include that reason”. Section 361(1) casts a presumption that requires an employer to show that it did not act for a prohibited reason. It provides as follows:
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
The presumption in s 361 does not arise until the applicant establishes the elements of each of the general protections upon which it seeks to rely. An applicant must still prove the existence of the objective facts which are said to provide the basis of the respondent’s conduct (in this case, the termination of Miss Duncan’s employment). This is not a matter of mere allegation or assertion - it is not enough for the applicant to merely make assertions regarding these elements, they must be determined objectively[106].
Further, there must be an evidentiary basis consistent with the hypothesis that a Respondent was actuated by a proscribed reason in relation to the particular action (in this case, termination)[107].
In Keep v Performance Automobiles Pty Ltd[108] a Full Bench of this Commission said that in a consent arbitration proceeding concerning an allegation that adverse action is taken because of the exercise of a workplace right, the task of the Commission is to determine three factual questions:

a.Was the employee exercising a workplace right, within the meaning of s 341?
b.Did the employer take ‘adverse action’ against the employee, within the meaning of s 342?
c.Did the employer take the adverse action against the employee because of a prohibited reason, or for reasons which included that reason?

A similar approach may be taken in respect to s 351, also taking into account the “exceptions” outlined in s 351(2).

The relevance of unfairness

In this matter, Miss Duncan complains passionately that she was treated unfairly by IBAC. The relevance of “unfairness” in a general protections application must be handled with care. A general protections application does not involve “a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome” [109]. However, evidence of unfairness might impugn a Respondent’s explanation that its conduct was for reasons other than those that are prohibited by Part 3-1[110].
To comprehend this paradigm, it is useful to have regard to several comments made by the Federal Court about these matters. In Ermel v Duluxgroup (Australia) Pty Ltd (No 2)[111], Bromberg J said at [48]:
“In general protections claim brought pursuant to s 340 of the FW Act, success depends upon the Court being satisfied that the applicant has been subjected to adverse action for one or more of the specific reasons identified by the FW Act as an impermissible basis upon which action adverse to the applicant may be taken. A general protections proceeding is not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome. As Gray, Cowdroy and Reeves JJ said in Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31]:
A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts.”
And in Wong v National Australia Bank Ltd[112] (Wong) the Full Federal Court approved the following observations made at first instance in Wong v National Australia Bank Ltd[113]:
“81 Where, by way of rebuttal of the presumption established by s 361 of the FW Act, a respondent leads evidence as to why it engaged in the conduct that an applicant seeks to impugn, the relevant inquiry starts and ends with whether, in fact, those reasons relevantly actuated that conduct. It is not necessary for a respondent to prove that the reasons that actuated its conduct were procedurally or substantively fair ...
82 Thus where, as here, a respondent employer cites, as its reasons for taking adverse action against an applicant, opinions that it formed about his or her conduct or capacity, the relevant inquiry is not whether those opinions were fairly or properly formed or vindicated in fact. Rather and more simply, the relevant inquiry is whether the opinions were formed at all and, if they were, whether the respondent was moved to act as it did in consequence of them. A claim under Pt 3-1 of the FW Act ‘… is not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome’ …
83 In some circumstances, it might be possible to infer from evidence tending to show that a respondent’s opinions were formed wrongly or unfairly—that is to say, inconsistently with fact or in a way otherwise susceptible to some other legitimate criticism—that those opinions either were not, in fact, formed or did not relevantly actuate the respondent’s conduct (or both). Such circumstances might warrant the rejection of the respondent’s evidence as to why it did what it did and a finding that the respondent failed to rebut the presumption established by s 361 of the FW Act. But, regardless, the inquiry remains: did the respondent form the views that it said that it formed; and, if it did, was it actuated to conduct itself in the way that it did on account of them (and not on account of any proscribed reason)?
[References omitted]
It is therefore necessary for Miss Duncan to establish that she exercised a workplace right and / or had a protected attribute, and that adverse action was taken against her, taking into account that the evidence must be consistent with the hypothesis in taking the action IBAC was actuated by reasons which included her exercise of workplace rights / or a protected attribute. If she can establish these matters, IBAC must rebut the presumption established by s 361 and prove that the reason for the adverse action was other than that Miss Duncan’s exercise of her workplace rights or her protected attribute[114]. Establishing general “unfairness” of the kinds Miss Duncan claims occurred will not assist her unless it leads to the conclusion that IBAC’s evidence that it did not take adverse action for reasons that include the exercise of workplace rights and / or Miss Duncan’s protected attribute should be rejected.

Does Miss Duncan have a protected attribute?

Section 351 of the Act operates to protect attributes including “physical or mental disability”. This phrase is not defined in the Act but has been considered to be understood to refer to a particular physical or mental weakness or incapacity and to include a condition which limits a person’s movements, activities or senses[115]. It includes a condition and its manifestations[116] but not every consequence of a disability which is to be regarded as a manifestation of the disability is to be regarded as comprising part of the disability[117].
There is no dispute that Miss Duncan has a “disability” within the meaning of s 351, that being her ASD[118]. She therefore has a protected attribute.
In so far as Miss Duncan asserts that she exhibited manifestations of her disability, IBAC submits that some of the evidence before me from which I may conclude particular traits or behaviours might be manifestations of ASD is “untested and unexplained” and should be given no weight – referring to the fact that while some reports were provided from Miss Duncan’s psychologist he was not called to give evidence in this matter[119]. Miss Duncan claims the absence of the psychologist does not diminish the expert opinion provided in the reports and that there has been no counter-expert evidence challenging the “findings” in the reports[120].
There is merit in IBAC’s submissions about this matter and Miss Duncan’s submissions demonstrate a lack of understanding as to how the Commission deals with expert evidence. I cannot conclude with any certainty that specific conduct engaged in by Miss Duncan was necessarily an expression of her ASD simply on the basis of a letter provided to the Commission by a person who did not appear and explain how his views have been formed, subject to cross examination if necessary. Further, in the absence of such evidence, I cannot conclude with any certainty the degree to which characteristics or traits exhibited by Miss Duncan can be said to be consistent with her ASD diagnosis, or her behaviour was a manifestation of ASD.
Thus, in these circumstances I must exercise caution in relation to the conclusions I can draw from the evidence. I do consider there is sufficient evidence before me to allow the conclusion that, insofar as Miss Duncan engaged in behaviour which exhibited challenges interpretating social cues and intentions, or displayed emotions manifesting in negativity, perfectionism or was argumentative or negative[121], she was exhibiting manifestations of ASD. However, I cannot be certain as to the degree to which this was so, based on the evidence before me.

Did Miss Duncan exercise a workplace right?

