Mr Gerald Donn v Department of Transport and Planning - [2025] FWC 2186

[2025] FWC 2186

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Gerald Donn
v

Department of Transport and Planning

(U2025/5060)

COMMISSIONER REDFORD

MELBOURNE, 8 OCTOBER 2025

Application for an unfair dismissal remedy; valid reason related to performance; dismissal was procedurally fair; dismissal not harsh, unjust or unreasonable, application dismissed

On 24 April 2025, Mr Gerald Donn (Mr Donn) filed an application pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act) seeking a remedy in relation to unfair dismissal with respect to his former employer, Department of Transport and Planning (DTP).
The application was the subject of a hearing conducted in the Commission at Melbourne on 15 July 2025 and 28 – 30 July 2025. Mr Donn advocated for himself at the hearing. DTP was granted permission to be represented by a lawyer pursuant to s 596(2)(a) of the Act, and Ms Francis Anderson of the Victorian Government Solicitor's Office appeared for DTP.
The materials filed by the parties are voluminous. In its final submissions, DTP said that the volume of material filed by Mr Donn has at times made it difficult to comprehend his case, and that much of what he has submitted has been unduly and incomprehensively lengthy and is irrelevant[1].
While Mr Donn deserves some consideration both in terms of being self-represented in this matter and also being in the position where he is advocating for the survival of his employment, there was merit in DTP’s submission as to how the case was presented. Mr Donn filed a 45 page Outline of Argument, a 27 page witness statement, a 32 page reply statement and over 900 pages of documentary material which included five drafts of the same document each of which varied between 70 and 86 pages.
Notwithstanding that the material before me was presented in a manner that made it difficult to digest, I have had regard to all of it, even where not specifically referred to in these reasons. What follows is a summary only of the evidence based on my findings in relation to it.

Ordering a remedy in relation to unfair dismissal.

Section 390 of the Act provides that the Commission may order remedy if:

a.the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
b.the person has been unfairly dismissed.

Section 396 of the Act requires that the Commission decide several matters relating to an application for an unfair dismissal remedy before considering the merits of the application. Those matters are:

a.whether the application was made within the period required in s 394(2) of the Act;
b.whether the person was protected from unfair dismissal;
c.whether the dismissal was consistent with the Small Business Fair Dismissal Code;
d.whether the dismissal was a case of genuine redundancy.

Mr Donn’s application was made within the period required in s 394(2) of the Act, based on the date upon which his dismissal took effect. There is no suggestion before me the dismissal was a case of genuine redundancy, and DTP is not a small business within the meaning of s 23 of the Act.
Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

a.the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
b.one or more of the following apply:
i.a modern award covers the person;

ii.an enterprise agreement applies to the person in relation to the employment;
iii.the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

At the time of his dismissal, Mr Donn had completed the minimum employment period and his annual rate of earnings was less than the high income threshold. I find that Mr Donn was a person protected by unfair dismissal at the time he was dismissed.

Background to the dismissal

Mr Donn’s employment was terminated after a lengthy performance management process involving four performance improvement plans extending from May 2024 into 2025. He was also provided with a process allowing him to respond to the proposition that his employment be terminated, which occurred in early 2025 (described as a “show cause process”). Mr Donn claims that the initiation of the performance management procedure was unjustified and thus appears to argue that the entire process was tainted. He also claims that his performance was assessed against unrealistic or inappropriate measures. He also claims that his responses were not properly considered. Mr Donn rejects the proposition that his work was sub-standard and that he did not demonstrate capacity to perform the job. He also claims that he was not given adequate resources, direction or training to succeed. Conversely, DTP submits the termination of Mr Donn’s employment was fair because it identified significant problems in his capacity to perform his job which did not improve to the requisite level after an extensive performance management process, and further claims that the manner in which it terminated Mr Donn’s employment was procedurally fair.

The DCM project

Mr Donn commenced working for the Department of Environment, Land, Water and Planning (DELWP) on 17 November 2020. He was initially employed to work in the Digital Cadastre Modernisation Project (DCM) as a Senior Cadastral Surveyor.
The DCM Project’s objective is to digitally map and improve the cadastral boundaries for the entire State of Victoria. The project was to continue for 3 years and be completed in the middle of 2023. Ongoing work is required to maintain the database, managed by a small team, and it is now referred to as Digital Cadastre Production (DCP). The initial project was largely complete by July 2023 save for some backlog work being undertaken by the offshore provider engaged on the project, who is based in India.
It is evident that Mr Donn has an interest in and commitment to the DCM project and is considered a subject matter expert in some of its aspects. During the project he led the group that responded to the technical questions emanating from the offshore provider[2].

Mr Donn’s employment with LRP

However, when the DCM project ceased in its then form at the end of June 2023, Mr Donn’s role in it also ceased and he applied for and obtained a role with Land Reform Projects (LRP) as a senior surveyor. He commenced in this role at the beginning of July 2023.
LRP is an area within what is now known as the Department of Transport and Planning, a department of the Victorian Government. Mr Donn was one of four senior surveyors in the LRP area. His role required surveying and property knowledge and the exercise of project management and stakeholder engagement skills. He and another senior surveyor were allocated to the Central West Parks Investigation Team and were responsible to lead the work and the technical staff associated with a project involving the creation of new national parks in central-west Victoria. Some of the accountabilities associated with the role were described as undertaking high level research on complex cadastral boundaries, land tenure and land status matters, providing strategic advice on defining cadastral boundaries and working with project partners in relation to land delivery programs. Some of the work involves providing support to project partners such as areas of Government or other agencies. Some of the work supports legislation to be considered by the Victorian Parliament concerning land boundaries.

