[2020] FWC 6601

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Paula Tracy
v
Ironbark Software Pty Ltd
(U2020/4596)

COMMISSIONER HUNT

BRISBANE, 9 DECEMBER 2020

Application for unfair dismissal remedy – no valid reason for dismissal – dismissal harsh, unjust and unreasonable – poor display before Commission on behalf of respondent – award of maximum compensation to be ordered.

[1] On 9 April 2020, Ms Paula Tracy made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Ironbark Software Pty Ltd (the Respondent or Ironbark). Ms Tracy seeks a remedy of compensation.

When can the Commission order a remedy for unfair dismissal?

[2] Section 390 of the Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the applicant has been unfairly dismissed.

[3] Both limbs must be satisfied. I am therefore required to consider whether Ms Tracy was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that she was so protected, whether she has been unfairly dismissed.

When is a person protected from unfair dismissal?

[4] 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.

When has a person been unfairly dismissed?

[5] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

[6] Section 387 of the Act details what must be considered in determining if a person has been unfairly dismissed:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.”

No jurisdictional issues

[7] Ms Tracy has met the minimum employment period, and her annual rate of earnings was less than the high income threshold. Ms Tracy made her application on 9 April 2020. It is not disputed that her employment ended on 31 March 2020, and accordingly the application has been made within the statutory time limit of 21 days.

Background

[8] The Respondent provides complex enterprise resource planning (ERP) software, such as payroll software to large Australian companies. Ms Tracy commenced employment with the Respondent on 27 September 2010 as a Receptionist and Administration Assistant and had continuous service until the time of termination. Her most recent title was Office Manager.

[9] Ms Tracy worked with a colleague whom I have anonymised as Mr ZA. Ms Tracy and Mr ZA worked together amicably from late 2010 until around August 2019, when the working relationship broke down leading to a series of incidents in the workplace.

[10] On 18 March 2020 a meeting occurred which resulted in Ms Tracy leaving the office. The following day Ms Tracy attended a doctor’s appointment and obtained a Workers’ Compensation Work Capacity Certificate. The certificate declared her unfit to attend work until 11 April 2020 due to stress. Ms Tracy advised the Respondent that she would not be attending for work for the rest of the week, 19 and 20 March 2020.

[11] On the evening of 19 March 2020, Ms Tracy forwarded email chains from the Respondent’s administration email account which she used to a non-company personal email address. There is a factual contest about why Ms Tracy forwarded the relevant emails.

[12] On 31 March 2020, Ms Tracy received the below letter terminating her employment. It is noted that the letter was dated 20 March 2020, but prepared by Mr Christopher Findlater, Managing Director of the Respondent, between around 23 March 2020 to 25 March 2020 and received by Ms Tracy on 31 March 2020 by registered post:

“Dear Paula

Termination of Employment Notice - Paula Tracy

This letter is notice of termination of your employment with Ironbark Software. As of Friday the 20th March 2020.

This termination is a result of a number of issues that began in November 2019 with a series of confrontations with another staff member. In spite of meetings attempting to resolve these issues, the situation has not improved.

In addition, the position of office administrator allows access to sensitive staff records, company documents and bank records. Ironbark is reliant on complete trust and loyalty for this position.

You not only betrayed this trust by taking unapproved leave at a time of national crisis but you also forwarded sensitive internal emails to other parties (Michael Tracy) on Thursday 19 March 2020 at 6.30pm using the admin account. This is a direct violation of Ironbark Security Policy and directly affects government restrictions on OTP payroll conditions for suppliers. It is also a violation of your Employee Confidentiality Contract and Employment contract. This violation alone is sufficient cause for instant dismissal.

Your decision to take stress leave and proceed with Worker Compensation has been made without consultation with management at Ironbark Software and will be vigorously opposed.

You are instructed to return all access cards and keys in your person that relate to access to the Ironbark offices access. Do not enter Ironbark premises or to contact any employee of Ironbark, or attempt to access computer data held on Ironbark Servers.

Your pay obligations will be paid when reconciled.

Yours sincerely

…..

Chris Findlater
Managing Director”

[original text and emphasis]

[13] The Respondent considered the termination to be a summary dismissal and therefore did not pay to Ms Tracy any notice on termination nor pro-rata long service leave on account of having approximately 9.5 years’ service.

[14] The emails forwarded by Ms Tracy to a personal email address contained information related to medical appointments arranged for Mr ZA by the Respondent. It is not necessary to reproduce the entirety of the emails in this decision. However, it is noted that the following was forwarded:

(a) An email chain on 23 September 2019 titled “DR Appointment” between Ms Tracy, Mr ZA and Mr Simon Lee Bridger, Software Development Manager about a psychiatrist’s appointment arranged by the Respondent for Mr ZA which emphasised the importance of obtaining a referral;

(b) An email chain from 26 September 2019 to 9 October 2019 titled “Psychiatrist” between Ms Tracy and Mr ZA about Mr ZA keeping taxi receipts from travel to the psychiatrist’s appointment as Mr Findlater would be paying for it; and

(c) An email chain on 18 October 2019 between Ms Tracy and Ms Margaret Duncan, Bookkeeper as set out in the below paragraphs.

[15] With respect to the email chain on 18 October 2019 between Ms Tracy and Ms Duncan at [14(c)], it is noted that the emails demonstrate that Ms Tracy sent to Ms Duncan the below correspondence about Mr ZA’s alleged behaviour:

“Hi

I am sure there is more, but this is a start

Bullet points

• Short fuse

• Staff freighted to talk to him in case he losses it (has smashed trays at work, kicked and threw a chair)

• Victim

• Selfish

• Takes no responsibility for actions

• Threatens to kill himself (putting 2 fingers to his head)

• Said everyone is inconsiderate (on the road), so now doesn’t indicate, speeds and if he dies, so be it

• Gun licence – guns and bullets at home

• Said if he losses his guns then life is not worth living as these are the only things that make him happy

• Money – will not spend as if he has to now that means his whole life has been a waste

• Worries about everything to the extreme – laid awake at night worrying if neighbours were going make noise

• wont drive into city and will not pay for taxi so IBS staff have to take him or pay for cabs

• Doesn’t want to go on any medication, he said it is better for everyone else but no him, so not doing it

• Should of stayed in Cairns????? Took drugs, drank and got a slut pregnant

• Talked about trying something new, but said if he doesn’t like it after 3 months then its been a waste of money

• Lives with mum

• The only thing that would make him happy is more money, and opening up a gun range/place to ride bikes or quads

• Doesn’t understand why he hasn’t got a girlfriend

• Hates Brisbane and talks of moving back home

• Depressed and miserable all the time

• Doesn’t attend work Christmas parties…..”

[original text]

[16] Following receipt of the above correspondence from Ms Tracy, Ms Duncan forwarded a copy of the email to a reception email account of the medical clinic to where Mr ZA was to attend an appointment. In doing so Ms Duncan included the correspondence below:

“Hi

We are bringing [Mr ZA] in on Friday at 11am to see [doctor’s name] for his appointment.

I thought it best that we right down a few things that we are very concerned about and why the company is paying for his initial treatment.

The office is “walking on eggshells” at the moment so we have written down below an insight on to what is going on.

Please add this to his file. I will be the one driving him in on Friday.

He’s a good [occupation] but we are very concerned about his mental health.

Kind regards

Maggie Duncan
Bookeeper…..”

[original text]

Hearing

[17] There being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing. I considered it appropriate to hold a hearing to resolve the matter. This matter was heard before me by telephone on 16 July 2020.

[18] Ms Tracy represented herself and gave evidence at the hearing in support of her application. The Respondent was represented by Mr Christopher Findlater, Managing Director and Chief Executive Officer, who also gave evidence for the Respondent. The following persons also appeared at the hearing and gave evidence for the Respondent:

(a) Mr Simon Bridger, Software Development Manager;

(b) Mr ZA, [occupation]; and

Confidentiality order

[19] I have made a confidentiality Order [PR725251] in respect to one of the Respondent’s witnesses. I consider it necessary to protect his identity in these proceedings. As stated at [8], throughout this decision the individual will be referred to as Mr ZA.

Evidence and Submissions of Ms Tracy

[20] Ms Tracy commenced employment with the Respondent on 27 September 2010 and stated that her employment was terminated effective 20 March 2020. Her evidence is that she was notified of her termination by receiving the letter set out above at [12] by registered post on 31 March 2020.

[21] It was submitted that her dismissal was harsh or unreasonable as she was not was offered procedural fairness in the way the dismissal was conducted. Ms Tracy stated that she was not notified of the reasons for the dismissal until 11 days after it purportedly took effect and she was not given an opportunity to respond to the allegation(s) in the letter dated 20 March 2020.

[22] At a meeting between Ms Tracy and Mr Findlater on 18 March 2020, several issues were discussed including money received, customers and other things. Ms Tracy stated that this was normal conversation with Mr Findlater when he attended the office approximately one day per week. Ms Tracy stated that the following was also discussed:

(a) Mr Findlater blamed Ms Tracy for not having work completed that customers had been chasing. She informed him that she speaks with Mr Bridger and Mr Patrick Loo weekly and sends them a spreadsheet with all the tickets that are being chased (as they are the team managers). Mr Findlater said that is not good enough and Ms Tracy needs to “become a bitch and bring the whip out if necessary”;

(b) With respect to ongoing matters between Ms Tracy and Mr ZA, Mr Findlater said that Ms Tracy was “toxic” and that the jury was out on that situation. Ms Tracy tried to talk to Mr Findlater, however he was talking over her. She asked Mr Findlater to let her talk; in reply he said, “Right, this is your first verbal warning”;

(c) Mr Findlater asked Ms Tracy if she wanted to look for another job. She replied no, she enjoys her job and would like to get things resolved. Mr Findlater stated that she had better look for one, to which she replied “Seriously?” and Mr Findlater said yes, as Mr ZA is more valuable to the Respondent; and

(d) Ms Tracy left the meeting crying. She immediately contacted Ms Duncan by telephone who told her to go home from work for the day. She went back into the office, turned off her computer and said to Mr Bridger at his office door that she wouldn’t be in for the rest of the week.

[23] Ms Duncan contacted Ms Tracy by phone later that day. She relayed that Mr Findlater wanted her to know that any leave she took would be considered annual leave and not sick leave, and if she wasn’t in the office on Friday, 20 March 2020 he would look for someone else and probably sack her for storming out the office.

[24] On 19 March 2020, Ms Tracy attended her doctor who declared her unfit for work for two weeks due to stress. She was issued with a Workers’ Compensation Work Capacity Certificate. It is understood that Ms Tracy subsequently made a workers’ compensation claim to WorkCover Queensland after 20 March 2020. During the hearing, Ms Tracy stated that two years ago she had heart surgery and she has to avoid stress to keep her heart rate down. 1

[25] With respect to the emails that Ms Tracy forwarded from the Respondent’s administration email account on the evening of 19 March 2020, Ms Tracy submitted that the emails were sent to her own personal email address she shares with her husband, Mr Michael Tracy. She stated that they were sent under the advice of WorkCover Queensland to gather evidence for her claim and were for her records only. She stated that she was unaware of any policy in relation to privacy of emails.