Section 341 provides as follows:
341 Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.
Meaning of process or proceedings under a workplace law or workplace instrument
(2) Each of the following is a process or proceedings under a workplace law or workplace instrument:
(a) a conference conducted or hearing held by the FWC;
(b) court proceedings under a workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot;
(e) making, varying or terminating an enterprise agreement;
(f) appointing, or terminating the appointment of, a bargaining representative;
(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h) agreeing to cash out paid annual leave or paid personal/carer’s leave;
(i) making a request under Division 4 of Part 2‑2 (which deals with requests for flexible working arrangements);
(ia) giving a notification, or receiving an offer or notice, under Division 4A of Part 2‑2 (which deals with casual employment);
(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k) any other process or proceedings under a workplace law or workplace instrument.

In her closing submissions, Miss Duncan submitted that she exercised her workplace rights by making complaints or inquiries as follows[122]:

a.A verbal “complaint” made to Mr Trott on 17 December 2024 regarding “toxic culture” and “stealing tickets” (complaint or inquiry 1)
b.An email set to Mr Trott on 23 December 2024 concerning “Amanda - Ticket Coaching” (an allegation that Ms Narainsamy’s work was sub-standard) (complaint or inquiry 2)
c.A verbal “complaint” made to Ms Goodhart on 2 January 2025 “reiterating” concerns about Ms Narainsamy’s “behaviour” (complaint or inquiry 3)
d.A verbal disclosure of autism and verbal “complaints” made about Ms Narainsamy’s to Mr Pek in the AM of 7 January 2025 (complaint or inquiry 4)
e.A “formal complaint” made via email sent to Mr Trott, Ms Goodhart, and Mr Pek on 8 January 2025 (complaint or inquiry 5)
f.An “inquiry” via an MS Teams with Mr Trott on 9 January 2025 regarding "locale issue" (the unusual timestamp on one of Ms Narainsamy’s communications) (complaint or inquiry 6)

During this proceeding, including in its closing submissions, IBAC complained that the identification of the complaints / and or inquiries and the nature of the disability Miss Duncan asserted were in a state of flux or confusion[123]. It noted that Miss Duncan has in this matter filed a “myriad” of material, including several submission and other documents[124] but that under cross examination, Miss Duncan confirmed that three matters formed the basis of her “complaints or inquiries”, namely, (1) Ms Narainsamy’s unwillingness to share IT tickets, (2) Ms Narainsamy’s taking tickets assigned to Miss Duncan without consultation, and (3) Miss Duncan’s concerns that Ms Narainsamy was working outside of her contracted hours[125], and that the Commission should deal with Miss Duncan’s alleged complaints and inquiries through this lens[126]. My consideration of these matters is as follows:

a.I agree with IBAC’s submissions that Miss Duncan filed a myriad of material in support of her application. Some of this material was prolix or sometimes using histrionic language and, in this regard, not of particular assistance to the Commission and may have been at times difficult for IBAC to interpret.
b.Miss Duncan was self-represented in this matter, as opposed to IBAC, who had the benefit of in-house industrial and human resources expertise, external solicitors and Counsel. Miss Duncan is therefore entitled to a degree of leeway in the presentation of her case and I do not consider IBAC to have been denied procedural fairness if, with the resources at its disposal, it was required to work slightly harder than might otherwise have been the case if Miss Duncan was represented, to discern the contentions being put against it. The materials filed by Miss Duncan, despite their quality make the case she brings against IBAC plain enough.
c.The Commission is not a Court of pleading and even a Court of pleading will allow “a fair amount of tolerance”, “so long as the circumstances are such that all parties to the action have had fair notice of what will be determined”[127].

I do not accept that IBAC was ever entitled to misapprehend that Miss Duncan’s case with respect to her disability – ASD – and its manifestations was based on her allegation, a reason for her dismissal.

d.Miss Duncan’s closing submission, filed in writing, made clear the alleged complaints or inquiries she argues amounted to an exercise of her workplace rights. This statement of those alleged complaints or inquiries was broadly consistent with what was possible to discern from the way she had put her case in the various documents she filed. IBAC had this statement when it filed its closing submissions.

This matter must ultimately be determined on the evidence and arguments presented by the parties[128]. On this basis, and having some regard to the submissions made by IBAC, I do consider it appropriate that the question as to Miss Duncan’s exercise of workplace rights be determined on the basis of how she described it to have occurred in her closing submissions and in her evidence and submissions at hearing. I thus intend to take Miss Duncan’s statement of the complaints or inquiries as set out in her closing submissions as her statement of case as to this aspect of her application (noting that this is the way IBAC has met the case against it in its submissions, in this particular regard).
On the basis of these submissions, I did not understand Miss Duncan to claim that her exercise of a workplace right related to her ability to initiate or participate in a process or proceedings under a workplace law to seek compliance with a workplace law or instrument. I also did not understand Miss Duncan to be claiming her exercise of a workplace right related to her entitlement to the benefit of or a role or responsibility under a workplace law, workplace instrument or an order made by an industrial body, or a complaint or inquiry made to a person having the capacity under a workplace law to seek compliance with a law or a workplace instrument. Miss Duncan claims she exercised of a workplace right by making complaints or inquiries in relation to her employment.
The ability to make complaints or inquiries that is protected by ss 340(1)(a)(ii) and 341(1)(c) of the Act includes complaints or inquiries made by an employee to the employer itself[129]. A “complaint” must be more than a mere request for assistance, and evince discontent, but need not be formalised or be identified by the employee expressly as a complaint or grievance or use any particular form of words (such as the word “complaint”) [130].
An “inquiry” involves an “investigation or examination made for the purposes of acquiring knowledge or information”[131]. In some cases an inquiry might be a request for assistance[132].
Obviously, not every communication of an inquisitive nature between an employee and an employer will amount to a “complaint” or an “inquiry”. As Snaden J said in Messenger v Commonwealth (Represented by the Dept of Finance)[133]:
“ …in order that a complaint or inquiry made in relation to employment might qualify as the exercise of a workplace right, an employee must first demonstrate that it was made in the exercise of, or otherwise to protect or vindicate, some right or entitlement conferred upon them, whether instrumentally or otherwise. It is not sufficient that a complaint or inquiry is made simply because the employee feels (with good justification or otherwise) that he or she has something about which to complain or inquire. (emphasis added)”
The complaint or inquiry must be in relation to the employment. In Cigarette & Gift Warehouse Pty Ltd v Whelan[134] (Whelan) a Full Court of the Federal Court said:

“The following discussion of principle by the primary judge (at [33]–[34]) is, with respect, unremarkable and correct:

33 Section 341(c)(ii) defines a workplace right in an employee as being the entitlement of the employee to make a complaint or inquiry in relation to his employment. In such cases as Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 242 IR 1 (Shea), Murrihy v Belezy.com.au Pty Ltd [2013] FCA 908; 238 IR 307; and Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; 243 IR 468 (Walsh), s 341(c)(ii) was interpreted broadly. In Walsh [41], Bromberg J observed that the requirement in s 341(c)(ii) that a complaint or inquiry by the employee be “in relation to” his employment means that there must be a relationship between the subject matter of the complaint and the complainant’s employment. As Dodds-Streeton J further observed in Shea, a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise.
34 As a general proposition, a complaint or inquiry to the employer by an employee in relation to his or her entitlement to an incentive bonus, or the failure of the employer to prepare an incentive bonus plan, where the terms of employment of that employee make provision for payment of such bonuses or the preparation of such plans, would fall within the scope of s 341(c)(iii) of the FW Act.”