Frustration associated with Mr Donn’s continued engagement with the DCM project

DTP believes that Mr Donn would have preferred to continue to work on the DCM project, and that the role he took on with LRP was not his preference. The evidence supports the conclusion that Mr Donn would have preferred to continue working on the DCM project and that he took the job with LRP particularly so he could maintain visibility over other opportunities more in line with his preferred work[3].
Mr Donn’s manager at LRP was Mr Feri Laylavi, who is the Manager of LRP. Throughout the second half of 2023 Mr Laylavi became frustrated with Mr Donn’s work performance and is of the view that Mr Donn continued to engage in work associated with that which he had been performing on the DCM project, to the detriment of the work he was required to perform in his role with LRP. To some extent, Mr Laylavi considered the work Mr Donn was engaging in relating to the DCM project was unauthorised and was taking his focus and time off his other duties.
After commencing in his role as a senior surveyor within LRP, Mr Donn did continue to engage in work associated with the DCM project. For example, Mr Donn continued to participate in technical forums relating to the DCM project / DCP and undertook several reviews in relation to some aspects of the work[4]. To some extent, Mr Donn engaged in this work because he was asked to by other people within the Department, including those more senior to him (and indeed, senior to Mr Laylavi).
Mr Donn could not have been oblivious to the fact that his engagement in work associated with the DCM project was causing his manager, Mr Laylavi, some level of frustration, in so far as Mr Laylavi was communicating to Mr Donn his concern as to his performance in relation to his work for LRP. However, I do consider that for some period of time, Mr Donn’s continued engagement in this work was justified, to some extent. A meeting was held on 13 October 2023 in which Mr Donn believes Mr Cichocki, the Deputy Surveyor-General agreed to a “verbal amendment” of his position description to incorporate some level of responsibility for work associated with the DCM project. While Mr Laylavi (who was also in the meeting) appeared to dispute this, he does concede that during the meeting it was discussed that Mr Donn could spend up to twenty per-cent of his time on this kind of work[5], after this having been previously an undefined, or “as needed” proportion of his time[6].
On 19 December 2023, Mr Laylavi advised Mr Donn in writing that his involvement in matters outside of his primary responsibilities – referred to specifically as DCP matters - had been taking precedence over his core tasks and that he had yet to complete a number of his tasks associated with his LRP responsibilities. He was told that upon his return from Christmas leave, if he considered that any matters outside his primary responsibilities required attention during working hours, he must seek prior approval to engage in that work from Mr Laylavi[7].

Performance issues in the second half of 2023

According to his evidence, Mr Laylavi’s concerns about Mr Donn’s performance began as early as a month after Mr Donn started in his role[8]. Mr Laylavi said that throughout the second half of 2023 he began to form concerns about Mr Donn’s performance – specifically in relation to his failure to make progress on tasks assigned to him[9]. One example were tasks allocated to Mr Donn involving survey assessments and identifying issues within the Wombat-Lerderberg National Park which Mr Laylavi claimed should have been completed within four weeks. However, Mr Laylavi said that as the months during the second half of 2023 passed by, Mr Donn did not complete this work[10].
Mr Donn’s response to the proposition that he did not complete this work in a timely manner, or at all, varies. He appears to claim that he was working toward the completion of this task and was involved in other tasks in the meantime. He also appears to claim to some extent he was receiving conflicting instructions from other colleagues about his work. Mr Donn also claims, generally, in response to criticism that he did not complete work assigned to him in a timely fashion, that he was not familiar with relevant procedures, software, and the resources available to him in this regard were lacking.
After having consulted with the People and Culture Team about his concerns about Mr Donn’s performance, on 14 November 2023 Mr Laylavi told Mr Donn he would place him on an informal performance improvement plan. Shortly afterwards, Mr Donn reported the sudden death of his father-in-law. Mr Laylavi decided on this basis not to implement the informal performance improvement plan and instead allocated Mr Donn a new task relating to the Mount Buangor National Park. However, by the end of December 2023 Mr Laylavi considered Mr Donn had again failed to make sufficient progress on this task. Mr Donn claims he was re-assigned before he could complete any milestones on this particular project[11].

Continued performance issues in the first months of 2024

In early 2024 Mr Laylavi, in conjunction with Mr Mason, another senior surveyor, provided Mr Donn with a spreadsheet tool designed to assist him to break tasks into smaller, more easily digestible parts, to assist him was task completion and meeting deadlines. Mr Laylavi was of the view that this was somewhat unprecedented for a person at Mr Donn’s level of seniority, but a support he provided arising from his frustration with the manner in which Mr Donn was engaging with his work[12]. Mr Donn said he did not find the spreadsheet helpful[13]. In mid-March Mr Laylavi asked Mr Donn to transfer some of his work to Mr Mason, where it was discovered that the work was “unfinished and scattered”, requiring it to be redone[14]. Mr Laylavi assigned Mr Donn work on a different area – the Wheatsheaf North precinct. Mr Donn did not complete the relevant tasks assigned by the deadline set, and the deadline was extended, but was still not met[15].
In relation to this matter, on 24 April 2024 Mr Laylavi sent Mr Donn an email which said[16]:
“After our discussion yesterday, it is evident that the completion of the Wheatsheaf North Precinct assignment is not imminent. Before updating the spreadsheet and working on the CAD file, we need to finalise the assessments of the parcels. This means that completing the initial task alone will take a significant amount of time, leading to delays in other tasks and project priorities. Regarding bullet points 2 and 3, in your email sent on 17 April, you mentioned you plan to complete the assessments and provide wording for the Discussion Points in the Wheatsheaf North precinct by 22 April. However, your update during yesterday's CWI group meeting revealed that there has been no progress made on those bullet points.”
Mr Laylavi said he was not giving Mr Donn another deadline for completion of the Wheatsheaf North work because it was challenging to set another deadline when he thought it was unrealistic it would be met. His email also said[17]:
“It is disappointing to note that after 10 months of employment, there has been a consistent lack of meaningful outcomes and contributions from your end. Your lack of performance is not sustainable, and we need to see immediate improvements as we cannot continue to operate in this manner.”

Informal performance management process

Mr Laylavi said that on 15 May 2024 he discovered Mr Donn had attended another “external meeting”, which, according to Mr Donn, was a meeting regarding the continuation of the DCM project. He sent an email to Mr Donn that day expressing his frustration that this had occurred, when a “very urgent and unfinished task” was pending. On 20 May 2024, Mr Laylavi sent Mr Donn an email which recorded meeting notes from discussion that had occurred that day with Mr Donn, in which Mr Laylavi conveyed to Mr Donn that a four week informal performance management plan would be implemented requiring the completion of several performance expectations, as outlined, including the completion of the outstanding tasks on the Wheatsheaf North project, as well as other work. The email also said this was a “final attempt at lifting Mr Donn’s performance”, before moving to a formal unsatisfactory work performance process[18].
Mr Laylavi said that during the ensuing four weeks, he considered Mr Donn had demonstrated improvement in mindset, demonstrated particularly by his increased in engagement with the LRP team. He advised Mr Donn that his work still “currently falls below the anticipated standard for someone in your role”, but that he had decided not to proceed to a formal counselling process but instead extend the informal plan by a further four weeks[19].
On 1 August 2024, Mr Laylavi met with Mr Donn and on 2 August 2024 recorded his account of that meeting in an email sent to Mr Donn. The email said that Mr Laylavi had decided that it was necessary to progress to the next phase of the performance management process because Mr Donn had not been able to complete the work assigned to him during the period, and his work was sub-standard[20].