[26] With respect to the list of bullet points about Mr ZA prepared by Ms Tracy in the email set out above at [15], she stated that she prepared that information at the request of Ms Duncan. 2

[27] During the hearing in cross-examination, Ms Tracy gave the following oral evidence about the events that occurred between the meeting on 18 March 2020 and the evening of 19 March 2020: 3

Commissioner:	Yes, Ms Tracy.
Ms Tracy:	Sorry. On the 18th, we were having a meeting to discuss cash flow and everything else. Chris has said to me about work that wasn't getting done, because I kept a list of all issues, or problems, that customers are being chased, when they chase them. It was sent to the team managers Patrick Liu and Simon Bridger. And also they could get in and see in a program that we have called Keys. Mr Findlater said to me, it's my fault they're not getting done. The buck stops with me. Then he said I need to become a bitch and get the bitch out if necessary. I'm processing this and he said something about [Mr ZA]. I didn't hear what the words were and I said that in my statement. All I heard was [Mr ZA] and I said that, as you brought it up, it feels uncomfortable. So we will resolve it. Chris' response was, "Do you want to look for another job?" I said, "No, because I do actually enjoy it here. I just want to get this resolved." Chris said, "Well, I suggest you do." My response was just, "Really?" I was shocked that he said that. Then he said, yes, because [Mr ZA]'s more valuable to us than you are. With the build-up of everything, I did leave the office, and I was really, really, hurt and upset. I went home to see what I could do. And, yes, I did contact WorkCover to find out, and that's when the suggested was - I explained it. They said to send the emails. I probably wasn't thinking clearly, but as they were emails I was involved in, and I sent them to my private address, it was just as background, because I didn't have anything. That was the only reason.
Mr Findlater:	Can I ask you a question, though, relating to this email address, I find it somewhat strange, and you may be able to explain this to me, you must be the only woman with a partner that you share an email address with. Is this true?
Ms Tracy:	No, I know quite a people that have one email address.
Mr Findlater:	How long have you been with your partner? About two years, or something like that?
Ms Tracy:	Almost five.
Mr Findlater:	And you've shared an email with him the whole time.
Ms Tracy:	Not the whole time. The last three or four years.
Mr Findlater:	So everything that goes to you, he sees.
Ms Tracy:	Yes, if he looks at it. I don't look at all his emails and I don't think he looks at all of mine.
Mr Findlater:	So, you don't deny he would have seen those personal emails from [Mr ZA], or to the psychologist.
Ms Tracy:	They weren't open. I could tell they weren't opened.
Mr Findlater:	So it's a shared email address?
Ms Tracy:	Yes, but he gets lots of emails that I don't look at.
Mr Findlater:	Come on. The next question is, are you - you're obviously aware of confidentiality agreements. Obviously you wouldn't share an email of, let's say, an interaction from a client with anyone else. So, I would say to you, why is an employee any different to a client?
Ms Tracy:	I didn't share it with anyone else. The only reason I sent these was because of what happened. ….. The only reason I sent these emails to my email address was because WorkCover said just give us all this information. Because, again, all I felt I'd done was try and help [Mr ZA] and then he was ignoring me, rude, baiting me. …..

[28] In further cross-examination the following was put and answered: 4

Mr Findlater:

…..do you accept that Maggie Duncan told you on the 19th, and you actually state in your witness statement, that if you didn't turn up for work on Friday, or early next week, then I would have to look for another employee. Now, isn't that indication that you would be dismissed if you didn't turn up? Isn't that confirmation that, yes, you were aware that you were going to be dismissed and that you had …”

Ms Tracy:

No.

[29] Following cross-examination, relevant to the meeting of 18 March 2020 I put the following to Ms Tracy: 5

Commissioner:	Relevant to the meeting of 18 March, Mr Findlater's evidence is that he had asked you whether you were keeping away from [Mr ZA], and it then resulted in a complete tirade. You asked him why [Mr ZA] is still working at Ironbark. Is that what you asked?
Ms Tracy:	No, I never said that. All that was said, as I said before, was Chris had blamed me. I didn't hear what he said about [Mr ZA]. He blamed me for work not getting done, and to become a bitch and get the whip out, which I didn't think was appropriate. I didn't hear what he said about [Mr ZA]. Then I said, as you brought it up, it's still uncomfortable, can we get it sorted? He said, "Do you want to look for another job?" I said, "No." Then he said, "I suggest you do." When I said, "Really?" He said, "Yes, because [Mr ZA]'s more valuable to us than you are." I never, ever, once said why is [Mr ZA] still working here.
Commissioner:	Thank you. Mr Findlater's evidence is that it led to you implying that he needed to choose between you or [Mr ZA]. What do you say about that?
Ms Tracy:	I never once gave that indication. When he said I should look for another job, I said, "Really?" Nothing about [Mr ZA] was mentioned and it was never implied that it should be me or [Mr ZA]. I have never asked for that. It was really just like, "Do you want me to go?" That was all it was. There was nothing else. There was nothing else implied. I can 100 per cent say that.

[30] With respect to Ms Tracy’s relationship with Mr ZA, Ms Tracy stated that for several months she had been driving him to work once a week. On 29 August 2019, Mr ZA threw a chair in the office, and put two fingers to his head as if he wanted to shoot himself. Ms Tracy asked him to come into the boardroom away from the rest of the staff to try and find out what was wrong and to calm him down. Mr ZA stated that he wanted to go back to his hometown and didn’t see the point in going on. He also said that when he drives, he speeds and doesn’t indicate because what does it matter if he has an accident?

[31] Ms Tracy immediately advised Mr Findlater and Ms Duncan of the above incident. Ms Duncan stated that Ms Tracy should ring BeyondBlue and get Mr ZA to speak to them, which she did. Ms Tracy stated that after several discussions with Mr Findlater, Ms Duncan and Mr Bridger, it was agreed that the Respondent would assist in having Mr ZA see a psychiatrist, then a psychologist and he was encouraged to see his own doctor for assistance.

[32] Ms Tracy’s evidence is that Mr ZA began to ignore her, even with work-related issues. Ms Tracy informed Mr Findlater of this and he responded that Mr ZA blamed Ms Tracy for the fact that he needed to visit doctors, causing him concern that he might lose his gun license.

[33] During the hearing, I asked Ms Tracy whether she contacted Mr ZA’s psychologist and why? She answered as follows: 6

“Well, Chris asked me to make the original appointment for [Mr ZA], that's why I rung up and made the appointment to get him in that day. (Indistinct) and they just said that there was nothing they can say, let him see someone else. So that's when I spoke to them about it. None of his details were discussed. I have no idea. I think the most they said was perhaps the doctor. But no details were discussed, no reason, no nothing. So the original one was made because I was asked to contact them to make the appointment. That's all.

Then the following one I did take [Mr ZA] into a private room; the board room must have been - because I didn't want the whole office to hear and he said he'd make his own appointments, which is not a problem. Chris was in that day, and Chris called for the meeting and that's when it came up about - Chris said to him, you will not lose your job, you will not lose your gun license and a lot of the other things were discussed…”

[34] Ms Tracy stated that on 7 November 2019, in the workplace she asked Mr ZA a question three times, and after he ignored her, she asked him, “Are you deaf?”. He replied that she was a raging bull and that she had better watch herself. Her evidence is that he made that statement with real malice and hatred. Further, Mr ZA said to her, “We all know what you are… you’re a vindictive narcissist, and you better look that up”. Ms Tracy replied that she knew what it meant to which he replied, “I bet you do”. Ms Tracy stated she went home early that day as she felt threatened.

[35] Ms Tracy stated that she met with Mr Findlater and Mr Bridger the next day to explain what had happened. She requested Mr ZA be given a written warning as she felt threatened in the office. Her evidence is that Mr Findlater said he didn’t want to do anything just in case it set Mr ZA off and he came in and shot them.

[36] Ms Tracy’s evidence is that apart from a meeting on 8 November 2019, at no stage throughout the dealings with Mr ZA was there any conflict resolution undertaken. Ms Tracy asked Mr Findlater what could be done about the situation, for example could they have a meeting with Mr ZA to sort things out? Mr Findlater stated that they should stay away from each other, and they would need to continue to watch Mr ZA as they didn’t want to set him off again.

[37] It is Ms Tracy’s evidence that on many occasions Mr ZA would walk past her desk to leave the office, and he would say words to the effect, “Still here, you won’t be for long, narcissist”. Ms Tracy acknowledged that on some occasions she snapped back at him.

[38] In cross-examination, with respect to an allegation that Ms Tracy called the police about Mr ZA, the following exchange occurred: 7

Mr Findlater:	All right. The next question is, did you come along to me and say, at one point, "I have rung the police about [Mr ZA] and they didn't want to respond.
Ms Tracy:	No.
Mr Findlater:	Because I very, very, very clearly remember you doing that.
Ms Tracy:	No. Why would I ring the police?
Mr Findlater:	And if you look at [Mr ZA]'s witness statements, you said to him several times, "Are the police here yet?" You know, obviously [Mr ZA] will talk about this later. Did you say that to [Mr ZA]?
Ms Tracy:	No, I did not.
Mr Findlater:	And you're saying you never talked about getting the police to me.
Ms Tracy:	I did not talk about getting the police at all.
Mr Findlater:	You’re very, very sure on this?
Ms Tracy:	Yes. Why would I get the police involved? (indistinct), but no. I never said anything.

[39] In reply to the evidence of Mr Findlater that Ms Tracy might have been experiencing stress due to experiencing domestic violence, Ms Tracy stated that she had experienced domestic violence, however it was around seven to eight years ago and was irreverent to this matter.

[40] In reply to the evidence of Mr Findlater that Ms Tracy was in a car accident and wrote off her car, Ms Tracy stated that this was incorrect. She provided a copy of correspondence from her insurer indicating that the vehicle was repaired and not written off.

[41] With respect to Mr Findlater’s evidence that Ms Tracy attempted to undermine Mr Bridger by stating, “None of the employees liked Simon”, Ms Tracy denied this and stated that it was Mr Loo who had said that. 8

[42] Ms Tracy submitted that she seeks the following remedy:

(a) Five weeks’ notice and superannuation;

(b) Pro-rata long-service leave and superannuation;

(d) 14 hours pay that was taken from her annual leave and not sick leave for 19 March 2020 and 20 March 2020; and

(e) Additional superannuation payments on paid leave of 141.74 hours, which was paid out on termination.

Evidence of the Respondent

Evidence of Mr Christopher Findlater

[43] Mr Findlater made a witness statement and appeared and gave evidence at the hearing. He stated that Ms Tracy was responsible for office administration, incoming calls, accounts receivable and contract management.

[44] Mr Findlater agreed that Ms Tracy’s role involved some difficult work including many stressful calls from customers. He contended, however, that Ms Tracy had personal circumstances in her life that caused her stress and were not work-related. He suggested that this included domestic violence with partners resulting in major surgery, heart conditions, tendon injuries requiring surgery and vehicle accidents. Mr Findlater stated that the most recent vehicle incident was a total write-off of her car.

[45] Mr Findlater stated that prior to 18 March 2020, there had been several meetings over the past eight months to reconcile conflict between Ms Tracy and Mr ZA relating to an incident in August 2019. In all these meetings Ms Tracy kept insisting that she felt threatened by Mr ZA, but in Mr Findlater’s view there was no evidence to support this. He stated that all medical consultants that Mr ZA saw confirmed that he was suffering from anxiety attacks relating to harassment from Ms Tracy.

[46] Mr Findlater took exception to Ms Tracy’s reported statement in late 2019 that “none of the employees liked Simon”. He stated that he investigated this issue by performing extensive interviews with all staff. He concluded that there was no basis for her claim and in fact the employees were supportive of Simon. There is no evidence before the Commission as to who claimed that Ms Tracy made such a statement.

[47] Mr Findlater stated that he held a meeting with Ms Tracy on 18 March 2020 to discuss the impacts of COVID-19 on the business operations. He considered that the meeting started amicably and was not unusual and no more stressful than any other meeting. The meeting concluded and as Ms Tracy went to leave the room, he asked her if she was keeping away from Mr ZA in accordance with the previous understanding. Mr Findlater stated that: 9

“This question resulted in a complete tirade and I was asked ‘why [Mr ZA] was still working at Ironbark’. I stated that [Mr ZA] was a valuable employee and had an important role in the company operations.