This approach was affirmed in Alam v National Australia Bank Limited[135], where the Court observed that what is protected by s 341 are complaints or inquiries founded on a source of entitlement arising from employment, but that source of entitlement need not necessarily be found in the contract of employment or instrument– it may relate to any subject matter for which the contract of employment makes provision[136].
The preferred approach has been expressed as a “broad approach” to the question of what may constitute a complaint or inquiry for the purposes of s 341 of the Act[137], which may be summarised as follows:

a.A “complaint” within the meaning of s 341 of the Act must be more than a mere request for assistance, but encompasses communications conveying grievance, fault or accusation, seeking redress or relief.
b.An “inquiry” is an investigation or an examination made for the purposes of acquiring knowledge or information.
c.The complaint or inquiry must be founded on a source of entitlement, whether instrumental or otherwise[138].
d.The source of entitlement need not necessarily be found in the contract of employment – it may relate to a subject matter for which the contract of employment makes provision.

With regard to these principles, I do not consider that any of what are described as complaints or inquiries in Miss Duncan’s statement of that matters set out in her closing submissions are complaints or inquiries of the kind to which s 341(1)(c) of the Act refers.
A general observation I will make is that it appears to me that as these events unfolded – as Miss Duncan’s level of frustration at her workplace built, and then her employment was terminated, and then she moved through the litigation process – her characterisation of some of the communications and exchanges she had during her employment has naturally intensified. What may have been, at the time, somewhat innocuous observations made by Miss Duncan to one of her managers, or an expression of a feeling of dissatisfaction about a workplace situation, now rise to the level of “complaint”. It is no doubt difficult for Miss Duncan to look back at these communications and exchanges uncoloured by the experience of the termination of her employment and the litigation. In some of the materials she has filed (such as her closing submissions) this seems to have given rise to a reimagination of some of these conversations. For example, these matters were related by Miss Duncan in her Submissions to the Code of Conduct for Victorian Public Sector Employees of Special Bodies, provisions of the Act[139], workplace health and safety[140] and anti-discrimination legislation[141] – concepts which were not invoked expressly by Miss Duncan in any of the communications she refers to. I cannot engage in this type of revisionism. I must consider these communications engaged in by Miss Duncan based on the evidence before me, as they occurred at the time, before the termination of employment and what happened afterwards.
In relation to complaint or inquiry number 1, on the evidence before me, Miss Duncan was relating an observation, apparently for the purpose of making Mr Trott aware as to Ms Narainsamy’s conduct with respect to tickets. Her observation extends to the culture within her team. The closest the conversation came to being “accusatory” was when Miss Duncan used the term “toxic” although her evidence was that she, in effect, misspoke by using this term. Her observations did not rise to the level of a “complaint”. Her observations were not rooted in some discernible source of employment entitlement such as a particular role she had to make such observations or assessments or convey them.
In relation to complaint or inquiry number 2, Miss Duncan sent an email to Mr Trott alleging Ms Narainsamy made some mistakes in her work. This communication was also Miss Duncan’s commentary or observation about work Ms Narainsamy’s had performed. It was not a “complaint”.
In relation to complaint or inquiry number 3, Miss Duncan spoke to Ms Goodhart, “reiterating” the observations she had conveyed to Mr Trott about Ms Narainsamy and her conduct with respect to tickets. This, being a reiteration of the observations she conveyed to Mr Trott, does not constitute a “complaint” for the purposes of s 341(1)(c) for the same reasons as set out in relation to complaint or inquiry number 1.
Complaint or inquiry number 4 is put as both Miss Duncan’s advice to Mr Pek that she had ASD, and as the conveyance of similar observations about Ms Narainsamy to Mr Pek as she had related to Mr Trott and Ms Goodhart. In this conversation, Miss Duncan said Ms Narainsamy had “stolen” tickets. In this sense, Miss Duncan’s level of accusation and grievance was greater than that involved in her conversations with Mr Trott and Ms Goodhart. However, as is the case in respect to complaints or inquiries 1, 2 and 3, Miss Duncan’s observations about what Ms Narainsamy may have been doing with tickets, even if they rise to the level of “complaint”, do not derive from some source of employment entitlement – such as a particular role she had to oversee the distribution of tickets or operating procedures relating to their distribution. They are observations – perhaps even grievances – but relating to unhappiness about a workplace interaction.
Miss Duncan’s closing submissions also reference, in this conversation in which she disclosed to Mr Pek her ASD diagnosis, an implicit raising of “a fault in the workplace's accommodation of my needs”[142]. In its closing submissions, IBAC argued that this was not a matter about which Miss Duncan had said at any point (until this submission) was a subject of a complaint or inquiry[143]. I agree. Miss Duncan has not framed her case as being one in which adverse action was taken against her because she made a complaint about accommodations she sought in relation to her neurodivergence not being granted. In any event, I do not agree the evidence supports the notion that during this conversation, there was such a complaint – whether expressly, or, as is asserted “implicitly”[144].
Complaint or inquiry number 5 is said to be the email Miss Duncan sent to Mr Trott, Mr Pek and Ms Goodhart on 8 January 2025, now described as a “formal complaint” but in the email subject line, described as “Summary of “Check-In – Tuesday 07/01/2025” (referencing the meeting held the day before). The email begins with the words “I wanted to summarise yesterday’s discussion in my own words to make sure I understand the discussions which took place to ensure we are all on the same page”[145]. In summary, the email:
a. Relates matters about “service desk tickets” under the hearing “continuing discussions”.
b. Records what Miss Duncan said in the meeting about Ms Narainsamy’s “behaviour when approaching tickets”, noting Miss Duncan was “confused why Amanda seems to be so motivated to always hold the majority of the service desk tickets …”.
c. Records Miss Duncan’s clarification as to the reason why tickets were so important to her, for reasons including her desire to learn new skills and gain experience.
d. Records a discussion in which Miss Duncan was apparently told Ms Narainsamy felt hesitant asking Miss Duncan for help on tickets, and that Miss Duncan conceded that she and Ms Narainsamy may have “gotten off on the wrong foot” and had sought the help of the managers present to fix and repair the relationship.
e. Records Miss Duncan’s suggestion that a “mutual understanding” could be established in the team that where if someone reaches out to the service desk about their ticket, the team members first check if its assigned and give that person a chance to fix or resolve the issue before proceeding to do this for them.
f. Records Miss Duncan’s response to a suggestion she may have appeared overwhelmed by some of the work, explaining that Miss Duncan has a retail background and an urgency that could have been mistaken for being stressed or overwhelmed.
g. Records that Miss Duncan was told that she may never be able to be provided with the amount of tickets she would like, but there are always things that need doing, and she could ask.
h. Confirms that Miss Duncan had disclosed her ASD diagnosis, some aspects of the condition and the discussion about some of the accommodations she had sought and been granted.
To characterises this email as a “complaint”, or as Miss Duncan puts it, “a deliberate and structured formal complaint, firmly rooted in grievance procedures, codes of conduct and workplace policies …”[146] is to significantly reimagine the communication and the conversation it records. The email records a workplace conversation seemingly focused on solutions, not the articulation of grievance for the purposes of lodging a complaint. There is no reference to any grievance procedure, code of conduct or workplace policy. It does not seek a particular redress or relief, probably, it seems to me, because all of the participants (including Miss Duncan) were engaged in a constructive and solution focused conversation (as is reflected in the various correspondence exchanged afterwards). This email does not constitute a complaint within the meaning of s 341(1)(c) of the Act.
Complaint or inquiry number 6 is characterised by Miss Duncan as an inquiry, not a complaint, and relates to an MS Teams with Mr Trott on 9 January 2025 regarding "locale issue" – namely, what Miss Duncan thought was an unusual time stamp on a note left by Ms Narainsamy that may have indicated she worked late, close to midnight. This is not an inquiry to which s 341(1)(c) relates. To some extent, it seeks information (such as whether Miss Duncan was reading the date correctly) but the nature of the inquiry does not relate to some source of employment entitlement (again, such as a particular role Miss Duncan had with respect to the subject matter in question).
On the basis of the foregoing, I do not consider that, based on the way in which she has articulated her case, Miss Duncan exercised a workplace right within the meaning of s 340(1)(a)(ii) of the Act, read in conjunction with s 341(1)(c).