Performance Improvement Plan Number 1

On 22 August 2024, a letter was sent to Mr Donn by Mr Craig Sandy, the Surveyor General of Victoria, which advised that his work was below the expected standards and unsatisfactory. Various examples were provided in the letter, and it stated that the Department was proposing to manage the matter under the “VPS Enterprise Agreement Common Policies Management of Unsatisfactory Work Performance”. It said that Mr Donn was entitled to respond to the proposition that his work performance was unsatisfactory and could do so in writing and / or in a meeting that had been scheduled with Mr Laylavi and a People and Culture advisor several days later. It said that Mr Donn’s response would be considered in order to determine whether a first stage formal counselling process should commence.
A meeting was held on 28 August 2024 involving Mr Donn, Mr Laylavi and Ms Hogan from the People and Culture area. A file note was kept of this meeting. The file note records that in the meeting, Mr Laylavi outlined his concerns about Mr Donn’s work performance and Mr Donn provided some responses. Among other things, Mr Donn complained that he had been assigned different tasks by different people, not told what “poor quality work is” and was assigned new tasks before being able to provide a finished product[21].
Mr Donn provided a written response to the matters that had been put to him in the letter from Mr Sandy of 22 August 2024 and during the meeting held on 28 August 2024[22]. The letter runs for eighteen pages. Some of the key matters raised in the letter, by way of summary, are:

a.That Mr Donn’s failure to complete assigned tasks was typically due to being repeatedly reassigned to alternative tasks before the current task had been completed and being given conflicting instructions.
b.Any such failures were also due to a lack of formal or documented process or procedure to execute the assigned tasks, and Mr Donn has not had prior exposure to relevant process, systems, software and platforms
c.A distinction should be made between the quality of work delivered and compromises made in order to expedite delivery, which includes which tasks are undertaken or postponed and which tasks are completed to a lesser extent “though still considered fit for purpose”.
d.Some of the critiques on specific pieces of work were arbitrary, relating to work requiring Mr Donn to exercise discretion which he did so within reasonable parameters.
e.In various areas of the letter Mr Donn took issue with what he describes as the subjective or “provocative” nature of the critique delivered against him.
f.Mr Donn outlined a list of the work he had completed in relation to various precincts.
g.He letter asserts that Mr Donn had been subjected to “negative and harmful behaviours” by Mr Laylavi which amounted to bullying behaviours

Mr Donn repeated some of these matters under cross examination. In doing so, he also said he accepted to some extent the critiques that had been made in regard to his work performance. In answer to the question “you thought you were still – you were doing a good job”, Mr Donn said “not necessarily”[23].

On 5 September 2024, Mr Donn was sent another letter from Mr Sandy in which he was advised that a decision had been made to commence the First Stage – Formal Counselling Process against specified performance standards and measures. The letter addressed a number of the matters Mr Donn had raised in response to the proposition that this process occur. Mr Donn is of the view that the letter shows his responses had been given only cursory consideration[24].
On 9 September 2024, Mr Laylavi sent Mr Donn the written version of the performance improvement plan (PIP 1). PIP 1 was to run from 9 September 2024 to 18 October 2024, during which time Mr Donn was expected to complete 2 tasks, one being a cadastral survey, and the other, to undertake computations, checking and assessments in relation to a particular location. In each case specific outcomes were identified against set deadlines.
Mr Donn was provided with additional time to undertake PIP 1 because during the period he contracted COVID-19 and also, his father passed away. He returned to New Zealand as a result and also had time off work due to his illness.
On 24 October 2024, Mr Laylavi wrote to Mr Donn and advised that he had not succeeded in the performance improvement process. The letter recorded that some tasks were not completed within the deadlines set, and some of the tasks, including a number of the specific reports required, were not completed at all. In relation to the “technical deliverables” required it says:
a.   In relation to the provision of a pegging file and pegging worksheet, the item was delivered five days late with significant quality issues, and was inefficient for use by the Department’s survey technicians or on its surveying equipment
b.   In relation to the provision of a licensed surveyor’s report, the item was not supplied
c.   In relation to an abstract of field records, the item was not supplied
d.   In relation to a digital AutoCAD file of boundary adoptions suitable for master CAD file, the item was not supplied
e.   Several other items were not supplied, including worksheets
f.    Some items were supplied, including some photo’s, scanned field cards, some computation notes, some “Liscad files” and an AutoCAD file
Mr Donn concedes that he did not complete PIP 1[25]. He provided a written response to the assessment he received. He claimed in his written response that the tasks he was required to complete in respect to PIP 1 were not tasks that he had been previously required to undertake in his role with LRP. He conceded, in cross examination, that he was required, as a senior surveyor, to check work performed by other people on tasks such as these but was not required to perform them himself. He said he had undertaken tasks like these in previous roles and in other companies, but using different software[26]. In this regard, Mr Donn placed reliance on the proposition that he had not been provided with clarity about the expectations of his superiors in LRP as to the way these tasks should be done. He said he had not been provided with training, including in relation to the specific software, or given access to resources such as guidelines in relation to these kinds of tasks. He said this was the case, despite at this stage having been in his role for 12 months. He also said under cross examination that the interrelated nature of some of the tasks impacted on his ability to complete them, again taking into account the unfamiliarity he said he had with these tasks at DTP, including the software being used[27].