This then led to Paula implying that you needed to choose between her or him. I suggested if that was the way she felt then she could look for another job.

Paula then asked ‘am I being dismissed? ‘. The answer was NO.

At this moment Paula had not been dismissed and no dismissal was considered at this point.”

[original text and emphasis]

[48] Following the meeting Mr Findlater immediately contacted Ms Duncan, the Bookkeeper who was a longtime friend of Ms Tracy. He requested Ms Duncan telephone Ms Tracy and calm her down and find out what the outburst was about. The feedback Mr Findlater received from Ms Duncan was that Ms Tracy intended to make a workers’ compensation claim. Mr Findlater informed Ms Duncan that he would not support the claim and she should return to work on 20 March 2020. Mr Findlater noted that the Respondent lodged a “successful objection” to the workers’ compensation claim with WorkCover Queensland.

[49] Mr Findlater stated that if Ms Tracy was unable to fill the role then alternative arrangements had to be made. It was then discovered that Ms Tracy had sent “sensitive company documents” being employee emails about doctor appointments relating to Mr ZA to an external email server on the evening of 19 March 2020. Mr Findlater considered that this violated employee confidentiality agreements and compromised security policy declarations with the Australian Taxation Office (the ATO). He stated that the Respondent is a supplier of One Touch Payroll Software and as such it has very stringent security policy guidelines.

[50] Mr Findlater stated that the following actions of Ms Tracy lead to a decision to terminate her employment:

(a) Unauthorised and unwarranted leave in a time of crisis;

(b) Unauthorised downloading of confidential company information; and

(c) The ongoing conflict with another employee, Mr ZA since August 2019 despite many attempts at reconciliation with no evidence of improvement. 10

[51] In cross-examination, with respect to whether Mr Findlater attempted to contact Ms Tracy after 18 March 2020, the following exchange occurred: 11

Ms Tracy:

….. You also state I made no attempt to reconcile or explain my actions. Well, I was not aware I was terminated until 11 days after. Chris, you never contacted me to ask why. You just terminated me. Is that correct?

Mr Findlater:

I think I attempted to contact you through Maggie. I did not have your contact details, other than your mailing address. Secondly, I think as I stated in the previous examination of your statement, that you were well aware of the situation because you'd spoken to Maggie, and I'd talked to Maggie regarding pay conditions and what you were going to get for leave and all this sort of thing. So, to say that you weren't aware is - I just don't understand that. The second is that you were not formally dismissed as a letter. Although it related to the 20th, you were not formally dismissed until - as far as I could - I had several meetings with senior management here. With Maggie. With Simon. It wasn't until we discovered the emails that I actually decided to fire you. You were not fired in that meeting. There's absolutely no evidence to suggest that you were dismissed in that meeting, even though you'd stormed out. All we said is that this was not - it was totally fabricated. In fact, workers comp refused to pay you, and still haven't paid you, because they believe me. There's no evidence to suggest that you were stressed, or anymore stressed than you had been for the last eight months. In fact, you should have been less stressed. I find it rather strange to say that all the excuses - not excuses, all the reasons I would have said that you were stressed, that is operations, blah, blah, blah, car crash and so on, you're saying, well, nothing to see here, that wouldn't have stressed me. I would have been stressed if I had heart surgery or whatever. Yet, this meeting suddenly becomes a huge blow-up. I'm still confused. I still don't know why. You still haven't explained to me why you were so upset that morning. From a simple comment of, you know, are you keeping away from [Mr ZA]?

[52] Following the question put by Mr Findlater to Ms Tracy set out above at [28] about whether she knew she would be dismissed if she didn’t return to work, I asked Mr Findlater the following: 12

Commissioner:	….. So, Mr Findlater, you were suggesting that Ms Tracy should have known that if she didn't attend work either on the Friday, or earlier next week, she should know that she was being dismissed?
Mr Findlater:	Well, she’d have to be pretty thick if she didn’t get that message……

[53] With respect to Ms Tracy’s submission that no meetings were arranged to attempt to reconcile the issues between her and Mr ZA, the following was put to Mr Findlater: 13

Ms Tracy:	I asked for a meeting. Your response was to just stay away from him. That's not reconciliation, as far as I'm concerned. I was never, ever, given any formal mediation, formal warnings, nothing.
Mr Findlater:	Look, maybe you should have asked to go and see a psychologist with [Mr ZA].
Ms Tracy:	That’s unfair.
Mr Findlater:	Maybe we were looking at the wrong person. Maybe we should have been looking at you instead of [Mr ZA].

[54] During Mr Findlater’s cross-examination, with respect to Ms Tracy’s absence from work on 19 and 20 March 2020, the following exchange occurred: 14

Ms Tracy:

Chris says about my actions, unauthorised and unwarranted leave in a time of crisis. I didn't take leave, I took sick leave because I was - what was said. The build-up and my heart condition and the state I was in. The ongoing conflict …

Commissioner:

Hold on a moment, Ms Tracy. What does it mean, Mr Findlater, if somebody has to take two days off work and is certified unfit by their doctor?

Mr Findlater:

I'm looking at the work certificate, the claim for workers' comp, and in that it states the reason for the stress leave was workplace bullying and harassment.

…..

[55] During the hearing, at my direction Mr Findlater sent a copy of Ms Tracy’s workers’ compensation work capacity medical certificate to my chambers, and the above exchange continued: 15

Commissioner:	I'm dealing with her going on leave. Your termination letter says, "Your decision to take stress leave and proceed with workers compensation has been made without consultation with management at Ironbark Software and will be vigorously opposed." So, she needs to consult with you, does she, to go on stress leave?
Mr Findlater:	Well, Paula had - this isn't something new. She's done this several times before. And I think one of the other witness statements I've seen, that she stormed out of the office a couple of times with Simon and said I'm taking the rest of the day off. So, we were pretty used to Paula storming out of the office and having a little bit of a tiff. That's all I thought it was. I was quite prepared to wear it, just as I have for the last eight months, her behaviour. Unfortunately, when I learned on the Friday, the evening of the 19th, that sensitive information had been downloaded, I said, well, all right, we've got to take this seriously. At that point I started getting some legal advice.
Commissioner:	At paragraph 4 of your written submissions, you say that one of the reasons for the dismissal was her unilateral decision to take leave without the consent of us and prior consultation.
Mr Findlater:	Yes.
Commissioner:	So, an employee needs to obtain permission, do they, they need to obtain consent to take leave, do they, if they are unwell? I don't need you to laugh at my question to you, Mr Findlater. It's unusual to answer me with a laugh.
Mr Findlater:	In the context of - this was just not any Friday or any Monday or Saturday, or whatever. It was the day that we were about to go into lockdown. The office was about to be closed. It was a one in a hundred years sort of event. We needed everybody on the ground. Paula really did a strategic strike on us. I think that is what I'm talking about.
Commissioner:	So, you're a doctor, are you, Mr Findlater? She's gone to a doctor who has certified her unfit for work.
Mr Findlater:	No, he didn't. He just said it was workplace bullying and harassment. And I think you need to look at that certificate. …..
Commissioner:	It's not a usual certificate. Normally it would have a date, or something like that. But that's what it says. It's a little bit hidden within all of that text. I appreciate that. But the workers' comp certificate says no capacity until reassessed, which is then read to be 11 April.
Mr Findlater:	Now, we then received client information on that, which it sounds like you haven't got a receipt of the workers' comp actual claim. That was …
Commissioner:	So, Ms Tracy is dismissed on 20 March. It sounds as though she then made her workers' comp claim later than that date. What you know on 20 March, Mr Findlater, is that she has a workers' comp certificate. That's all you know. You don't even have receipt of this certificate yet, do you, by 20 March.
Mr Findlater:	No.
Commissioner:	But you told Ms Duncan to inform her that unless she gets back to work, she won't have a job.
Mr Findlater:	Well, I put it - no, I said specifically that we would have to look for somebody else to replace her. In that, I didn't know how long she was going to be away for. We really needed someone to maintain our communications system. Staff would be moving out of the office and somebody had to take the phone calls. So, we had to find someone. And that's all I stated. That if she wasn't back on Friday, we would have to seek an alternative. I mean, that's not unreasonable.
Commissioner:	That meant dismissing her, didn’t it?
Mr Findlater:	No, it didn't. At no time up until when I saw that email downloaded did I ever say she was dismissed. In fact, I specifically state that, in the termination letter, as one of the conditions, that it was the downloading of the emails which was the serious misconduct, which was the dismissal.

[56] During the hearing, I asked Mr Findlater when he made the decision to terminate Ms Tracy. Mr Findlater answered, “I made the decision on the following week. It probably would've been about, what, four or five days after the 20th, so about the 23rd or 24th, and that was based after seeing all that information and talking to some legal counsel on it.” I asked Mr Findlater why the letter was dated 20 March 2020; he answered that he made it retrospective to the date Ms Tracy did not return to the office. 16 It became clear in further questioning that Mr Findlater prepared the letter on 23 March 2020 as per the data properties of the document.17

Evidence of Mr Simon Bridger

[57] Mr Bridger made a witness statement and appeared and gave evidence at the hearing.

[58] On 18 March 2020, Ms Tracy left the office, upset, after having met with Mr Findlater. Ms Tracy came to see Mr Bridger and said she “won’t be in for the rest of the week”, without indicating the reason.

[59] On 20 March 2020, Mr Bridger was following up on accepted quotes and remittances for Ms Duncan in Ms Tracy’s absence. He was checking to see if other client-related emails had been forwarded to the necessary parties. Whilst investigating, he found that Ms Tracy had sent emails on the previous evening, 19 March 2020 to a personal email address about medical appointments for another employee, Mr ZA. Mr Bridger informed Mr Findlater and Ms Duncan and screenshotted the emails.

[60] Mr Bridger’s evidence is that Ms Tracy had been given remote access to her inbox and VPN on account of the Respondent’s reaction to the COVID-19 pandemic, for planning for working from home.

[61] Mr Bridger stated that the medical appointments sent externally related to issues surrounding the interactions between Ms Tracy and Mr ZA, which had been ongoing since late August 2019. He observed that between August 2019 and March 2020 their relationship had deteriorated from what used to be friendship to a complete inability to work together in a cohesive manner.

[62] Mr Bridger contended that the email sent by Ms Tracy to the doctor in relation to Mr ZA “did not take an approach of care, but unfairly tried to paint a picture of [Mr ZA] not based on reality”. 18 During Ms Tracy’s cross-examination of Mr Bridger, I asked the following questions of Mr Bridger:19

Commissioner:	Is it your contention that they were sent by Ms Tracy to the doctors?
Mr Bridger:	Well, I guess when I relooked at that email today, she had forwarded them to Maggie and Maggie had just passed them through to the doctors, when I looked at that email. But yes, I just you know, that email is what - the email that I'm referring to is the email that was forwarded on to the doctor.
Commissioner:	Right, but Ms Duncan did more than that, didn't she? She did more than forward Ms Tracy's email, she had some things to say, didn't she?
Mr Bridger:	I don't know what she said.
Commissioner:	……… So, it's Ms Duncan who writes: It's the office is walking on eggshells the moments we've written down below an insight into what is going on. He's a good programmer but we are very concerned about his mental health. Was that something that you were in agreement with at this time?
Mr Bridger:	Well, I didn't know about the content of either of those emails until I, you know, saw that they'd been forwarded to some Hotmail address.