Was adverse action taken?

In her written submissions, Miss Duncan characterises her “dismissal” as “discriminatory”[147] and “unlawful”[148]. Her application, in answer to the question “Does The Applicant allege that they were dismissed in contravention of the general protections provisions in part 3-1 of the Fair Work Act 2009?” Miss Duncan says “yes”.
In its Closing Submissions, IBAC argued that because Miss Duncan conceded under cross examination that she had breached IBAC policy, and that she “should have been disciplined for what she did”[149], that the case IBAC has been asked to meet is one in which the adverse action claimed by Miss Duncan to have occurred is not dismissal, but rather a “disproportionate response” to her conduct, being dismissal rather than discipline. It says:
“It is the fact that she was dismissed rather than issued with a formal warning (or subjected to some other disciplinary action lesser than a dismissal) that appears to be the adverse action about which the Applicant is aggrieved and which she asserts was taken for prohibited reasons (alleged complaints and inquiry and her Autism). That is, the “action” it is said that the Respondent took is that it decided on dismissal rather than some other lesser form of disciplinary action.”[150]
It says further that there is no evidence this form of adverse action – the decision on dismissal rather than something else – was taken because there is no evidence that an alternative to dismissal was considered and discarded[151].

Miss Duncan did not put her case this way. As I have noted above, it has been plainly evident that the adverse action Miss Duncan asserts was taken was the dismissal of her employment. There is no question that her employment was dismissed by IBAC.
In her “Reply to the Respondent’s Closing Submissions”, Miss Duncan takes issue with this line of argument as a “distortion” of her claim[152]. She then went on to make submissions that are extremely confusing, perhaps intended to take issue about whether or not IBAC considered an alternative to dismissal or not[153]. However, prior to these submissions, in the lead up to and during the hearing of the matter it was tolerably clear that Miss Duncan alleged the adverse action taken against her was dismissal, and not something else. IBAC has had no reasonable basis to apprehend it was facing anything other than this assertion.
The dismissal of an employee such as Miss Duncan, by an employer such as IBAC, is a circumstance in which a person has taken adverse action against another person for the purposes of s 342(1) (item 1) of the Act.
I consider that IBAC took adverse action against Miss Duncan by dismissing her. I do not consider IBAC took any other form of adverse action against Miss Duncan, and I do not consider that any other adverse action is alleged.

Did IBAC take adverse action against Miss Duncan because of a prohibited reason or reasons that included that reason?

As I do not consider Miss Duncan has established the exercise of a workplace right, it is not necessary for IBAC to rebut the presumption established by s 361(1) that the adverse action – her dismissal – was taken for that reason, or reasons which include that reason.
However, having established that she has a protected attribute, and that adverse action was taken against her, it may be necessary for IBAC to rebut that presumption in respect to Miss Duncan’s protected attribute – her physical or mental disability (as described by s 351 of the Act).
Generally, the authorities begin the consideration of this question with an inquiry into why, on the balance of probabilities, the employer took the adverse action against the employee[154]. Because of the operation of s 361(1), this requires an examination of the employer’s evidence who bears the onus of proving “that which lies peculiarly within their own knowledge”[155]. The determination is to be made from all of the facts and circumstances and inferences properly drawn from that evidence[156].
Where adverse action is taken purportedly as a result of a decision made by an individual, an inquiry must be made into the mental processes of the relevant individual[157].
Evidence from that individual simply denying their action was taken for a prohibited reason may not be enough[158].
The focus of the enquiry is on what the decision maker’s “substantial or operative” reason was for the adverse action[159], or even the “actual” reason[160] or actual motives[161]. An employer simply having regard to a matter does not make it the “actual reason” and factors or issues which may have contributed in only some causal way in the lead up to the adverse cation must be differentiated from the “actual reason” it was taken[162]. In this regard, it is wrong to require of an employer, pursuant to s 361, that they dissociate themselves completely from the protected attribute[163]. For example, in Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd[164], Perram J observed that a judge in giving reasons for their decision will have regard to the unsuccessful party’s submissions as an “important part” of arriving at their decision – but that does not mean those submissions are the substantial and operative reasons for that decision[165].
Where a decision is taken by a corporate entity, the answer as to what the substantial or operative, or “actual” reason for the decision may reside in the mind of more than one individual[166]. This is because the ultimate decision maker may be influenced to the requisite degree by others:
“Where a decision is made as the result of collaboration between different officers of an employer (rather than, for example, by a committee), the inquiry is directed at the mind of the ultimate decision-maker. If that ultimate decision-maker merely “rubber stamps” a decision in fact made by another, then the other person’s improper purpose will infect the ultimate decision[167].”
A person will have the requisite degree of influence over the decision when their involvement had a “material effect on the ultimate outcome”[168].
The task then becomes to determine who those people are[169], and inquire into what substantial or operative reason actuated the decision to take the adverse action, in terms of their contribution to it:
“Depending on the nature and degree of the involvement of the other individual (or individuals) in the decision-maker’s process in arriving at the decision, it may be necessary to assess whether each individual relevantly had a proscribed state of mind … that affected the reason or intention why the decision maker took the adverse action”[170].
For example, in the recent decision involving the former ABC journalist Ms Antoinette Lattouf, the Court found that a Mr Anderson made a “material contribution” to the decision taken by the relevant decision maker because he conveyed his opinion that Ms Lattouf held anti-Semitic views – an opinion that was then adopted by the decision maker[171]. An analogy can be drawn with respect to those who communicated information to the ultimate IBAC account Miss Duncan’s conduct.
As I observed above, Miss Duncan must prove the “factual circumstance” which she says was the reason for the taking of the adverse action. This will be the area of inquiry in respect to the decision maker, and the people who can be said to have made a material contribution to the decision. Having rejected, as I have, the proposition that Miss Duncan made “complaints or inquiries” within the meaning of 341(1)(c) of the Act, what is left is her submission, made plain in her Closing Submissions, that IBAC’s decision to terminate her employment was “inextricably linked to the characteristics arising from” her ASD[172]. Thus, the question is whether the decision maker, or any person who can be said to have made a material contribution to the decision to dismiss Miss Duncan, did so for the reason of her ASD, or its manifestations.