Formal written warning

On 30 October 2024, Mr Laylavi sent an email to Mr Donn in which he advised that the Department intended to commence the second stage in the formal performance management process and also attached a letter from Mr Sandy. The letter also said that the Department was proposing to continue the formal unsatisfactory work performance process. The second stage, if it were to be implemented, was to involve the provision of a formal written warning and a further performance improvement plan. Mr Donn’s response to this proposition was invited, which could be provided in writing and in a meeting to occur in the coming days[28].
On 6 November 2024, a meeting occurred between Mr Laylavi, Mr Donn and Ms Hogan in which the proposition that a formal written warning would be issued to Mr Donn was discussed with him for the purposes of providing him with a chance to respond. During the meeting, Mr Donn said he was still in the process of writing his written response to the conclusion of the first stage of the performance management process, that during the PIP he needed to assess whether to install particular software to complete his work, and that he did not feel PIP 1 allowed him to demonstrate his leadership or “soft skills”.
On 7 November 2024, Mr Donn was sent a letter from Mr Sandy which said his responses had been considered, but that it had been determined that the appropriate course of action was to commence the Second Stage – Formal Written Warning process. It said that a further performance improvement plan would be implemented, and at the end of the period for improvement his performance would be assessed and that this was the last step in the Second Stage - Formal Written Warning process. It said further that if Mr Donn’s performance was assessed as not meeting the required standards the formal work performance process may continue to the Third Stage - Final Written Warning.

Performance Improvement Plan number 2

On 7 November 2024, Mr Donn was provided with the second performance improvement plan (PIP 2). PIP 2 was to run from 7 November 2024 to 21 November 2024. It required that Mr Donn complete several specified tasks in respect to the Hepburn Conservation Park including five “deliverables” as outlined.
On 15 November 2024, Mr Donn raised with Mr Laylavi complications in relation to aspects of the some of the tasks associated with PIP 2. Mr Laylavi responded on 18 November 2024. In summary, Mr Laylavi’s response was that the complications Mr Donn had raised were not unusual in a task of this nature and frequently the kinds of problems a senior surveyor would be required to resolve[29].
On 21 November 2024, Mr Donn submitted to Mr Laylavi the work he had done on the tasks set by PIP 2. The tasks were not complete. In his oral evidence, there was some initial confusion about whether he agreed that the tasks were complete, but he eventually conceded that tasks were not complete at the time they were submitted[30].
Mr Donn argues that he was not provided enough time to complete these tasks within the timeline provided to him. He said the tasks could not be done within the time frame[31]. Mr Laylavi disputes this, and in a letter sent to Mr Donn on 26 November 2024 said that one aspect of the work delivered amounted to only about three days work based on the quantum of work expected of a surveyor. It also observed that several of the deliverables were not even commenced. The letter said Mr Donn had not succeeded in this second stage of the performance improvement process[32].
Mr Donn sent a letter in response to the critique made about PIP 2 dated 28 November 2024. In this letter, Mr Donn appeared to argue that the timeframe set for the completion of the tasks associated with PIP 2 was insufficient. The letter also appears to concede that several of the tasks were not complete, although issue is taken with, for example, whether one of the tasks was 60 per cent complete, or 50 per cent complete. The letter also takes issue with the proposition that during the PIP, Mr Donn was able to full dedicate himself to the tasks without interruptions, citing several other matters such as engaging in correspondence with management (about the performance management process) and attending team meetings. The letter says that Mr Donn believes “the unsuccessful outcome of this second stage PIP has been overstated”[33].
On 28 November 2024, Mr Donn was sent a letter from Mr Sandy which advised him that the Department was proposing to continue the formal unsatisfactory work performance process because Mr Donn had not met the expected performance standards in relation to PIP 2. It indicated that a meeting would be held to allow him to respond to this proposition and he could also respond in writing.
A meeting was held on 2 December 2024 involving Mr Donn, Mr Laylavi and Ms Hogan. The file note in relation to the meeting records that Mr Donn claimed he had not received proper feedback in relation to the written response he had provided in relation to PIP 1 and that this lack of feedback had hindered his performance[34].
On 4 December 2024, Mr Donn received another letter from Mr Sandy confirming that it had been decided his performance had been considered unsatisfactory including for the reason that Mr Donn did not fully complete any of the deliverables listed in PIP 2, and significant parts of the task remained unfinished. It said that the Third Stage – Final Written Warning – process would begin, which would involve a further performance improvement plan.

Performance improvement plan number 3

Mr Donn was provided with performance improvement plan number 3 (PIP 3) on 6 December 2024. It was to run from 9 December 2024 to 20 December 2024. It required Mr Donn to complete several defined tasks relating to the Hepburn Conservation Park and to present certain deliverables.
There was an exchange between Mr Donn and Mr Laylavi at the commencement of this PIP about one of the aspects of the task being “unachievable”. Mr Laylavi agreed to exclude this aspect of task from the plan.
On 20 December 2024, Mr Donn submitted his work in relation to the tasks required by PIP3. Mr Laylavi described this as “predominantly incomplete”[35]. Mr Donn’s email explanation cites various difficulties he faced in completing the work. In relation to at least one of the tasks, he said he anticipated that “one more week should be sufficiently to mostly complete the computations and/or deliverables”.

Extension to performance improvement plan number 3

Mr Donn took annual leave from 23 December 2024 to 20 January 2025. When he returned, in discussion with Mr Laylavi, it was agreed that Mr Donn would be provided with an extension of time to complete the tasks associated with PIP 3. Mr Laylavi communicated this to Mr Donn in an email dated 22 January 2025 in which he referenced discussions with Mr Donn about his estimates as to the additional time he would require to complete the tasks, and also took into account Mr Donn taking annual leave for Lunar New Year. The tasks were to be completed and presented by 7 February 2025.
Mr Donn submitted the further work on PIP 3 to Mr Laylavi on 7 February 2025. While he had made further progress, not all of the tasks and deliverables were completed[36].