[63] During re-examination, Mr Bridger stated that other than informing Mr Findlater of the emails discovered he did not have much else to do with the decision to dismiss Ms Tracy. 20

Evidence of Mr ZA

[64] Mr ZA made a witness statement and appeared and gave evidence at the hearing. Mr ZA’s witness statement set out a timeline of events related to his interactions with Ms Tracy and what he described as her hostility towards him. Mr ZA stated that the account of events is recorded due to advice and assistance that he has received that he had been abused in the workplace by Ms Tracy. The timeline as set out by Mr ZA is reproduced below: 21

(a) Mid 2019

“Simon came to me with the idea of carpooling with Paula for someone to talk to. I thought it would be beneficial if not just for not having to deal with traffic myself. Having someone to talk to about things could be useful. Inevitably the carpool arrangement was not ideal, as the communication always was one way, with Paula talking.”

(b) 29 August 2019

“arrived at work frustrated by the traffic and drive to work. Talking with a colleague about how disrespectful the way others drive in traffic and their approach to merging, I remarked that maybe I should do the same. I lashed out at a chair (punching the back) in response to where the frustration had gotten my mental state – the chair was knocked over in the process. Paula Tracy took me to the conference room. I remarked along the lines of “I didn’t want to live this life any more”. I had meant this way of life rather than the interpretation of living in general.

Paula Tracy called Beyond Blue and had me talk to them. I went back to work, and what followed was that a visit to a psychologist was organised for me in the city that afternoon. As I get nervous when I am in traffic in dense and built up areas (i.e. the city) I took a cab. I had told Paula that I was anxious about how to get there and where to park, as I was going to find the city stressful. Paula got short with me, and later when I was checking google maps for the journey directions Paula snapped at me: “You could just put it in your phone!” After this first visit to the Psychologist, Paula said that I need to go another three times, this was subsequently changed to 6 sessions. I submitted to these instructions, concerned for my job, but started feeling like what she was doing was not right or reasonable.”

(c) 11 September 2019 (Company BBQ)

“Whilst preparing the to cook the BBQ I had moved the bin to help with my dispensing of rubbish closer to the BBQ area.

Paula: “What’s this?”
[Mr ZA]: “A bin, so I can throw things in it!”
Paula: “There won’t be anything to throw out”

Paula subsequently moved the bin back to the other side of the kitchen. I was extremely perplexed what I was not understanding in this situation and why someone would do this. I then had to traverse the kitchen each time I emptied a container, or it would blow away.”

(d) 11 September 2019

“Paula informed that she had spoken to the psychologist and they had recommended I see a psychiatrist.

[Mr ZA]: “Ok, I am going to find out for myself”

I walked off to call the doctor, to:
a) Confirm this detail
b) Determine why they had spoken to the doctor I saw about my own health matters. Paula’s reaction was to, in a panicked manner, draw Chris Findlater into this conversation, at which point all three of us met in Chris’ office.”

(e) 17 October 2019

“Paula called out across the office to see if anyone was working on a specific Clients site. I was, but didn’t call out as I was not ready for a phone call. Paula came to my desk to ask me if I was working on said Client, I said yes. Paula (in a very aggressive and condescending manner): “Don’t you have a voice? Why didn’t you answer me when I shouted out?” This was humiliating, and I felt it was unprofessional, not an appropriate way to remediate the situation.”

(f) 7 November 2019

“I arrived at work early just after Paula, after parking (we park next to each other) I was focusing on and checking the battery level of my [vehicle] (an ongoing issue). Paula appeared to storm off. When inside the office and putting my lunch away Paula and I had another incident. Paula left the kitchen and remarked “I suppose you’re deaf too!”. I responded by asking what she was talking about. Paula said that she had said good morning twice (once in the carpark, and once in the kitchen). I did not hear her in either case.

We proceeded to argue over these facts. I called her a liar. Paula responded: “Don't say that about me!”. The way she said it, and the look on her face told me that

1 – what I was saying was exactly the truth, and that she could not handle it, and

2 – she believes that she is entitled to control what other people say.

I tried to de-escalate the conversation twice:

[Mr ZA]: “OK, let's start again as reasonable people.”
Paula: “Ohhhh no, no.” (In a defiant tone that would never accept anything but having her way.)

I let her know that I knew what kind of person she is, from experiencing her covert abusive behaviour.

Paula: “What am I? What am I?”
[Mr ZA]: “You’re a manipulative narcissist.”
Paula: “You watch yourself from now on!””

(g) 3 December 2019

“Paula again abusing me for not answering to her shouts across the office. Paula had called out asking who was working on a particular client. I responded, and others also re-iterated my response so that it was heard. Paula: “I can’t hear you! I can’t hear you! I need you to speak up!”. It was clear she had heard the response but would not accept anything less than me specifically yelling out across the office the same response she already had. Shouting across the office about these matters is completely unnecessary. Patrick Loo who was behind me for this whole incident, said I should take a walk to clear my head.”

(h) 16 December 2019

“I arrived early work on a Monday to get a head start on my work. As I approached the entrance to the office Paula walk out and said: Paula: “Have the police been around yet? Because they will be!” in a threatening tone. I immediately tried to contact Simon Bridger, and then Chris Findlater. Paula refuted this ever happened. At this point I started recording my conversations at work. In a discussion with Simon, I was asked to come into work later to prevent situations where I would be alone with Paula.”

(i) 3 January 2020

“Whilst in the lunch room, Paula came in and proceeded to steer the topic of conversation towards the Ironbark clients.

The discussion went on for an hour and a half, and this was after Paula had already had her 12pm lunch hour. Paula said at the end: “You three (meaning everyone but me) can just put this down as a meeting in your timesheets.””

(j) 6 February 2020

“Paula puts through a call to me, before indicating who it was or why they were calling.”

(k) 5 March 2020

“I have a sore neck. Paula brings a package over to me, and I can’t turn my head to look at her as she describes (in unnecessarily excessive detail) a client’s requirements for the package. She leans over into my vision and says “I'm up here!””

(l) 12 March 2020

I spoke to Simon Bridger about getting a letter requesting to be removed from Jury Duty selection. Simon followed up with Paula and Chris to arrange. Paula came over to my desk and the following occurred:

Paula: “Where’s your Jury Duty letter?”.
I asked which part she needed, and she responded with

Paula: “I’ll take all of it.”.
A few minutes later Paula called my desk phone:

Paula: “Where’s the envelope?”

[Mr ZA]: “Ahh (thinking) it’s at home.”, Paula immediately hung up before I could say more. I called her back, saying that I just needed the letter to send my form back.

Paula: “Yeh I know!”, and she immediately hung up again.

Paula, then brought over my requested letter and snapped:
“Send this letter with it.”

(m) 17 March 2020

“Paula joined our lunchroom break, and spent the entire time, talking about firearms ownership, stating something along the lines of: “some people shouldn’t have them”. She reiterated this several times and it seemed to be the sole reason for starting the conversation. [redacted so as not to identify]. Damian Atkinson said there were some legitimate reasons like sports and farmers on top of the police and military, but Paula just reiterated that she thinks some people shouldn't have them. It seemed to be the only point of the conversation for her and it was a conversation that no-one, but Paula really had any interest in continuing. I stayed out of the entire conversation as it seemed like a clear attempt to antagonise me. I think Hayden Bird may have found it an odd “conversation” and looked at me a couple of times during it. It is especially interesting as she has previously expressed to me an interest in going to try the shooting sports.”

[65] During cross-examination, I noted to Mr ZA that there is evidence before the Commission that Ms Tracy sent to Ms Duncan a list of various concerns that she had about him and Ms Duncan then forwarded that on, copying in the psychologist in October 2019, relevant to his appointment on the 25 October 2019 stating that “the office is walking on eggshells” around him. I put it to Mr ZA that it was the Respondent company, not necessarily Ms Tracy who was informing the psychologist for his appointment in October 2019 that there were concerns about his mental health, and that it was Ms Duncan who wrote the email about the Respondent’s concern. Mr ZA stated that Ms Duncan was wrong about the office walking on eggshells around him. 22

[66] During the hearing, I put it to Mr ZA that it was Ms Tracy’s evidence that on many occasions when he left the office he would walk past her and say things such as “still here; you won't be for long” or “narcissist”, and on occasions she has snapped back and said something to him. The following exchange occurred: 23

Commissioner:	So what do you say about that?
Mr ZA:	I have never done that. That is not who I am; I don't do that.
Commissioner:	You agree that you did call her a narcissist on another occasion?
Mr ZA:	In an argument where I finally realised what was going on with her, yes I did and it was actually a bang on accurate description of what she is. Because I've been reading a lot and learning a lot about what's going on and that's what stopped me from reacting to the abuse that I was undergoing. Finding out what I was (indistinct). And when I knew what I was dealing with, that there was actually something wrong with her personality that she couldn't control, narcissistic personality disorder, then I started to let got of, yes okay, so it's not really personal against me, it's just the way this twisted sort of personality is.

[67] With respect to Ms Tracy’s evidence that he had threatened to kill himself by putting two fingers to his head, Mr ZA denied that this ever occurred. 24

[68] During the hearing I asked Mr ZA questions concerning the bullet points set about above at [15] in the email prepared by Ms Tracy, as below: 25

Commissioner:	So, I'll ask some questions here. So [Mr ZA], in terms of what Ms Tracy put to Ms Duncan to be put to the psychiatrist, there's a number of things. Apparently, there was an assertion that you smashed trays at work, kicked and threw a chair. What do you say about that?
Mr ZA:	No. I knocked over the chair by punching it in the back, that's what precipitated me seeing the psychologist and all this event of, you know, the whole thing.
Commissioner:	Had you on an earlier occasion smashed trays at work?
Mr ZA:	Smashed trays at work. Not that I can recall.
Commissioner:	Ms Tracy, what do you say was that occasion?
Ms Tracy:	Sorry. The trays were like the filing trays and that was quite a few years ago when we were in our old building and [Mr ZA] cut himself in several places because (indistinct) and Simon was aware and also at the time, Melissa Davon who was the general manager, because I had to tell them, what happened. I told [Mr ZA] that I had to (indistinct), yes because he cut himself in several places.
Commissioner:	Do you recall that [Mr ZA]?
Mr ZA:	Yes, I think so. Yes, I think I do remember those plastic things underneath the motor. Punched the back of it and it broke and it cut my hand.
Commissioner:	Right, so Ms Tracy also made notes there that relevant to the punching of the chair, that you had threatened to kill yourself by putting two fingers to your head. You've earlier denied that?
Mr ZA:	Yes, I didn't do that.
Commissioner:	That you have said to her that people who are on the road are inconsiderate and now you don't indicate, you speed and if you die, so be it?
Mr ZA:	No, that's not what I said. I said you know, people driving is like pretty much a reflection of society. Yes, but people aren't considerate, they don't do the right thing, they just speed, they just change lanes whenever, don't indicate, all that sort of stuff, so I said I was just going to be like everyone else. I didn't say I was going to speed; I was going to do whatever I want, that I was just going to do what everyone else does. Then that's why I punched the chair because I knew I'm not that kind of person, and it frustrated me. I punched the chair, felt stupid about it, picked it up and that's the extent of that. How other people going to believe what I'm thinking is up to them, cause what I'm thinking is what I'm thinking and they have no idea.
Commissioner:	She also recorded that you had said that if you lose your guns, then life is not worth living, as they're the only things that make you happy?
Mr ZA:	I don't know if I would have said that. That's the biggest part of my life, you know. I've been a sporting shooter for 15 years. Yes. I don't want to lose that. The pressure to….
Commissioner:	Do you recall if you said that?
Mr ZA:	What you said, no, I don't think I would have said that. I don't recall saying that and that doesn't sound like a thing I would say. …..
Commissioner:	It was reported also that you worry about things and that you lay awake at night worrying if neighbours were going to make noise?
Mr ZA:	Well, currently the neighbours we have are getting evicted because they've been disturbing the peace of all the neighbours around me. They get up at like 2 o'clock in the morning and smash things around so loud, it sounds like things are being slammed in my house. This is in a duplex, townhouse, whatever. So yes, that has been waking me up at night, keeping me awake. Lately it's been better, but hopefully they'll be gone soon and it won't be a concern of mine anymore.
Commissioner:	So you agree, you said that?
Mr ZA:	No, I don't lay awake at night wondering if they're going to make noise. It makes it harder to go to sleep, if I'm going to be woken up in the middle of the night with some banging crashing, yelling and screaming about people yelling that they hate their life and get out, get out, get out. (Indistinct) crash weirdos.
Commissioner:	Well, Mr Bridger he understood your information about your neighbours that you had said something to that effect to him. So had you said that to Ms Tracy?
Mr ZA:	Had I said what, that I lay awake at night wondering if they're going to make noise?
Commissioner:	Yes?
Mr ZA:	I don’t think so, not that I can recall.
Commissioner:	That you've informed her that you don't want to go on any medication. ….. So she asserts that this was said by you to her and I'm trying to understand if you agree?
Mr ZA:	I might have said that in the past, but yes, definitely don't want to take drugs to change who I am.
Commissioner:	That you should have stayed in Cairns - she questions whether that was where you were from. That you took drugs, drank and got a slut pregnant?
Ms Tracy:	Sorry, can I just interrupt. That he took drugs, but he – I meant to say he should have taken some drugs, got drunk and got a slut pregnant. That’s what he said to me I the car one day when we were coming in.
Commissioner:	Right, so should have done all those things.
Ms Tracy:	Yes. Should have stayed in Cairns, took drugs, got drunk.
Mr ZA:	Yes, something like that. It was a statement of my frustration with the effort, you know, that I've put into life and the results I've gotten out of it. I shouldn't have bothered coming to Brisbane. I come to four years of double degree at University, you know, try to find work, do all that sort of stuff. Probably would have had a much happier life if I had have just muddled along, just cruise along, been a dole bludger. So yes, in another statement of just how frustrating life is.