Who was the decision maker?

I consider the evidence demonstrates that Ms Byrne was the decision maker in respect to Miss Duncan’s termination of employment. Ms Byrne had the delegated authority to approve termination of IBAC contracts of employment, and thus authority to make the decision, and it appears the decision could not have been taken without her authority. She was asked to make the decision and made it. She signed the letter provided to Miss Duncan that confirmed the termination of her employment, for reasons set out therein (although she did not draft the letter).
However, on the evidence before me, it is plain that others had an influence, to some degree over Ms Byrne’s decision and indeed, to some extent, she “rubber stamped” a recommendation that Miss Duncan’s employment be terminated. As the authorities make clear, is it therefore appropriate to inquire as to whether any of the people involved had a material effect over Ms Byrne’s decision.
Ms Byrne made her decision at least in part on the briefing note, and the information recommendations contained therein. As I have explained above, the briefing note was drafted by Ms Baker, with input from at least Ms Goodhart (who endorsed it), contained findings and a recommendation formulated in conjunction with Mr Pek and was endorsed by Ms Whiter and Mr Faucett.
IBAC made submissions as to who was in the “decision making tent” and who was not but it’s submissions tend to conflate assertions as to people not having a material effect over the decision, with submissions that proscribed conduct did not form part of any involvement they may have had in it (particularly based on their state of mind or knowledge at the time)[173]. It concedes only that Ms Whiter was in the tent, other the other managers were not. It says Ms Baker did not contribute to the dismissal decision in any material way[174] despite conceding she drafted the briefing note, signed and endorsed it and “formed a clear view” that termination of employment was appropriate[175]. It submits that Mr Pek did not contribute to the dismissal decision in any material way because he did not have the authority to dismissed Miss Duncan[176]. It says Ms Goodhart was not an influencer or contributor to the decision despite having “endorsed the recommendation”, and the briefing note itself, because she was simply a provider of information on which a decision was to be made[177]. It says there is no evidentiary basis on which the Commission could make a finding that Mr Trott was either a decision-maker or a person who made a threshold level contribution to the decision to dismiss Miss Duncan[178]. It says that Mr Fausett had a very limited role in the matter (which was conceded by Miss Duncan)[179], and did not contributed to the ultimate decision made in any material way[180].
I do not accept some of IBAC’s submissions. On the evidence I have summarised above, Mr Pek and Ms Baker formed the view that Miss Duncan had breached IBAC policies, engaged in serious misconduct and her employment should be terminated. These matters were incorporated into the briefing note, which was ultimately used as the basis for Ms Byrne’s decision. Thus, Mr Pek and Ms Baker had a material effect on Ms Byrne’s decision, who may not have even made the decision had they not recommended it. Ms Whiter was also consulted by Mr Pek on 10 January 2025 about the matter and also formed a view as to the breach of policy and that termination should result and, had she not agreed, it is doubtful the recommendation would have been made. She had a material effect on the outcome (a conclusion that IBAC concedes). The evidence as to Ms Goodhart’s influence over the construction of the briefing note and its recommendation as to termination is less clear, although she plainly endorsed the Note. I accept Mr Faucett had little influence over the decision and while he endorsed the briefing note, I consider it open on the evidence to conclude that the decision would have been made whether he did or not.
I therefore consider that in addition to Ms Byrne, Ms Whiter, Ms Baker and Mr Pek had the requisite degree of influence on the decision to have had a material effect on the outcome.

What was the reason to terminate the employment?