The termination of Mr Donn’s employment

A meeting was held on 27 February 2025 involving Mr Donn, Mr Laylavi, Ms Hogan and Mr Cichocki. A note was made of the meeting which was provided in evidence. During the meeting, Mr Laylavi said that the “most recent files submitted on 24/02/2025 still require significant work to be fit for purpose”, and that even after “extending the timeframe and considering all factors, the work delivered is deemed not fit for the purpose”. The note records Mr Donn’s feedback – that he did not feel there were any standards for him to use as examples, that he still had unanswered questions and he still had a lack of awareness regarding the expected standards for his role[37].
On 3 March 2025, Mr Laylavi sent an email to Mr Donn which enclosed a letter from Mr Taylor, the Acting Head of Land Use Victoria. The letter said that it had been assessed that Mr Donn had not met the expected work performance standards and that the Department proposed to terminate his employment. The letter said that a meeting would be held to allow Mr Donn to respond to this proposition and that this meeting would be held on 11 March 2025. The letter invited Mr Donn to arrange for a representative to attend the meeting if he wished. Mr Donn was also invited to provide a written response to the assessment, if he wished to do so including in relation to mitigating circumstances that should be taken into account when considering the “proposed outcome”.
Also on 3 March 2025, Mr Donn sent an email in response to the critique that had been made in respect to PIP 3. Mr Donn largely rejects the criticism of his work. The response includes the assertion that some of the critique is “subjective”, and that there are no “baseline standards” in relation to some of the work and that “any that exist are entirely personal and subjective”. Mr Donn said “I stand by my own standards in the absence of any documented LRP standards or procedures. Any alternative expectations of standards are subjective …”[38].
Mr Donn sent another lengthy response, again refuting the critique of his work, on 5 March 2025. In some parts of the email, Mr Donn concedes that some of the work he supplied was incomplete (such as in relation to a “Liscad file with final adopted boundaries”). In other parts of the email, Mr Donn disputes the critique, arguing that the work he provided was adequate, that that the assessment of his work was not carried out in sufficient detail. Mr Donn also says some of the critique is of a nature that should have been the subject of feedback provided to him previously[39].
Prior to the meeting that had been scheduled for 11 March 2025, Mr Donn sent DTP a letter which he sought to raise a dispute pursuant to clause 26 of the Victorian Public Service Enterprise Agreement 2024 (VPS Agreement). This letter was also Mr Donn’s response to the assessment in relation to PIP 3 and the proposition that his employment be terminated, and his submission in relation to mitigating circumstances[40]. Five versions of this letter were provided to DTP (and in evidence) by Mr Donn, each of which appeared to be progressive drafts of the same letter, with more information added in each draft. The first four of these drafts were provided to DTP between 7 November 2025 and 10 November 2025[41]. A version of the letter described as “Draft 4” was submitted in evidence by DTP (and Mr Donn) and was the subject of particular focus during the hearing of this matter.
Each draft of this document exceeds 70 pages and the version called “Draft 4”, runs for 79 pages. In parts of the document, it is incomplete and contains drafting notes made by Mr Donn for future additional content. Some of the assertions made by Mr Donn in the letter include the following:

a.Mr Donn argues that the process he was subjected to was not consistent with the VPS Agreement for various reasons.
b.Mr Donn alleges that he was at various times during the process he was subjected to not able to arrange the attendance of a representative or support person at meetings, because he was not provided with enough time to arrange this to occur (having been provided with as little as only one day notice of some meetings, and never more than six days’ notice).
c.Mr Donn alleges that at some stages during the process he was not afforded enough time to formulate a response to assessments made of him and was not provided with an appropriate opportunity to present evidence and information in response to alleged underperformance.
d.The letter alleges that Mr Donn was not provided with sufficient information and documentation in relation to the allegations made against him of unsatisfactory work performance, and was not provided with information as to the performance issues with sufficient specificity, referencing, for example, what he considered to be “unsubstantiated” or cursory critique, and his often repeated complaint that he had not been provided with sufficient training, resources, guidelines and feedback in relation to his work.
e.Mr Donn alleges that he was not given an opportunity to improve his performance within a reasonable timeframe.
f.Mr Donn alleges that there was bias in the process, particularly due to the cursory or dismissive approach taken to the responses Mr Donn provided to the allegations made against him.
g.Mr Donn again repeats his complaint as to a lack of proper feedback and assessment provided to him.

A meeting occurred on 11 March 2025 involving Mr Donn, Mr Laylavi, Mr Cichocki and Ms Emina Ismail, from DTP’s people and culture area. Ms Ismail gave evidence at the hearing of this matter. According to Ms Ismail’s evidence, it appears that while the purpose of this meeting had been to obtain Mr Donn’s response to the assessment made in relation to PIP 3 and the proposition that his employment be terminated, Mr Donn’s activation of the VPS Agreement’s dispute process confused things somewhat and while Ms Ismail says Mr Donn confirmed that his letter was in response to the “show cause” process, he did not want to discuss the matter at length. In any event, it appears that as a result, Mr Donn’s letter was referred according to DTP process to the “Review of Actions” registrar. It further appears that this process delayed the finalisation of the termination of employment process. Thus, during the balance of March 2025, Mr Donn continued to work as instructed[42].
The Review of Actions Registrar, Mr Baxter, later advised Mr Donn that an application for a Review of Actions could not be made where the matter pertains to termination of employment, in that sense, dismissing the application[43].
Ms Ismail said that she prepared a brief for the Department’s delegate, Mr Andrew McKeegan, recommending the termination of Mr Donn’s employment. The brief, provided in evidence, records the manner in which Mr Donn’s responses, including his letting provided prior to the meeting held on 11 March 2025 (which was also attached to the brief) had been considered[44].
An email was then sent to Mr Donn on 2 April 2025, by Mr Laylavi, inviting him to a meeting the following day, on the basis that the “deputy secretary has made a decision on the outcome of the process”. The meeting was to occur at the DTP premises in Melbourne, and the email invite to the meeting indicated Mr Donn could arrange for a support person to attend the meeting.
Mr Donn claims to have been confused about the nature of this meeting. He claims in his evidence that he thought this meeting was to be about the “PIP 3 outcome”, particularly on the basis that he considered he had not received a response to the letter he provided before the meeting held on 11 March 2025[45].
Mr Donn also claims that Mr Laylavi offered, on 2 April 2025, to bring forward the timing of the meeting scheduled for the following day. Mr Donn said that this “would seem to make the organisation of a support person even more unachievable and unreasonable than it already was”, suggesting that he had not had sufficient time to organise a support person to attend this meeting[46].
On the morning of 3 April 2025, Mr Donn sent an email to Mr Laylavi advising that he had decided to work from home that day, on the basis that if there were “follow up actions” following the meeting in the afternoon, he could undertake them with privacy. Mr Laylavi offered to re-schedule the meeting, but Mr Donn said it was not necessary.
The meeting on 3 April 2025 between Mr Laylavi and Mr Donn therefore occurred on-line, during which Mr Laylavi advised Mr Donn that the decision had been made to terminate his employment. Mr Laylavi forwarded Mr Donn a letter signed by Mr McKeegan confirming this.
The letter from Mr McKeegan confirming the termination of Mr Donn’s employment says that the reason for the decision is that Mr Donn’s performance and delivery had not improved to the required standard within the reasonable time period following the process set out in the VPS Agreement in respect to performance management, and after a final written warning was issued. The letter responded to some of the matters raised in some of Mr Donn’s responses, including the letter provided on 10 March 2025.