Evidence of Ms Margaret Duncan

[69] Ms Duncan made a witness statement and appeared and gave evidence at the hearing.

[70] Ms Duncan stated that on 18 March 2020 she rang Ms Tracy in the morning with regards to work related issues and she was in good spirits. Later that day she had a missed call from Ms Tracy. Ms Duncan called her back and stated that Ms Tracy was now in severe distress, crying and upset. Ms Duncan asked her what was wrong, and she told her that she had an argument with Mr Findlater in relation to Mr ZA and had walked out of the meeting but was still in the office.

[71] Ms Duncan said to Ms Tracy she should try and calm down and asked her if she was OK to drive? Ms Duncan stated that she should go home as she was in no condition to work and to take the rest of the day off, and that she would talk to Mr Findlater. Ms Duncan’s evidence is that Ms Tracy stated several times during the call that she loved her job and would not be bringing a workers’ compensation claim, but was upset that Mr Findlater was not taking her side with the issues going on between her and Mr ZA.

[72] Ms Duncan spoke with Mr Findlater in the afternoon and told him she sent Ms Tracy home, as she was too upset to work that day. Mr Findlater said to Ms Duncan that if Ms Tracy wanted to take two days’ off then it would have to come out of her annual leave and if she did not come back to work by Friday then he would be looking for somebody to replace her. Ms Duncan telephoned Ms Tracy that afternoon and informed her of her conversation with Mr Findlater.

[73] Ms Duncan tried to telephone Ms Tracy on 19 March 2020 as she had to do the payroll and wanted to know if she was sick or was taking annual leave. Ms Duncan did not hear from Ms Tracy by 10:30am, so she took two days’ from Ms Tracy’s annual leave balance as she felt she had to follow Mr Findlater’s directions.

[74] At approximately 11:45am on 19 March 2020, Ms Duncan and Ms Tracy spoke, where Ms Tracy informed her that she had been to the doctor and would be claiming for stress leave. She indicated she would send the claim from the doctor. Ms Duncan understood that the doctor had “given” Ms Tracy a week off, and it would be reviewed in another week. Ms Duncan informed Ms Tracy that she had already done payroll and taken the leave from her annual leave balance.

[75] Ms Duncan did not receive an email about Ms Tracy’s stress leave until 20 March 2020. Ms Duncan noted that Ms Tracy sent the email from Mr Michael Tracy’s email account, and she forwarded this correspondence onward to Mr Findlater and Mr Bridger.

[76] Mr Findlater asked Ms Duncan to look up “Fair Work” in relation to Ms Tracy’s breach of confidentiality and found that no notice would be paid to Ms Tracy on termination if she was terminated due to misconduct.

[77] During cross-examination, Ms Duncan stated that she did not get the impression that Mr Findlater was going to dismiss Ms Tracy until after he discovered the emails that were forwarded by her on 19 March 2020.

[78] During cross-examination, Ms Duncan stated that she requested Ms Tracy write the correspondence about Mr ZA of 18 October 2020 set out above at [15] to send to the psychologist so that the psychologist knew about the problems. 26

Submissions of the Respondent

[79] The Respondent submitted that the the lodgement of the complaint against the Respondent for unfair dismissal relates to a series of events that started in August 2019 and concluded in March 2020.

[80] It was submitted that Ms Tracy was dismissed on 20 March 2020 for:

(a) her actions in forwarding sensitive internal emails concerning the mental health and medical appointments of a fellow employee, Mr ZA to her husband, Mr Michael Tracy, on 19 March 2020 without the knowledge or consent of the Respondent;

(b) her continued bullying of Mr ZA up to and including 19 March 2020, of which her unauthorised dissemination of the above described emails is properly to be regarded as a part; and

[81] The Respondent contended that that Ms Tracy’s actions as described above, taken collectively (or as regards to the unauthorised dissemination of emails, separately) constituted serious misconduct and justified her summary dismissal.

Breach of confidentiality

[82] It was submitted that Ms Tracy’s unauthorised dissemination of emails concerning Mr ZA’s mental health and medical appointments was a gross breach of trust and a breach of her express obligations of confidentiality. The Respondent noted that Ms Tracy claims she forwarded the emails:

(a) in ignorance of her duty of confidentiality;

(b) to her personal email address;

(d) on the advice of WorkCover Queensland.

[83] The Respondent submitted that Ms Tracy’s claims about the forwarding of the emails, as above, are disingenuous and a blatant lie. 28 The Respondent further submitted that Ms Tracy is well aware of her duty of confidentiality as an employee because she signed an “Employee’s Deed of Confidentiality” and part of her role had been ensuring that each new employee signs a similar deed.

[84] Copies of Ms Tracy’s “Employment Agreement” dated 27 September 2010 and “Employee’s Deed of Confidentiality” also dated 27 September 2010 were annexed to the Respondent’s materials. It is noted that Clause 2(4) of the Employment Agreement provides a definition of “Confidential Information”, as below:

“ “Confidential Information” means any information is respect of the Company, a related entity of the Company or their business (including but not limited to, any idea, concept process or know-how) which is not in the public domain (other than as a result of a breach of the Company’s (or a related entity’s) confidence) which:

(a) has come or comes to the Employee’s notice in the course of the Employee’s employment; or

[original text and emphasis]

[85] It is also noted that Clause 2(1)-(6) of the Employee’s Deed of Confidentiality provides:

“Confidentiality Undertaking

The Employee must both during and after employment with the Company:

(1) treat as confidential all Confidential Information;

(2) take all reasonable and necessary steps to safe guard the confidentiality of Confidential Information and ensure it is not disclosed to any third party whether by itself or another person otherwise than in accordance with sub clause (4) below;

(3) not use, copy, memorize or reproduce in any manner or reverse engineer or disclose or authorize the use of Confidential Information;

(4) not disclose Confidential Information to any person or company without the prior consent in writing of the Company other than:

(a) in the ordinary course of business and for the exclusive benefit of the Company; or

(b) as required by law;

(5) not use Confidential Information for participation in any way related to a business that is in competition with the Company or to gain employment from any of the Company’s clients or competitors once the Employee ceases employment with the Company; and

(6) refrain from using or attempting to use Confidential Information in any manner which may cause or is calculated to cause injury or loss to the Company or an associated entity.”

[original text]

[86] It was submitted that Clause 2 of the Employee’s Deed of Confidentiality contains an express undertaking by the employee to treat all “Confidential Information” as confidential, and not to use, copy, memorize or reproduce such information in any manner, and not to disclose such information to any person without the prior consent in writing of the Ironbark. “Confidential Information” is sufficiently broadly defined to include employee information (either as information relating to Ironbark’s business or as third-party information disclosed to Ironbark in confidence).

[87] The Respondent submitted that the contents of an email to a consulting psychologist requesting an appointment and the timeline of harassment submitted by Ms Tracy about Mr ZA further contributed to the decision to dismiss her. It was submitted that it “was obvious” that Ms Tracy had harassed Mr ZA and submitted unwarranted and untrue statements in the appointment email to the consulting psychologist. This email only came to light when examining the emails downloaded by Ms Tracy to external servers on 20 March 2020.

[88] The Respondent submitted that the emails in question were forwarded from Ms Tracy’s internal email address at Ironbark to her husband. Even if she in fact shares that email address with Mr Tracy, it is clear that Mr Tracy also has access to any emails she might have forwarded to that address. It was submitted that the suggestion that this was her personal email is therefore misleading.

[89] It was further submitted that the suggestion that Ms Tracy forwarded the email to herself for her personal use is also disingenuous as she had no need for the emails. The emails contained sensitive personal information relating to Mr ZA’s mental health and medical appointments. Such information could in no way be relevant for her “personal use”. It is submitted that the only conceivable “personal” purpose she might have had for forwarding such information to her husband was to use it as fodder for gossip at Mr ZA’s expense. In any event, the emails concerning Mr ZA’s personal sensitive health information plainly formed part of the Respondent’s employee records which Paula had no authority whatsoever to copy or use for personal purposes.

[90] The Respondent submitted that the suggestion that WorkCover Queensland counselled Ms Tracy to breach her employee duties, and to surreptitiously forward emails concerning another employee’s sensitive health information, is so improbable that it should be dismissed as a blatant lie. In any event, it was submitted that WorkCover Queensland does not have the authority to authorise employees to disregard their employment obligations and any such ill-conceived advice provides no justification for Ms Tracy’s conduct.

[91] It was submitted that the unauthorised copying and forwarding of Mr ZA’s sensitive health information was a gross breach of trust and was inconsistent with the continuation of Ms Tracy’s contract of employment with the Respondent. Given the nature of her role, Ms Tracy was necessarily entrusted with a great deal of sensitive personal and corporate information. It was submitted that her continued access to such information was inconceivable given her actions, and without such access she would have been unable to discharge the duties of the job for which she was hired.

[92] The Respondent submitted that, in all the circumstances, Ms Tracy’s conduct, taken individually or in conjunction with her prior bullying behaviour exposed the Respondent to an unacceptable risk of a legal claim from Mr ZA himself, not to mention the unacceptable cost that Ironbark might have been forced to bear had Mr ZA had a mental breakdown and been unable to be a productive member of the Respondent’s small, but expensive, team of programmers. It was further submitted that at all material times, Ms Tracy was well aware that Mr ZA was suffering from anxiety issues which the Respondent was taking great pains to manage in the interests of discharging its duty of care to Mr ZA and avoiding any legal claims, for example a workers’ compensation claim.