In respect to her protected attribute, it seems to me that Miss Duncan’s hypothesis, put at its very highest, is that because “concerns regarding Miss Duncan’s interpersonal communication style”, a “combative communication style often using inflammatory language” and “team behaviours (including the unnecessary assessment of colleagues’ work)” are said to be manifestations of her ASD, and because they were mentioned in the briefing note, that the evidence shows these manifestations (and thus the attribute) was a substantive operative factor for those who materially influenced the decision to terminate her employment.
Significant problems arise in respect to this hypothesis. First, I cannot conclude, on the evidence before me, to the standard required, that Miss Duncan’s interpersonal communication style, a “combative communication style often using inflammatory language” and behaviours such as the “unnecessary assessment of colleagues’ work” are manifestations of her ASD. There is a significant deficiency in Miss Duncan’s evidence in this regard. None of her medical practitioners gave evidence in this proceeding to explain the extent to which I might be able to conclude such conduct is a manifestation of her ASD. This she explained was due to a lack of means to have her Doctor attend to give evidence. This is unfortunate, but I must determine the matter on the basis of the evidence before me. As I have explained above, at the most, the evidence shows that behaviour which exhibited challenges interpreting social cues and intentions, or displayed emotions manifesting in negativity, perfectionism or was argumentative or negative may be a manifestation of Miss Duncan’s ASD. Perhaps therefore the “unnecessary assessment of colleagues’ work” could be said to be a form of negativity or perfectionism. But on the evidence before me, I cannot be sure to any standard the degree to which this was so. It does not simply follow, by way of inference, as I suspect Miss Duncan would contend. It must be established as an evidentiary fact.
Accordingly, it may be that Miss Duncan has not established the evidentiary basis consistent with the hypothesis that IBAC was actuated by a proscribed reason (the protected action) in relation to the termination of her employment.
However (and secondly), even if it can be said that the matters in the “Background” section of the briefing note are manifestations of Miss Duncan’s ASD, in my view, IBAC has shown to the requisite standard of proof that these matters were not the substantial or operative factor for any of the relevant decision makers in their contribution to the decision to terminate her employment.
I consider that in respect to Ms Byrne, the reason for the decision to terminate Miss Duncan’s employment was that she considered it appropriate to adopt the findings and recommendations made by her managers, and considered that the finding that Miss Duncan had engaged in a breach of relevant IBAC policies and had thus engaged in serious misconduct to have warranted the adoption of the recommendation made that her employment be terminated. There is no evidence that behavioural issues, such as those I consider the evidence establishes are manifestations of ASD, played any role in Ms Byrne’s decision. Ms Byrne’s “actual motive” in making the decision was the adoption of the finding as to breach of policy and the recommendation as to termination of employment.
Similarly, I consider that in respect to Ms Whiter, the reason for her decision to endorse the recommendation made that Miss Duncan’s employment be terminated made by Ms Baker and Mr Pek and convey that recommendation to Ms Byrne was that she considered it appropriate to adopt the findings and recommendations provided to her and set out in the briefing note. I also consider that Ms Whiter made enquiries at least sufficient to satisfy herself that there appeared to be an appropriate basis for the findings. I also consider that Ms Whiter agreed that those findings justified the recommended outcome – the dismissal of Miss Duncan’s employment, because the findings showed a breach of policy. While I have doubt about whether the extent of those enquiries was as extensive as was described in her evidence, I do consider Ms Whiter to have considered Miss Duncan’s conduct, applied it to her own knowledge of the policy and drawn a conclusion (informed by the recommendations of Ms Baker and Mr Pek).
I consider that on the basis of the evidence before me, the state of mind of Mr Pek and Ms Baker is more complex than that of Ms Byrne and Ms Whiter.
The briefing note was originally drafted by Ms Baker and was not apparently subject to a great deal of edit thereafter. I consider this briefing note is an expression of the state of mind of Ms Baker, also informed by the other evidence before me.
Much was made in this matter of the “Background” section of the briefing note which contained comments about Miss Duncan’s communication style and behaviour. However, the briefing note’s focus is on what it describes as the “Incident” – the conduct of Miss Duncan on 9 January 2025 in relation to the access logs, and the breach of policy. It recommends termination of employment be approved “on the basis that a breach of Code of Conduct has occurred during probation”.
Ms Baker said in her evidence that she agreed with Mr Pek that the “incident” was “serious” and would likely require a recommendation of termination of employment during probation[181]. In this regard, her evidence – which was not impugned in cross examination – was that it was “the incident” that was the basis upon which she adopted this view.
Mr Pek said that said his conclusion that Miss Duncan’s actions constituted serious misconduct and that the most appropriate recommendation would be termination of employment was based on his determination that she had breached the Code of Conduct and the Information Security Policy[182]. This evidence was not impugned during cross examination.
Mr Pek said in re-examination that the comments in the briefing note about Miss Duncan’s “interpersonal communication style” were not a reason for dismissal in his mind[183]. He was also asked about its record of Miss Duncan’s repeated criticism of Ms Narainsamy’s work on 2 January 2025, and whether this was one of the reasons for dismissal. In answer, Mr Pek said “its contributed”[184].
This evidence is Miss Duncan’s case at its very highest – that is – that Mr Pek appeared to concede in his evidence that Miss Duncan’s conduct in repeatedly criticising Ms Narainsamy’s work “contributed” to his view (ultimately communicated to the decision maker) that her employment should be terminated.
However, I do not consider the evidence establishes that Miss Duncan’s criticism of Ms Narainsamy was a manifestation of her ASD. Even if it was, I do not consider that for Mr Pek, this was a substantial or operative factor in his view that Miss Duncan’s employment should be terminated. As I have said above, it is well established that where the same circumstance can give rise to more than one consideration in the mind of a decision maker, regard must be had to the decision-maker’s “actual motives”[185]. Mr Pek’s concession in re-examination, that this matter commented on in the briefing note “contributed” falls short of this standard.
I have also considered whether the breach of policy engaged in by Miss Duncan could itself be said to have been a manifestation of her ASD on the evidence before me. I conclude that it cannot. To some extent, this case has similarities to that before the Full Court of the Federal Court in Grant, where Tracey and Buchannan JJ saw fit to observe that in that case, “the medical evidence did not expressly or impliedly link the misconduct and the illness”[186]. On the evidence before me, I cannot conclude that Miss Duncan accessed Ms Narainsamy’s sign in logs because she is neurodivergent. She did so out of a sense of grievance about a workplace situation she was unhappy with and overstepped the boundary of proper conduct in the position she held.
For completeness, I note that the decision to terminate Miss Duncan’s employment, made for the substantive reason that her actions breached IBAC policies, was informed by a view that she had done so “knowingly”. The briefing note said, “she was aware that her conduct was improper as shown by her asking the other staff member to keep it between them”. Ms Baker in her evidence said that the transcript of the conversation between Miss Duncan and Mr De Luca showed she “was aware that her actions were inconsistent” with the relevant policies[187]. Ms Whiter referred to Miss Duncan’s statement “to conceal that information”[188]. Ms Bryne’s evidence was that Miss Duncan “was aware that her conduct as improper as shown by her asking the other staff member to keep it between themselves”[189]. Mr Pek referred to this comment in his oral evidence[190].
The comment being referred to in this evidence is made in the Microsoft Teams exchange between Miss Duncan and Mr De Luca on 9 January 2025. The comment, placed in context, is as follows. The exchange began with Miss Duncan asking Mr De Luca whether there was any way she could see changes made to a user account, to which Mr De Luca said, “short answer no, long answer yes you can filter the event log on a DC, which you guys don’t have access to”. Miss Duncan said in response “hmmm okay then, I’ll have to let it go”. The exchange continues in which Miss Duncan explains the reason for her question was that she believed Ms Narainsamy had been working “around midnight last night” and she wanted to “confirm her suspicions”. The following exchange then occurred:
Mr De Luca:“probably best to let it go, if Michael ahs an issue he’d ask me to pull logs”
Miss Duncan: “Okay sure, just keep this between us, but yes I’ll let it go”

Unfortunately for Miss Duncan, the exchange continued, because Mr De Luca then said that “you do have access to user sign in logs”. At that point, Miss Duncan accessed those logs, and further discussion occurred as is related above, in which Miss Duncan forms the view she is “right”, and then she and Mr De Luca discuss how to inform Mr Trott.
Accordingly, the comment “just keep this between us” was made before Miss Duncan accessed the sign in logs, and breached policy, and before this idea was even conceived of. It did not relate to the access Miss Duncan made to the sign in logs, nor was it an attempt to conceal that conduct, nor did she ask Mr De Luca to not reveal she had accessed the sign in logs.
I consider it likely that this comment was seized upon by the IBAC managers and given emphasis in their assessment as to the gravity of Miss Duncan’s apparent breach of policy and misconduct. I detected a righteousness about some of the references to this comment by the IBAC managers – as if it amounted to the proverbial smoking gun – damning Miss Duncan, a person who presents as an honest and forthright person, to the character of a conniver. I consider that the assumptions IBAC leapt upon in relation to this comment to be most unfair. It did not relate to the “incident” or the breach of policy. While the comment could be read as conspiratorial, it could just as easily be read as an effort to reduce workplace tension and gossip or avoid further antagonising her manager. Based on my impression of Miss Duncan, I consider people who worked with her and knew her might have more appropriately given her the benefit of the doubt.
However, my inquiry is not one devoted to determining whether Miss Duncan has been subjected to a procedurally or substantively unfair outcome and I have considered it appropriate to set out in some detail above why this is so. The IBAC managers’ state of mind was that Miss Duncan had engaged in misconduct, had breached a policy and had done so dishonestly. Whether right or wrong, fair or unfair, these were the substantive operative factors in their decision to terminate her employment.
I have concluded that by dismissing Miss Duncan, IBAC did not take adverse action against her because she exercised a workplace right or because she has a protected attribute. The application must be dismissed. An Order[191] to that effect will be issued conjointly.