Statutory provisions - unfair dismissal

Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

a.whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
b.whether the person was notified of that reason; and
c.whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
d.any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
e.if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
f.the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
g.the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
h.any other matters that the FWC considers relevant.

I am required to consider each of these factors, to the extent they are relevant to the factual circumstances before me[47].

Was there a valid reason for dismissal related to Mr Donn’s capacity or conduct?

It is well established that order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced” [48].
It is also well established that the reason for termination of employment based on underperformance will be “related to the capacity” of the Applicant where the reason is associated or connected with the ability of the employee to do his or her job[49].
Merely establishing the factual basis for the reason for dismissal does not by itself demonstrate it was a valid reason. Dismissal must be a justifiable response to the relevant conduct or issue of capacity[50]. A reason not of sufficient gravity to justify dismissal is not sound, defensible or well-founded[51].
However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer[52].
The reason for the decision to terminate Mr Donn’s employment was that DTP considered his work performance had not been to the required standard and that, after having been given adequate opportunity to improve, could not do so.
Mr Donn contends, in essence, that the critique of his work performance was not sound, defensible or well founded. As mentioned above, Mr Donn’s materials were voluminous and dense, but several key propositions can be extracted which appear to form the key contentions upon which he bases his claim:

a.That implementation of the performance improvement process was misconceived or not warranted.
b.That the performance improvement process involved the allocation of tasks, against which Mr Donn’s performance was assessed, which were not tasks he was used to performing.
c.That during his employment Mr Donn was not provided with adequate training, instruction, guidelines, resources and feedback.
d.That during his employment, Mr Donn was given conflicting or confusing instructions, not provided with enough time to complete tasks or taken off tasks before he had a chance to complete them, and then criticised.
e.That the performance improvement plans were to some extent mis-assessed, unfavourably with respect to Mr Donn.
f.That there was bias or bullying directed against Mr Donn.

Against these propositions is the fundamental assertion made by DTP – that Mr Donn did not complete the work that was allocated – that he “didn’t do the job”[53]. This was, to some extent, conceded by Mr Donn at various times, including in his closing submissions[54]. This, was, on Mr Donn’s submission, the result of various mitigating factors. But it seems to me the inescapable conclusion must be that in relation to much of the work allocated to Mr Donn, whether in 2023 or early 2024, or throughout the PIPs in 2024, it was simply not completed to conclusion.
It is necessary to deal with Mr Donn’s assertion that he was not provided with adequate training, instruction, feedback or guidelines as to the manner in which DTP required him to produce work, in relation to which, as an experienced and licensed surveyor, he is expert. Mr Donn relied on this assertion throughout the performance management process and in his submission that the termination of his employment was unfair. For example, it is the crux of his response to PIP 1 – that the tasks imposed upon him were not tasks he had done at LRP before, albeit they were tasks that he had been responsible to have oversight over, in terms of checking others’ work, and also tasks he had performed in previous roles.
In dealing with this assertion, it is appropriate first to acknowledge the complexity and intricacy associated with the work being performed by Mr Donn and his colleagues. It is highly technical work. It strikes me as requiring a significant level of attention to detail.
I accept that, being confronted with work of this highly technical nature, even though Mr Donn is an experienced professional in his field, a level of uncertainty about exactly how his employer may have wanted his work presented is likely to have been unsettling. I also accept that Mr Donn’s expectation as to how he should have been inducted into the particular processes used in LRP (as opposed to previous organisations he had worked for), trained in its systems and what resources and information he felt should have been available to him was different from what was actually provided by LRP. In this regard I make no particular criticism of LRP – rather I simply observe that there is a misalignment between what Mr Donn expected or would have liked to have been provided, and the actuality of the circumstance he found himself in.
I also accept, based on Mr Donn’s evidence, that he was not idle at LRP – that he worked hard and tried his best to contribute to the work of the organisation.
However, Mr Donn’s case is effectively based on the proposition that in circumstances where the supports around his role were not as he would have liked, and where he was making his best efforts to contribute to the work of the organisation, those best efforts should be accepted as good enough, despite them not aligning with the outcomes being sought by his employer in respect of his role.
I do not accept that proposition. LRP wanted from Mr Donn the completion of certain pieces of work, to an adequate standard. Mr Donn was not able to deliver that.
Mr Donn’s protestations about his unfamiliarity with the nature of the work he was allocated in relation to PIP 1 seem to me to have come somewhat after the fact. DTP’s performance management process is detailed and robust. Each of the PIP’s (including PIP 1) were set in a manner where more than adequate opportunity was provided to him to make his objections known if the PIP was manifestly inappropriate. When PIP 1 was provided to Mr Donn, on 9 September 2024, he did not raise significant concern about the nature of the tasks allocated to him, where at other points in the process, his missives had been lengthy and assertive.
To some extent, Mr Donn takes issue with this. He initially submitted that the PIP’s were set without “without his involvement”[55]. But then he clarified this submission such that what he asserts is that he felt he had no alternative than simply to accept the PIP’s and the tasks set out in them[56].
I do not consider the evidence supports, entirely, Mr Donn’s submission. Before each PIP was set, the process involved a formal written notification provided to Mr Donn which contains the proposition that a PIP would be implemented, includes an invitation to respond, then a meeting held involving various people including DTP’s “people and culture” area, and then a written PIP issued. At this point, DTP was still open to Mr Donn’s response – such as in relation to PIP 3 when Mr Donn queried some aspects of the tasks allocated and they were altered.
This is not to say that ultimately, and in response to critiques about his performance in PIP 1, Mr Donn did not then raise his concerns about not having performed those tasks directly at LRP.
But, if I am being asked by Mr Donn to find that the PIP process, which began with the allocation of tasks in PIP 1, was a process designed to ensure Mr Donn failed I cannot do so. In my view, Mr Donn took on the tasks associated with PIP 1, made his best efforts to complete them but fell foul of the same limitations that had pervaded his employment with LRP from the beginning – a misalignment between LRP’s expectations and the way Mr Donn undertakes his work.
If Mr Donn was indeed limited by not having been provided with training to use the correct software, clarity of feedback as to what was expected of him or guidelines as to how to complete the work, he also bears some onus to have taken steps to inform himself in relation to some of these matters. I acknowledge that to some extent he did. But Mr Donn again failed to complete to an adequate standard PIP 2 and PIP 3. In relation to the tasks associated with these plans, he again said that his unfamiliarity with systems or expectations contributed to his failure, and that the time provided to him to complete these tasks was inadequate (albeit the timeframe in respect to PIP 3 was extended). He also said that DTP reinstated the requirement to complete the PIP 2 tasks as part of PIP 3, “thereby compounding any shortcomings of the PIP 2 by imposing the remediation of them on the PIP 3 timeframe” which he submitted was unreasonable[57].
It is difficult to accept that by January 2025, after about six months of formal performance management, Mr Donn’s failure to complete tasks allocated to him can continue to be explained by a failure on LRP’s part to make clear to him the manner in which the work was to be delivered. If not earlier, then at least by this time, taking into account the amount of time spent with Mr Donn counselling him (much of it documented in the mountain of paper filed in relation to this proceeding), I consider it was reasonable for DTP to have expected that a professional at Mr Donn’s level should have been able to deliver the tasks it had allocated to him.
I note that on several occasions, Mr Donn alleged that he had been “bullied”. The particular focus of this allegation seems to be Mr Laylavi. I did observe what seems to me to be fairly deep-seated problems in the relationship between Mr Donn and Mr Laylavi, evident from the passive aggressive nature of some of their correspondence and their exchanges when Mr Laylavi was in the witness box. I do not consider there is any evidence supporting the allegation that Mr Laylavi engaged in conduct capable of being described as workplace bullying with respect to Mr Donn. I do think that the apparent incompatibility between Mr Laylavi and Mr Donn probably made it more difficult for Mr Donn to succeed. However, I do not think that Mr Laylavi engaged in conduct which causes me to consider the critique of Mr Donn’s work performance was anything less than genuine.
I consider that the reason provided for the termination of Mr Donn’s employment by DTP was sound and well-founded, and thus a valid reason for the dismissal relating to his capacity. This factor weighs in favour of a finding that the termination of Mr Donn’s employment was not harsh, unjust or unreasonable.