[93] In summary on the point of the alleged breach of confidentiality, the Respondent submitted that Ms Tracy’s conduct caused a serious and imminent risk to both:

(a) Mr ZA’s health and safety and, indeed if Ms Tracy’s claims are to be believed, the health and safety of Mr ZA’s other co-workers; and

(b) the reputation, viability and profitability of the Respondent’s business not only because it exposed the Respondent to a heightened risk of a legal claim from Mr ZA but also because Ms Tracy’s breach of confidence and security protocols undermined the Respondent’s reputation in the marketplace as trusted data repository and processor.

[94] In oral closing submissions Mr Findlater said the following:

“Without going over everything again, I think the key issue from my perspective is, as stated in the termination letter and according to the Fair Work Commission website, that this was serious misconduct in breach of confidentiality agreement and so on, and most of the conditions stated on the Fair Work website state that a lot of the conditions that Paula is trying to remedy are voided with that. Clear emphasis was put on that and our legal advice was that that was a clear breach of a confidentiality agreement and was immediate dismissal.

Paula's assertion that meetings and so on weren't received or acknowledgement - formal notifications and so on really don't apply on that case, and all those - a lot of those things relate to why she did it, her actual actions in downloading that were really the tip of - just the final straw really.

As to whether she would continue working here for ever and ever, I would - I think that's in her dreams. I think the ongoing events and the lack - the ill will that was developing in the business because of this interaction between her and [Mr ZA] was - I'll say it again - was toxic and something had to happen and she made it happen. To put it mildly, she made it happen. I would have - her job would have definitely ended with her long service leave, there's no doubt about that, no matter what she thinks.” 29

Bullying

[95] The Respondent submitted that it is equally notable that Ms Tracy’s breach of trust was targeted specifically at information concerning Mr ZA. It is submitted that such conduct forms part of an undeniable pattern of bullying towards a younger vulnerable employee with anxiety issues. Moreover, it appears to have been deliberately designed to exacerbate Mr ZA’s existing anxiety issues.

[96] It was submitted that it is notable that the emails also brought to the attention of the Respondent’s management, for the first time, that Ms Tracy had emailed Mr ZA’s medical practitioners an email trail listing Mr ZA’s alleged behaviour, mental issues and life circumstances. That list was compiled without consultation with or approval from management. It was submitted that the list is false and appears deliberately designed to paint Mr ZA in a negative light. The Respondent submitted that it appears to be part of a pattern of bullying behaviour directed against a vulnerable member of staff.

[97] It was further submitted that:

“Ms Tracy had aggressively harassed [Mr ZA] prior to 18 March 2020 with threats to ‘call police’ and in fact did so on more than one occasion full well knowing, [Mr ZA] was a licenced gun owner, member of gun clubs and a National Shooting Champion. The loss of his gun licence and hobby would have been taken as a very real threat. The police did not respond.” 30

[original text and emphasis]

[98] It was submitted that when the incident occurred in August 2019, the Respondent exercised all care possible including arranging or psychologists, psychiatrist, GP consultants and BeyondBlue. The outcomes were that no serious issues were evident in Mr ZA other than anxiety attacks as a result of interaction with Ms Tracy, yet Ms Tracy continued to agitate for dismissal of Mr ZA and also undermined Mr Bridger. The Respondent submitted that it should be repeated that at no time did the evidence of medical consultants indicate a threat from Mr ZA to other employees.

[99] The Respondent submitted in summary with respect to the alleged bullying that given the circumstances, Ms Tracy’s breach of confidence was not merely a breach of her duty of confidence but a deliberate flouting of an express direction from management to disengage from Mr ZA and to keep her distance. It was submitted that such conduct indicates a complete disregard for management and a repudiation of her employment contract.

[100] The Respondent also submitted that at no time did Ms Tracy seek reconciliation with the Respondent on her actions relating to the events of 18 March 2020 and chose instead to pursue direct action with a workers’ compensation claim and Fair Work Commission claim.

Unauthorised leave

[101] The Respondent submitted that Ms Tracy was not stressed before her dismissal, and instead had not sought prior authority from management to be absent, and she was simply upset because Mr Findlater had refused to take her side. Further, she was upset because Mr Findlater had warned her that she would need to start looking for another job if it came to a choice between herself and Mr ZA.

[102] It was submitted that the claim for sick leave for work-related stress was in transparent retaliation for Mr Findlater’s perceived refusal to take her side. It was submitted that Ms Tracy’s unauthorised departure from work on 18 March 2020, and her failure to return to work on the following two days was designed to cause maximum disruption to the Respondent’s business which, as she knew, was transitioning to working-from-home arrangements in response to the prevailing COVID-19 pandemic and as part of which she would have a fundamental coordination role.

[103] The Respondent submitted in summary with respect to the alleged unauthorised leave that the Respondent does not deny that employees are entitled to take genuine personal leave and that it will not always be possible for evidence of such leave to be provided before leave commences. In all the circumstances, however, the Respondent submitted that the only proper inference is that this was not a genuine case of personal illness but yet another instance of Ms Tracy ignoring management and doing as she pleased. It was submitted that such conduct is inconsistent with the continuation of her employment.

Post-hearing materials

[104] Following the hearing I sent the below correspondence from my chambers providing the parties an opportunity to file certain further materials:

“Dear parties,

Reference is made to the hearing of the above application heard before Commissioner Hunt yesterday. As advised during the hearing, the Commissioner issues the following post-hearing directions:

1. The Applicant is directed to file materials and evidence relevant to how she submits she mitigated her loss following her alleged dismissal (refer to attached extract for criteria in ss.387, 390-2 of the Fair Work Act 2009). This is to include any statements from Centrelink and evidence of job applications made on Seek or similar.

2. The Respondent is at liberty (but not directed) to file any submissions or materials relevant to the effect of an order of compensation on the viability of the employer’s enterprise (refer to attached extract for criteria in ss.392(a) of the Fair Work Act 2009).

The parties are to comply with directions [1] – [2] above by no later than close of business Thursday, 23 July 2020.”

[original emphasis]

[105] On 20 July 2020, I received a bundle of documents from Ms Tracy which included evidence of payments received from Centrelink and a list of jobs to which Ms Tracy had applied on Seek. With respect to the steps taken to mitigate her loss, Ms Tracy stated that she had applied for a range of jobs including full-time, part-time and contract work. She had attended one interview but was unsuccessful. Ms Tracy had recently moved to cheaper accommodation and was also able to access some money from her superannuation fund.

[106] I did not receive any materials from the Respondent relevant to the effect of an order of compensation on the viability of the employer’s enterprise following the above correspondence. However, during the hearing Mr Findlater stated on behalf of the Respondent that it had not become eligible for JobKeeper, and it had not had to let anyone go or seen a reduction of work due to the economic effects of COVID-19. 31 Mr Findlater also stated that turnover of the business was $1.9 million last year, and looked it would be around $2.1 million this year.32

Consideration

[107] A dismissal may be unfair, when examining if it is ‘harsh, unjust or unreasonable’ by having regard to the following reasoning of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd: 33

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[108] I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter. 34

s.387(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)

[109] When considering whether there is a valid reason for termination, the decision of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 provides guidance as to what the Commission must consider:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, common-sense way to ensure that the employer and employee are treated fairly.”

[110] 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. 35

[111] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination. 36 “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”37

[112] On the evidence and submissions of the Respondent, Ms Tracy was dismissed for three reasons:

(a) Unauthorised and unwarranted leave in a time of crisis;

(b) Unauthorised downloading of confidential company information; and

[113] My findings with respect to each of the reasons for the dismissal are below relevant to whether there was a valid reason for the dismissal.

Unauthorised and unwarranted leave in a time of crisis

[114] It is noted that the termination letter states:

“Your decision to take stress leave and proceed with Worker Compensation has been made without consultation with management at Ironbark Software and will be vigorously opposed.”

[original text]

[115] The Respondent submitted Ms Tracy was likely taking retaliatory action to Mr Findlater’s refusal to “take her side” and to cause maximum disruption to the Respondent’s business at a time when it was dealing with the imminent lock-down of large parts of the Australian economy and its own employees beginning to work from home.

[116] The evidence before the Commission is that on 18 March 2020, Ms Tracy was upset, leaving the meeting with Mr Findlater in a state where she was crying. I accept without any hesitation, having heard the way that Mr Findlater conducts himself, including in the evidence he gave and the submissions he made to the Commission that he informed Ms Tracy during the meeting, as alleged by her at [22(c)] that she was receiving her first verbal warning.

[117] Further, I prefer Ms Tracy’s evidence with respect to this conversation over the evidence offered by Mr Findlater. It was Mr Findlater, and not Ms Tracy who suggested that she should look for another job. I do not accept Mr Findlater’s evidence that Ms Tracy launched into a tirade and questioned why Mr ZA was still working for the Respondent.

[118] The meeting had, up until a point been routine, until Mr Findlater mentioned Mr ZA. It was not Ms Tracy who had been itching to discuss Mr ZA and his continued employment with the Respondent. I do not accept Mr Findlater’s evidence that Ms Tracy put to him an ultimatum that he had to choose between her and Mr ZA. There was no pressing reason for Ms Tracy to have made such a statement or “implication” as Mr Findlater chose to put it.

[119] Even having regard to Mr ZA’s notes as to his many concerns with Ms Tracy, many of which I consider are petty and of little or no substance, demonstrative of some kind of paranoid phobia of Ms Tracy, there is nothing notable in March 2020 which I would suspect would have caused Ms Tracy any consternation with respect to Mr ZA. It was Mr ZA, and not Ms Tracy who seemed to have a burning issue at this time. It was he who had the axe to grind, and not Ms Tracy.

[120] I am satisfied that by 18 March 2020, Mr Findlater had formed a view that Ms Tracy was trouble, an antagoniser, and was unnecessarily causing Mr ZA difficulties. I don’t accept that there is any basis for Mr Findlater to have formed this view. Where Mr Findlater stated that he had conducted an investigation in late 2019 and satisfied himself that Ms Tracy had been making false statements about the view of staff with respect to Mr Simon Bridger, Mr Findlater led no evidence that Ms Tracy had actually made such a statement. Ms Tracy, in fact, attributed the statement to Mr Loo. I consider that Mr Findlater had, by March 2020 taken the view that Mr ZA was far more valuable to the Respondent than Mr Tracy, and if one of them had to go, it was to be Ms Tracy.

[121] Understandably, Ms Tracy was upset when the meeting concluded, and she telephoned Ms Duncan who instructed her that she should go home. She did so, but also stated to Ms Duncan that she loved her job and would not be bringing a workers’ compensation claim, despite the stress that she was experiencing.

[122] Upon learning that she was likely going to be taking some time off work, Mr Findlater took it upon himself to declare that it would be paid as annual leave, and that if she did not return to work by Friday, he would be looking for somebody to replace her. Ms Duncan relayed this information to Ms Tracy. Mr Findlater asks the Commission to accept his evidence that he did not consider dismissing Ms Tracy on 18, 19 or 20 March 2020 on account of her absence from the office, and when he said he would need somebody to replace her, he meant that he would need the job to be performed by somebody in her absence.

[123] It is difficult to accept Mr Findlater’s evidence on this issue when he said at [52] that Ms Tracy would have to be “pretty thick” if she didn’t get the message that if she didn’t attend work on 20 March 2020 she should know that she was being dismissed.