COMMISSIONER

Appearances:

Miss Erica Duncan and support person for the Applicant
Ms Catherine Pase of Counsel for the Respondent

Hearing details:

2025
Melbourne
June 3, 4

Final written submissions:

16 June for the Applicant
23 June for the Respondent
25 June for Applicant’s reply

[1] Ms Granville was the subject of an Order made pursuant to s 590 of the Act that she attend the Commission and give evidence. IBAC filed and served a witness statement for Ms Granville following the making of this Order.

[2] Fair Work Act 2009 s 578(a)

[3] Fair Work Act 2009 s 3

[4] Fair Work Act 2009 s 578(c)

[5] John Holland Pty Ltd T/A John Holland Aviation Services Pty Ltd v Mr Ronaldo Salazar[2014] FWCFB 7813 [24] – [25]

[6] Exhibit A11

[7] Exhibit A12

[8] As is described further below, Miss Duncan attributed these traits to herself in a conversation with Mr Orhan Pek on 7 January 2025: Witness Statement of Orhan Pek, 13 May 2025, Attachment A

[9] Witness Statement of Jane Whiter, 26 May 2025, Attachment A (in which the IBAC Information Security Policy is attached, p.2)

[10] Statement of Evidence of Erika Duncan Regarding General Protections Involving Dismissal, 22 April 2025, p.1 – 2; Witness Statement of Michael Trott, 13 May 2024 [8]- [9]

[11] Statement of Evidence of Erika Duncan Regarding General Protections Involving Dismissal, p.2

[12] Ibid

[13] Ibid; Outline of Argument (Applicant), 22 April 2025, p.2

[14] Ibid

[15] Ibid

[16] Transcript PN775

[17] Witness Statement of Michael Trott [11]; Transcript PN1784

[18] Witness Statement of Michael Trott Attachment B

[19] Transcript PN1857;

[20] Witness Statement of Sarah Goodhart, 16 May 2025 Attachment A

[21] Ibid [7]

[22] Witness Statement of Michael Trott [12]

[23] Transcript PN1862, PN1864

[24] Statement of Evidence of Erika Duncan Regarding General Protections Involving Dismissal, p.2; Witness Statement of Sarah Goodhart [9]

[25] Witness Statement of Sarah Goodhart [9]

[26] Statement of Evidence of Erika Duncan Regarding General Protections Involving Dismissal, p.2; Transcript PN1608

[27] Outline of Argument (Applicant), 22 April 2025, p.2

[28] Witness Statement of Sarah Goodhart, Attachment 2

[29] Ibid [10]

[30] Witness Statement of Orhan Pek, Attachment A

[31] Statement of Evidence of Erika Duncan Regarding General Protections Involving Dismissal, p.2; Witness Statement of Orhan Pek, 13 May 2025 [5]

[32] Witness Statement of Orhan Pek [5(b)]; Transcript PN2180

[33] Witness Statement of Orhan Pek [5(f)]

[34] Transcript PN2171; PN2172; 2175;

[35] Statement of Evidence of Erika Duncan Regarding General Protections Involving Dismissal, p.2; Witness Statement of Orhan Pek [5]

[36] Witness Statement of Orhan Pek, Attachment B

[37] Statement of Evidence of Erika Duncan Regarding General Protections Involving Dismissal, “Exhibit H”

[38] Witness Statement of Michael Trott [14]; Witness Statement of Orhan Pek [7]; Witness Statement of Sarah Goodhart [11]; Transcript PN2218

[39] Witness Statement of Orhan Pek [7], Attachment 2; Transcript PN2217

[40] Witness Statement of Sarah Goodhart [11]

[41] Transcript PN1555 – 1556; PN1572

[42] Witness Statement of Orhan Pek [9], Attachment C

[43] Witness Statement of Orhan Pek, Attachment C

[44] Ibid [10]

[45] Witness Statement of Michael Trott [16] , [18]; Witness Statement of Orhan Pek [8], [14]; Witness Statement of Sarah Goodhart [12]

[46] Exhibit A20

[47] Outline of Argument (Applicant), p.3

[48] Witness Statement of Michael Trott, Attachment D

[49] Witness Statement from Anthony De Luca [19]

[50] Witness Statement of Michael Trott, Attachment E

[51] Witness Statement of Sarah Goodhart [14]

[52] Witness Statement of Orhan Pek [15(d)]

[53] Ibid [15(e)]

[54] Witness Statement of Nicole Baker, 13 May 2025 [15]

[55] Ibid [14], [16]

[56] Witness Statement of Sarah Goodhart [14]

[57] Transcript PN2483

[58] Transcript PN1008 - PN1009, PN1052

[59] Witness Statement of Orhan Pek [15(f)]

[60] Ibid [15(g)]

[61] Transcript PN2583

[62] Witness Statement of Alison Byrne, 13 May 2025 [5]

[63] Witness Statement of Orhan Pek [15(h)]; Witness Statement of Nicole Baker [17]

[64] Witness Statement of Nicole Baker [17]

[65] Ibid [20]

[66] Exhibit R11

[67] Applicant’s Closing Argument Submissions, 15 June 2025, II(1), IV(1),

[68] Witness Statement of Orhan Pek [15(g)]

[69] Transcript PN2474

[70] Transcript PN1383

[71] Transcript PN1384

[72] Transcript PN1387

[73] Witness Statement of Sarah Goodhart [16], Transcript PN1686

[74] Transcript PN2487

[75] Transcript PN1829 – 1831; PN1856

[76] Transcript PN2092 – PN2096

[77] Witness Statement of Jane Whiter [6]

[78] Ibid [7]

[79] Ibid [7] - [9]

[80] Ibid [10]

[81] Witness Statement of Jane Whiter [11]

[82] Ibid [15]

[83] Witness Statement of Alison Byrne [8]

[84] Ibid [9]

[85] Witness Statement of Nicole Baker [21]

[86] Witness Statement of Alison Byrne [11]

[87] Witness Statement of Nicole Baker [26]

[88] Ibid [27]

[89] Witness Statement of Alison Byrne, Attachment C

[90] Witness Statement of Alison Byrne [11]