Was Mr Donn notified of the reason for dismissal?

Notification of the valid reason for dismissal must be given to the employee explicitly and in plain and clear terms. And crucially, this must occur before the decision to terminate the employment is made[58].
There seems to me to be no question that Mr Donn was informed of the reason for the dismissal of his employment before it occurred. This is despite Mr Donn’s submission that he was not notified of the reasons for his dismissal pursuant to s 387(b) of the Act. Mr Donn’s submission was that despite his requests, at each stage of the performance management process (and presumably the process to ask him to “show cause” why his employment should not be terminated), he was subjected to “vague, generalised, speculative, subjective, unsubstantiated, illogical or false quality, expertise and professionalism allegations”, without “specific examples of proof of the allegations”[59].
I do not accept this submission. Mr Donn was advised in witing on 3 March 2025 that DTP was considering terminating his employment, for reasons associated with his work performance. He had previously been given warnings in relation to his performance that were detailed in their critique. Undoubtedly, Mr Donn did not accept much of that critique (although did concede some of it was valid[60]). He may not have agreed with it, but he was provided notification of the reason for which it was being considered that his employment terminate in plain and clear terms.
This factor weighs in favour of a finding that the termination of Mr Donn’s employment was not harsh, unjust or unreasonable.

Was Mr Donn given an opportunity to respond to the valid reason?

An employee protected from unfair dismissal should be notified of a valid reason for the termination of their employment before a decision is taken to terminate that employment so that they can provide a response before the decision is final[61].
Mr Donn submitted that he was not provided an opportunity to respond to the reason provided for the proposition that his employment terminate. However, having taken up the opportunity offered to him to respond to the proposition by providing four versions of a letter running some 70 pages (in effect, over 280 pages of response), this submission is difficult to accept.
Mr Donn’s rationale for this submission is that the assessments made of him were vague and generalised, that his responses when he did provide them were treated dismissively, and that thus the termination outcome was pre-determined[62]. He also claimed at various times that he was not provided with enough time to respond to critiques levelled against him.
I consider that Mr Donn’s allegations, made for example in his substantive letter provided before the meeting on 11 March 2025, that he was not afforded enough time to provide responses to assessments made of him, lacks substance. Mr Donn was throughout the process, which extended over a significant period of time, provided numerous opportunities to put forward his side of the story, in meetings and in writing. Over the course of the process, he did provide responses to DTP that I can only describe as voluminous. Mr Donn appears to suggest that at various stages the process proceeded before his response (invariably copious) was delivered or there was enough time to consider it. Inherent in this submission is the proposition that the process he was subjected to was unfair, because it might not have gone forward had more time been provided to him to respond, or more time been allocated to consider his response. I do not accept this proposition. Often Mr Donn’s responses, when ultimately provided, attacked the form of the critique delivered against him, not its substance. Often, rather than taking issue with the critique itself, Mr Donn protested at the lack of justification or exemplification for the critique. I consider DTF, having provided Mr Donn with extensive opportunities to respond to the allegations made about his work-related inadequacies, understood in detail Mr Donn’s response to them, and took them into account as it moved through the process. I consider this to be the case in part because undoubtedly, Mr Donn did provide DTP with lengthy responses to the allegations made against him.
I find Mr Donn was provided with an opportunity to respond to the reason for his dismissal. This factor weighs in favour of a finding that the termination of Mr Donn’s employment was not unfair.

Did DTP unreasonably refuse to allow Mr Donn to have a support person present to assist at discussions relating to the dismissal?

Mr Donn argued that DTP did not afford him an opportunity to have a support person present at discussions relating to the dismissal. However, when the proposition was put to Mr Donn that there was no evidence that DTP refused to allow him to have a support person present, he did not appear to press this submission[63].
There is no evidence before me that DTP refused to allow Mr Donn to have a support person present at discussions relating to his dismissal. There is evidence that DTP advised Mr Donn expressly that he could have a support person present at various meetings relating to his dismissal. This is a neutral factor in this matter.