[124] I find Mr Findlater’s views on Ms Tracy’s absence from the workplace on the afternoon of 18 March and then all of 19 and 20 March 2020 to be astounding. He is not a doctor, yet he considered that she was retaliating against him. He had no regard for the medical certificate obtained by her, issued by a medical practitioner, and in these proceedings appeared to me to unnecessarily eager to discuss the fact that she had, many years ago, and not in her present relationship been a victim of domestic violence. Why he did so appears to me to be perverse and demonstrative of his views of Ms Tracy. It is not clear why Mr Findlater thought it appropriate to raise this issue. Did he think the Commission would think less of Ms Tracy? Think her weak? Think her a victim? Think her the continual subject of abusive men? The fact that Ms Tracy was a victim of domestic violence many years ago has no bearing on why Ms Tracy was declared absent from work at this relevant period of time in March 2020. Mr Findlater need be assured the Commission thinks poorly of Mr Findlater for even raising the issue, not Ms Tracy for her past unfortunate circumstances.

[125] Further, at [53], in cross-examination he rudely suggested that perhaps it was Ms Tracy and not Mr ZA who should have been seeing a psychologist. Mr Findlater’s contempt for Ms Tracy was evident, and in my view unpalatable, unnecessary and unwarranted. It appeared to me during the hearing that Mr Findlater simply wanted to point-score against Ms Tracy, yet he did not impress me at all, nor did he succeed in his attempt to point-score.

[126] This is evident where at [55] I was questioning Mr Findlater if Ms Tracy needed his permission to be absent from work on account of being ill and he laughed at the question put to him. His contempt for the question being put demonstrated to me the arrogance that Mr Findlater dealt with Ms Tracy’s absence; how dare she be ill and not well enough to attend for work!

[127] Ms Tracy did not need Mr Findlater’s permission to be absent from work on the afternoon of 18 March 2020, and 19 and 20 March 2020. She was excused from attending for work by a medical practitioner from 19 March 2020, who declared on a workers’ compensation medical certificate that she would be examined again on 11 April 2020.

[128] Ms Tracy’s obligation to the Respondent was to inform the Respondent of her inability to attend for work and provide evidence of such. She met this obligation and did not attend for work during the period of her incapacity.

[129] Where Ms Tracy did not need to obtain consent to commence taking leave on account of her incapacity, she did not need to consult with the Respondent to make a workers’ compensation claim. Ms Tracy had statutory entitlements regarding personal leave per ss.95, 69, 97, 98, 99 of the Act, and a statutory entitlement to make a worker’s compensation claim. Relevantly, s.352 of the Act provides that:

“An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.”

[130] Similar provisions apply at s.772 of the Act. Ms Tracy was certified unfit to attend for work until 11 April 2020. She provided the evidence required at regulation 6.04 of the Fair Work Regulations 2009.

[131] Ms Tracy left the Respondent short-staffed during a critical time for the Respondent’s business. This is a fact, not a feeling, sentiment or perception. Her inability to perform work would have been the same if she had been suffering from gastroenteritis, influenza, or any other ailment preventing her from performing work. It was Mr Findlater’s inference that she was deliberately pulling a “strike” on the Respondent that contributed to the Respondent’s decision to dismiss her.

[132] For the above reasons, one of the reasons for the dismissal, being the Respondent’s assertion that Ms Tracy took unauthorised and unwarranted leave in a time of crisis is not a valid reason for the dismissal.

Breach of confidentiality

[133] Primarily, the Respondent contends that Ms Tracy either did not have exclusive use of the email account shared with her husband, or it was her husband’s email account and not hers. The termination letter states the following, suggesting that it was because it was sent to Mr Tracy:

“You not only betrayed this trust by taking unapproved leave at a time of national crisis but you also forwarded sensitive internal emails to other parties (Michael Tracy) on Thursday 19 March 2020 at 6.30pm using the admin account. This is a direct violation of Ironbark Security Policy and directly affects government restrictions on OTP payroll conditions for suppliers. It is also a violation of your Employee Confidentiality Contract and Employment contract. This violation alone is sufficient cause for instant dismissal.”

[my emphasis]

[134] At [27], Mr Findlater put to Ms Tracy that it was odd that a woman would share the same email account as her husband. Ms Tracy responded that she had done so for around three years. I do accept that it is an odd thing to do; Ms Tracy would no doubt have had her own personal email account prior to meeting her now husband, but now shares use of his account which uses his name. Why Ms Tracy gave up using a prior, personal email account has not been explained. I accept her evidence that she and her husband share the account. I do not accept the inference that it is solely an account for Mr Tracy’s use and therefore it would mean there was a further improper reason for sending the emails to Mr Tracy’s email account.

[135] While the forwarding of work emails to an employee’s email account (or one that is shared with a family member) should be discouraged, in these circumstances I do not accept that it constituted a breach (or if it did it was not a serious breach) of the Respondent’s policies. Nor do I find that at common law it would constitute a breach or serious breach of confidentiality obligations an employee in Ms Tracy’s position owes to the Respondent.

[136] The most ‘damning’ email included in the emails Ms Tracy sent to herself at [14] is the one prepared by her, with her own thoughts and opinions on Mr ZA’s psychological issues. It is clear that this is what she considered to be significant issues with Mr ZA’s psychological state in October 2019, and she listed them and forwarded them to Ms Duncan. Ms Duncan then added her own email to provide context to the relevant medical practitioner who was shortly going to be examining Mr ZA.

[137] There was nothing company-sensitive in the material at [14]. I do not accept that the material Ms Tracy sent herself would constitute the defined term of Confidential Information at [84]. Any reliance on it then being Confidential Information and a breach to share is not then supported.

[138] I accept Ms Tracy’s evidence that she was encouraged to provide as much relevant information to her workers’ compensation claim as was necessary. Ms Tracy’s own opinions on Mr ZA’s psychological condition was, in my view, not overblown or overstated as asserted by the Respondent. She held genuine and real concerns, based on Mr ZA’s various statements to her over a relatively short period of time that Mr ZA was unstable.

[139] I accept Ms Tracy’s evidence that Mr ZA put two fingers to his head and suggested that he didn’t want to be here (as here on Earth, not at work or in his location as suggested by him in his evidence). I accept Ms Tracy’s evidence that she was dealing with a real scenario of an employee violently punching a chair, intimating suicide by putting two fingers to his head, and she demonstrated the appropriate duty of care to Mr ZA by meeting with him privately and investigating the issue.

[140] Ms Tracy reported all of this information at the time. Mr Findlater has, in my view, now turned on Ms Tracy and conveniently forgotten the seriousness of the issue because of his loyalty to Mr ZA. He approved and endorsed the medical examinations of Mr ZA with the information he had before him at the time. It appears to me that Mr Findlater, in March 2020 had no regard to Ms Tracy’s sizeable length of service with the Respondent and her exemplary employment history, but reverse engineered a determination that Ms Tracy was the root cause of Mr ZA’s mental health issues. This is so despite a very good relationship existing between Ms Tracy and Mr ZA for the period late 2010 to August 2019.

[141] Where Ms Tracy left the meeting of 18 March 2020 in tears, with Mr Findlater suggesting she might find another job, and he would choose Mr ZA over her if necessary, it is understandable that Ms Tracy might gather for herself a modest amount of material generated during work time to assist with her in making her workers’ compensation claim.

[142] The mere fact that Mr Tracy might read these emails is, in the circumstances, not an important issue. Ms Tracy no doubt discussed with Mr Tracy the concerns she held about Mr ZA’s psychological state, including her concerns regarding his access to firearms.

[143] I do not accept that the material sent by Ms Tracy to herself constitutes employee sensitive medical information. All it simply confirms is that Mr ZA had medical appointments which is a fact. The emails do not contain medical information.

[144] The Respondent’s submissions make it clear that the Respondent was more concerned with Mr ZA’s potential emotional breakdown than that of Ms Tracy. This is so because of the more valued position Mr ZA holds within the Respondent and his known fragile state. Mr Findlater was, as is demonstrably clear, more concerned with Mr ZA bringing a workers’ compensation claim against the Respondent than he was about Ms Tracy doing the same. When she did, he immediately dismissed her.

[145] Further, at [93(a)], the Respondent appears to me, to make some concession that if Ms Tracy is correct, the Respondent’s employees might be at risk if Mr ZA had a psychiatric breakdown. This is supported by Ms Tracy’s evidence at [35] where Mr Findlater suggested that Mr ZA should not be set off as he could come into the office and shoot people up. I accept Ms Tracy’s evidence that Mr Findlater made this statement.

[146] I reject the Respondent’s assertion that Ms Tracy’s act of sending the emails that she sent to herself would affect the Respondent’s reputation in the marketplace or with the ATO as a trusted data repository and processor. There is no evidence that this constituted any sort of data breach, was reportable, or would otherwise become widely known.

[147] For the above reasons, one of the reasons for the dismissal, being the alleged breach of confidentiality is not a valid reason for the dismissal.

The ongoing conflict and bullying of Mr ZA since August 2019

[148] It has been contended by the Respondent in its evidence and submissions that Ms Tracy had emailed Mr ZA’s medical advisors an email trail listing Mr ZA’s alleged behaviour, mental issues and life circumstances. The Respondent submitted that “that list was compiled without consultation with or approval from management”.

[149] The evidence of both Ms Tracy and Ms Duncan is that the list of bullet points about Mr ZA was compiled at Ms Duncan’s request for the purpose of sending to the psychiatrist for Mr ZA’s appointment. The email chain also demonstrates that the list of bullet points was forwarded to the medical clinic by Ms Duncan, not by Ms Tracy, and that Ms Duncan drafted additional correspondence for the psychiatrist in doing so. I find that the list of bullet points was completed by Ms Tracy at Ms Duncan’s instruction and was not sent from Ms Tracy to the medical clinic directly but from Ms Duncan on behalf of the Respondent.

[150] It appears that Mr Findlater only became aware of the email sent by Ms Duncan with Ms Tracy’s email below around 19 or 20 March 2020 when he was informed that Ms Tracy had emailed it to the shared home email address. Mr Findlater has not cited any concern with Ms Duncan’s involvement in this matter. Ms Tracy’s evidence, which I accept is that when Mr ZA’s first mental health episodes in the workplace became apparent it was Mr Findlater who made the decision Mr ZA should be examined by a relevant medical professional at the Respondent’s cost.

[151] As Mr ZA’s hostility towards Ms Tracy grew in late 2019, I conclude that Mr Findlater became to disassociate from Ms Tracy. He accepted Mr ZA’s resentment of Ms Tracy, blaming her for the potential loss of his gun license. During the hearing Mr Findlater found this to be a very interesting topic, suggesting that Ms Tracy made baseless claims to the Police, denied by Ms Tracy. Even if Ms Tracy did contact the Police relevant to her concerns for Mr ZA’s capacity to have a gun licence, she held appropriate grounds to do so. The following is reproduced from the Queensland Police website: 39

“If you have immediate concerns about someone’s behaviour and his or her access to a weapon, if a crime is happening now, or a life is threatened, call Triple Zero (000) or speak to your local police station.

If you have general concerns about someone's behaviour and his or her access to a weapon, please contact your local police station or Policelink on 131 444.

When you make an application for a weapons licence you must provide information on your medical history. This is so we can assess your mental and physical fitness to hold a weapons licence. You must let us know if you have ever received treatment for:

• Serious visual impairment

• Fits, dizziness or blackouts

• Brain injuries

• Psychiatric or emotional problems

• Alcohol or drug related problems, and/or

• Physical impairment

If you answer 'Yes' to any of these questions you are required to provide further details. A current doctor’s report must accompany your application to certify the condition(s) and that it does not affect your ability to possess or use a weapon/firearm.