[91] Ibid [3]

[92] Witness Statement of Jane Whiter [13]

[93] Witness Statement of Nicole Baker [15]

[94] Ibid [21]

[95] Witness Statement of Orhan Pek [15(e)]

[96] Ibid [15(g)]

[97] Transcript PN2465, PN2496

[98] Transcript PN2469

[99] Transcript PN2480, PN2500

[100] Transcript PN2522

[101] Witness Statement of Sarah Goodhart [16]

[102] Witness Statement of Nicholas Fausett [14]

[103] Respondent’s Closing Submissions, Annexure A, p.5

[104] General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 [616]; Board of Bendigo Regional Institute and Further Education v Barclay (2012) 249 CLR 500 [59], [104] (Barclay); Qantas Airways Ltd v Transport Workers Union of Australia (2023) 278 CLR 571; [2023] HCA 27 [41] (Qantas v TWU); Neil Keep v Performance Automobiles Pty Ltd[2014] FWCFB 8941 [9]

[105] Kerry Cecilia Soorley v The Trustee For The Gunnebah Operating Trust[2024] FWC 2754 [26] (Soorley)

[106] Lattouf v Australian Broadcasting Corporation (No 2) [2025] FCA 669 [93] (Lattouf); Australian Red Cross Society v Queensland Nurses Union of Employees [2019] FCAFC 215 [66] (Red Cross Society); Tattsbet Ltd v Morrow (2015) 233 FCR 46 [119]; Celand v Skycity Adelaide Pty Ltd (2017) 274 IR 420 [154]

[107] Lattouf [93]; Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347 [15]

[108] [2014] FWCFB 8941 [14]

[109] Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 [48]

[110] Wong v National Australia Bank Ltd [2022] FCAFC 155 [93]

[111] [2015] FCA 17

[112] [2022] FCAFC 155 [93]

[113] [2021] FCA 671

[114] See for example the approach taken in Shizas v Cmr of Police (on behalf of the Commonwealth) [2019] FCAFC 181 [81] – [82] (Shizas)

[115] Hodkinson v Commonwealth (Department of Human Services) (2011) 248 FLR 409 [146]

[116] Shizas [119]; Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181 [60] (Western Union)

[117] Western Union [137]

[118] Respondent’s Closing Submissions [46]

[119] Ibid [50]

[120] Applicant’s Reply to Respondent’s Closing Submissions pp. 4 - 5

[121] As is described above Miss Duncan attributed these traits to herself in a conversation with Mr Orhan Pek on 7 January 2025: Witness Statement of Orhan Pek, 13 May 2025, Attachment A

[122] Closing Argument Submissions (Applicant), 15 June 2025, Part III, 1

[123] Respondent’s Closing Submissions [72] – [73]

[124] Ibid

[125] Ibid [75] – [76]

[126] Ibid [79]

[127] Stefanovski v Digital Central Australia (Assets) Pty Ltd [2018] FCAFC 31 [65]

[128] Re-JRL; Ex parte CJL (1986) 161 CLR 342 [350] per Mason J

[129] Alam v National Australia Bank Limited [2021] FCAFC 178 [65] (Alam)

[130] Ibid [59]

[131] Maric v Ericsson Australia Pty Ltd 293 IR 442 [45]

[132] Alam [60]

[133] [2022] FCA 677 at [150]

[134] [2019] FCAFC 16

[135] [2021] FCAFC 178

[136] Ibid [75], [97]

[137] Soorley[2024] FWC 2754 [35] – [36]

[138] Whelan; Alam [95]

[139] Closing Argument Submissions (Applicant), 15 June 2025, p.3

[140] Ibid

[141] Ibid p.4

[142] Closing Argument Submissions (Applicant), 15 June 2025, p.3 - 4

[143] Respondent’s Closing Submissions [91]

[144] Closing Argument Submissions (Applicant), 15 June 2025, p.4

[145] Exhibit A7

[146] Closing Argument Submissions (Applicant), 15 June 2025, p.4

[147] Applicant’s Outline of Argument, p.1

[148] Closing Argument Submissions (Applicant), 15 June 2025, p.1

[149] Transcript PN1010

[150] Respondent’s Closing Submissions [30] – [36]

[151] Ibid [33]

[152] Applicant’s Reply to Respondent’s Closing Submissions, 25 June 2025, p.1

[153] Ibid pp 2 - 3

[154] Barclay [5], [44], [101]; Western Union [115]; State of Victoria (Office of Public Prosecution) v Grant [2014] FCAFC 184; (2014) 246 IR 441 [32] (Grant); Han v St Basil’s Homes [2023] FCA 1010; (2023) 325 IR 190 [16] (St Basil)

[155] General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235 [241]; Barlcay [50]

[156] Western Union [117]; Grant [32]

[157] Barclay [140]; CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243 [7], [85]; Western Union [116]

[158] Barclay [54]

[159] General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 [616]; Barclay [59], [104]; Qantas v TWU [41]; Neil Keep v Performance Automobiles Pty Ltd[2014] FWCFB 8941 [9]; Lattouf [91]

[160] Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; (2015) 250 IR 422 [32]; Qantas v TWU [104]

[161] Shizas [124]

[162] Qantas v TWU [104]

[163] Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 23 CLR 243; [2014] HCA 41 [14]; Barclay [62]

[164] [2015] FCAFC 76; (2015) 250 IR 422

[165] See Rumble v The Partnership (T/AS HWL Ebsworth Lawyers) [2020] FCAFC 37; (2020) 294 IR 337 [39]; Qantas v TWU [104]; Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; (2015) 250 IR 422 [91]

[166] Wong v National Australia Bank Ltd [2022] FCAFC 155 [26]; National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 [26] (NTEU)

[167] Shizas v Cmr of Police (on behalf of the Commonwealth) [2017] FCA 61 [99]; see also Han v St Basil’s Homes [2023] FCA 1010 [20]

[168] Lattouf [133]; Australian Red Cross Society [90]

[169] NTEU [26]; Shizas [99]

[170] Han v St Basil’s Homes [2023] FCA 1010 [20] [23]

[171] Lattouf [488]

[172] Applicant’s Closing Submissions p.5 (1)

[173] Respondent’s Closing Submissions [129] – [200]

[174] Respondent’s Closing Submissions [151]

[175] Ibid [152]

[176] Ibid [165]

[177] Ibid [178]

[178] Ibid [185]

[179] Ibid [193]

[180] Ibid [200]

[181] Witness Statement of Nicole Baker [15]

[182] Witness Statement of Orhan Pek [15(c)]

[183] Transcript PN2509

[184] Transcript PN2522

[185] Shizas [124]

[186] Grant [58]

[187] Witness Statement of Nicole Baker [12]

[188] Witness Statement of Jane Whiter [10]

[189] Witness Statement of Alison Byrne [11]

[190] Transcript PN2498

[191] PR788379

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