Was Mr Donn warned about unsatisfactory performance before the dismissal?

Mr Donn did not submit in his final submissions that he was not warned about unsatisfactory performance. In his written submissions, he did argue that there has been a “consistent lack of specificity in the Respondent’s allegations”[64] and, as he has done throughout the proceeding, submitted the allegations made against him were subjective, unsubstantiated, cursory or lacked detail[65].
I accept that Mr Donn was warned about unsatisfactory performance before his dismissal. He was provided with several warnings, and each provided him with sufficient detail as to the nature of the concerns held by DTP about his work performance. The performance management process, which was detailed and robust, extended over four performance improvement plans and a show cause process, throughout 2024 and into 2025.
As I have observed previously, I accept Mr Donn did not (to some extent) agree with some of the criticism. But I do not accept he could have been oblivious to its nature and to the consequences for his employment if it did not improve – which were articulated clearly and included the termination of his employment.
This factor weighs in favour of a finding that the termination of Mr Donn’s employment was not unfair.

To what degree would the size of DTP enterprise or the absence of human resources management specialists be likely to impact on the procedures followed in effecting the dismissal?

As I have observed, the procedures adopted by DTP in relation the dismissal were detailed and robust, reflective of its size and the resources available to it. This is a neutral factor in this matter.

What other matters are relevant?

Mr Donn submitted that the dismissal of his employment in the current economic climate is especially harsh because there are only 400 practicing licensed surveyors in Victoria, and many of the jobs available are with Government. He also explained that interstate relocation presents challenges because of differences in legislative and regulatory frameworks.
I accept that the effect of the termination of employment over Mr Donn is harsh, also taking into account his age (he is 58 years of age). This factor weighs in favour of a finding that the termination of his employment is harsh, unjust or unreasonable.
A further comment is appropriate in this context. I consider that an unfortunate coincidence of circumstance resulted in Mr Donn’s failure to be able to meet the requirements of the role he took on with LRP. One was his incompatibility with his manager. Another was the ongoing draw back towards the DCM project, where his passion lay. It also appears to me he was somewhat overwhelmed by uncertainty associated with not being sure how his employer might want the highly technical work he was responsible for presented. These and other factors appeared to have contributed to a palsification in Mr Donn being able to knuckle down and deliver the work allocated to him. However, I consider it is evident that Mr Donn is a competent professional, with capability in a highly skilled area. I suspect that had the circumstances been other than they were, it is likely he would have been able to complete the kind of work he was allocated.

Accordingly, in circumstances where it appears significant alternative job opportunity in Mr Donn’s profession lies within Government, it is my hope that his experience with LRP does not render him ineligible for any future job opportunity, especially relating to the digitisation aspects of the work in which he is expert.

Is the Commission satisfied that the dismissal of Mr Donn was harsh, unjust or unreasonable?

I have made findings in relation to each matter specified in s 387 of the Act. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable[66]. The weight of these considerations bears in favour of a finding that the dismissal of Mr Donn was not harsh, unjust and unreasonable and I find Mr Donn was not unfairly dismissed.

Conclusion

Having found as I have that Mr Donn’s dismissal was not harsh, unjust or unreasonable, the application is dismissed.

COMMISSIONER

Appearances:

Mr Donn appearing for himself

Ms Anderson for the Respondent

Hearing details:

2025
Melbourne
Monday 15 July, Monday 28 July, Tuesday 29 July, Wednesday 30 July

[1] Transcript PN2939 – PN2940

[2] Transcript PN65

[3] Witness Statement of Gerald Donn, [4]

[4] Statement of Further Evidence, Gerald Donn [5]

[5] Transcript PN1515

[6] Ibid

[7] Witness Statement of Feri Laylavi, 4 July 2025 [32]

[8] Ibid [16]

[9] Ibid [23]

[10] Transcript PN29 – PN31

[11] Witness Statement of Feri Laylavi [29] – [31]

[12] Transcript PN2436

[13] Transcript PN430

[14] Ibid [38]

[15] Ibid [42]

[16] Ibid

[17] Ibid

[18] Ibid [45]

[19] Ibid [46]

[20] Ibid [47]

[21] Ibid [49]

[22] Witness Statement of Gerald Donn [58]

[23] Transcript PN580 - PN582

[24] Ibid [66]

[25] Transcript PN828

[26] Transcript PN617 – PN620

[27] Transcript PN829

[28] Witness Statement of Gerald Donn [86]

[29] Witness Statement of Feri Laylavi [58]

[30] Transcript PN981

[31] Transcript PN972

[32] Witness Statement of Feri Laylavi [60]

[33] Witness Statement of Gerland Donn [107]

[34] Witness Statement of Feri Laylavi [62]

[35] Witness Statement of Feri Laylavi [64]

[36] Transcript PN1043

[37] Witness Statement of Gerald Donn [142]

[38] Ibid [144]

[39] Ibid [148]

[40] Witness Statement of Gerald Donn [150]

[41] Ibid [150]

[42] Witness Statement of Emina Ismail, 4 July 2025 [35]

[43] Witness Statement of Gerald Donn [162]

[44] Witness Statement of Emina Ismail [38]

[45] Transcript PN1108

[46] Witness Statement of Gerald Donn [158]

[47] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 [14]

[48] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 [373]

[49] Crozier v Australian Industrial Relations Commission [2001] FCA 1031 [14]

[50] Raj Bista v Glad Group Pty Ltd t/a Glad Commercial Cleaning[2016] FWC 3009 [34]

[51] Kylie Smith v Bank of Queensland Ltd[2021] FWC 4 [124], [126]

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

[53] Transcript PN13057

[54] Transcript PN2809 – PN2812

[55] Transcript PN2842

[56] Transcript PN2860

[57] Transcript PN2816

[58] Newton v Toll Transport[2021] FWCFB 3457 [182]

[59] Transcript PN2824

[60] Transcript PN580 – PN582

[61] Crozier v Palazzo Corporation (1996) 98 IR 137 [73]

[62] Transcript PN2826

[63] Transcript PN2835 – PN2836

[64] Applicant’s Outline of Arguments, Question 5(d), [1]

[65] Ibid [2] – [7]

[66] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) IR 117 357 [51]; Edwards v Giudice [1999] FCA 1836 [6] – [7]

Printed by authority of the Commonwealth Government Printer