This report is to detail as a minimum:

1. The history taken from the applicant,

2. Sufficient details of any mental/physical health condition,

3. The period of time the doctor has been treating the applicant,

4. The doctor’s opinion in relation to the person, and

5. The reason for the doctor coming to that opinion.

You can print the information on this page, and the PDFs below, to take with you to your medical appointment. Make sure your doctor or health provider knows that the medical certificate must explicitly state whether your condition affects your ability to possess or use a weapon.”

[152] The fact that Mr ZA was being examined by a mental health professional could cause any person with such knowledge to report such a matter to the Police. It would then be a matter between the Police, Mr ZA and his medical professionals to discuss his ongoing capacity to maintain a gun licence. If Ms Tracy had indeed reported her concerns to the Police, she was within her rights to do so without consternation and condemnation from the Respondent.

[153] After hearing from Mr ZA during the hearing, I held concerns for his conduct while Ms Tracy was employed. He has satisfied himself that Ms Tracy is the root of his mental health issues, and as I understand it, if she had not talked him in to believing at the time that he had mental health concerns, he would not have any mental illness, or if he did, it would not be as severe. He exclaims that Ms Tracy is a narcissist, and he has diagnosed that he considers she has narcissistic personality disorder. She appears to me to have nothing of the sort.

[154] I accept Ms Tracy’s evidence that Mr ZA would, at times, ask her if she was still at work and call her a narcissist. He clearly was projecting all of his own issues on her, making out that they were her fault and not his. I have no doubt she held concerns about his conduct, yet she was still doing her work right up until 18 March 2020 when Mr Findlater suggested she should find other work because of the conflict in the office.

[155] I do not accept Mr Findlater or Mr ZA’s evidence over Ms Tracy’s with respect to the conflict in the office. Nor do I accept that Ms Tracy baited Mr ZA or was somehow the cause of his mental health issues. It appears to me that Mr ZA’s mental health issues commenced around August 2019, and he had worked well with Ms Tracy for 8.5 years prior without any reported incident. She was not a master manipulator as now claimed by Mr ZA. The Respondent’s evidence at [98] that medical evidence supported the finding that Ms Tracy was the cause of Mr ZA’s mental health issues cannot be established as it was simply an assertion put, without evidence.

[156] For the above reasons, one of the reasons for the dismissal, being the ongoing conflict and alleged bullying of Mr ZA since August 2019 is not a valid reason for the dismissal.

s.387(b) - Whether the person was notified of that reason

[157] Ms Tracy was notified of the reasons for the dismissal in the termination letter prepared 23 March 2020 and received by her on 31 March 2020.

s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[158] Ms Tracy had been declared unfit for work from 19 March 2020 until 11 April 2020. Mr Findlater had concluded that she would take some days as annual leave instead of personal leave, but ultimately decided on or around 23 March 2020 to dismiss her.

[159] Ms Tracy was not afforded any opportunity to respond to any reason related to Mr Findlater’s concerns with her capacity or conduct.

s.387(d) - Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal

[160] Ms Tracy was dismissed by way of registered mail. Accordingly, there was no discussion relating to the dismissal. There was no unreasonable refusal by the Respondent to allow Ms Tracy a support person because no meeting occurred.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[161] Mr Findlater was aware of the relationship between Ms Tracy and Mr ZA disintegrating, yet no warning had earlier been provided to Ms Tracy. Ms Tracy was within her rights to expect that with Mr ZA’s continued attendance upon medical practitioners the Respondent shared similar concerns relevant to Mr ZA’s mental health issues. I accept Ms Tracy’s evidence that Mr Findlater’s way of dealing with the deteriorating relationship, and Mr ZA’s blame of Ms Tracy was to simply encourage the two employees to give each other as much space as possible.

s.387(f) - Whether the respondent’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed

[162] The Respondent was invited to make submissions on this issue but did not do so.

s.387(h) Other matters

[163] Ms Tracy had a long period of service, being 9.5 years’ service. The dismissal has resulted in Ms Tracy being ineligible for long service as a result of not reaching 10 years of service.

Conclusion

[164] I have determined that there was not a valid reason for the dismissal.

[165] Mr Findlater’s conduct in the manner of the dismissal is, in my view, one of the poorest displays of a respondent I have seen since being appointed to the Commission. One of the reasons for the dismissal was Ms Tracy’s absence from work whilst incapacitated. During the hearing Mr Findlater made further statements that she would have been “thick” if she had not have known that she would have been dismissed from the role if she didn’t return to work.

[166] Unfortunately for Ms Tracy, Mr Findlater placed his loyalties with Mr ZA and determined that he would rather see Mr ZA remain in the business than Ms Tracy. Fortunately for Ms Tracy, she no longer has to work for Mr Findlater.

[167] When one runs their own business, it would be helpful to have some self-reflection of one’s own conduct. It is almost impossible to imagine how Mr Findlater could reason that the Commission would not find for Ms Tracy with all of the information before it. This is so, despite Mr Findlater’s “declared victory” in having Ms Tracy’s workers’ compensation claim rejected. The considerations before WorkCover Queensland are not the same as the considerations before the Commission.

[168] I find that Ms Tracy’s dismissal was harsh, unjust and unreasonable. Whilst it is not necessary to determine all three grounds, I find that Ms Tracy was unfairly dismissed.

Remedy

[169] Section 390 of the Act reads as follows:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[170] Ms Tracy is a person protected from unfair dismissal for the Act’s purposes and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise discretion as to whether she can be reinstated.

[171] As per my findings above relevant to Mr Findlater’s conduct during the employment and in the proceedings, I am satisfied that it is inappropriate to order reinstatement.

[172] I now turn to consideration of compensation.

Compensation

[173] Section 392 of the Act provides:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

Authorities

[174] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket.⁴⁰ That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey;⁴¹ Jetstar Airways Pty Ltd v Neeteson-Lemkes⁴² and McCulloch v Calvary Health Care (McCulloch).⁴³

[175] I have had regard to the above authorities, and I have considered the submission of each party.

The effect of the order on the viability of the respondent

[176] Given the size of the Respondent this is a neutral consideration.

The length of Ms Tracy’s service

[177] Ms Tracy had approximately 9.5 years’ service. This is a long period of time. She was approximately six months’ shy of a full entitlement to long service leave which she would have attained at 10 years’ service. She has been unfairly dismissed, and pursuant to s.94(4)(c)(iii) of the Industrial Relations Act 2016 (QLD), Ms Tracy will be entitled to payment of pro rata long service. This payment becomes due upon this decision being published.

The remuneration that Ms Tracy would have received, or would have been likely to receive, if she had not been dismissed

[178] I am satisfied that but for Mr Findlater’s move to unfairly dismiss Ms Tracy, she would have continued in her employment for at least six months, especially as she was very close to achieving 10 years of service.

[179] I do not find that there would have been any valid reason to dismiss Ms Tracy within the period of six months from 31 March 2020, even having regard to the deteriorating relationship between her and Mr ZA.

[180] I have determined that Ms Tracy would have continued in her employment for a further six months. Her annual salary was $60,000.

The efforts of Ms Tracy (if any) to mitigate the loss suffered because of the dismissal

[181] Ms Tracy made all suitable and relevant attempts to find alternative work.

The amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation

[182] Ms Tracy had not found any other work by 20 July 2020, and therefore had not earned remuneration at that time. On the basis that I have decided to award an amount of six months’ payment to Ms Tracy, it is necessary for me to learn if she has obtained any further work since her last communication with my chambers on this issue on 20 July 2020.

[183] Ms Tracy will be directed to file to chambers a copy of her bank account statement for the period 1 July 2020 to 30 September 2020, detailing which (if any) of the payments account for remuneration. Any such amount paid to Ms Tracy would be a nett payment, and if Ms Tracy has received remuneration, she will need to provide evidence of the gross amount paid to her during the relevant period of time.

[184] I regret that there has been a sizeable delay for the parties in having this matter determined by the Commission. This is due to the large number of reserved decisions I currently have before me as a result of the spike in various applications in this very unusual year. I consider it would not have been appropriate for the material above at [183] to have been sought in the lead-up to this decision being released as it would have foreshadowed that I have made a finding of unfair dismissal.

The amount of any income reasonably likely to be so earned by Ms Tracy during the period between the making of the order for compensation and the actual compensation

[185] This factor is not relevant in the circumstances of this matter.

Other relevant matters

[186] I do not consider that there are any other relevant matters to consider that I have not already addressed above.

Misconduct reduces amount

[187] Section 392(3) of the Act requires that if the Commission is satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person then the Commission must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.

[188] The section requires that consideration be given by the Commission, amongst other things, as to whether a person’s misconduct contributed to the decision to dismiss an employee even if the Commission has found that there was no valid reason for the person’s dismissal. However, if there was no valid reason for the dismissal that may be relevant to the Commission’s decision as to the appropriate amount by which the amount of compensation should be reduced.⁴⁴

[189] I do not find that Ms Tracy engaged in any misconduct that would reduce the amount to be awarded to her.

Shock, distress etc. disregarded

[190] I confirm that any amount ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to Ms Tracy by the manner of the dismissal.

Compensation Cap

[191] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the applicant, or to which the applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal.

[192] The high income threshold immediately prior to the dismissal was $148,700, and the amount for 26 weeks was $74,350. The amount of compensation the Commission will order does not exceed the compensation cap.

Payment by instalments

[193] This is not an appropriate consideration given the size of the Respondent.

Order of compensation

[194] Subject to the paragraph below, I have determined that the Respondent is to pay to Ms Tracy the amount of six months’ pay being an amount of $30,000 gross, subject to taxation.

[195] Upon Ms Tracy providing evidence of any remuneration earned by her in the period 31 March 2020 to 30 September 2020, I will make a further decision as to the final amount the Commission will require the Respondent to pay to Ms Tracy as compensation for her unfair dismissal. This further decision will be made promptly upon the provision of the information by Ms Tracy.

[196] In addition, the Respondent is to pay superannuation on the amount awarded. The further decision will require all payments to Ms Tracy to made within 14 days of that decision.

COMMISSIONER

Hearing details:

16 July 2020, Brisbane (by Telephone)

Printed by authority of the Commonwealth Government Printer

1 Transcript of Proceedings, PN388.

2 Ibid PN146.

3 Ibid PN249 – PN266.

4 Ibid PN60 – PN61.

5 Ibid PN298 – PN301.

6 Ibid PN716 – PN718.

7 Ibid PN113 – PN122.

8 Witness Statement of Applicant, 10 July 2020; Transcript of Proceedings, PN364.

9 Witness Statement of Christopher Blair Findlater, 1 July 2020, Page 2.

10 Ibid Page 2.

11 Transcript of Proceedings, PN379 – PN380.

12 Ibid PN76 – PN77.

13 Ibid PN396 – PN399.

14 Ibid PN402 – PN404.

15 Ibid PN441 – PN474.

16 Ibid PN854 – PN880.

17 Ibid PN876.

18 Witness Statement of Simon Lee Bridger, 1 July 2020, Page 1.

19 Transcript of Proceedings, PN578 – PN579, PN582 – PN584.

20 Ibid PN643.

21 Witness Statement of Mr ZA, 1 July 2020, Pages 1 – 2.

22 Transcript of Proceedings, PN760 – PN768.

23 Ibid PN792 – PN 793.

24 Ibid PN774.

25 Ibid PN769 – PN789.

26 Ibid PN973 – PN975.

27 Supplementary Outline of Submissions, 3 July 2020, Paragraph [4].

28 Ibid Paragraph [7].

29 Transcript of Proceedings, PN1030 – PN1032.

30 Respondent’s Outline of Submissions, 1 July 2020, Page 1.

31 Transcript of Proceedings, PN496 – PN501.

32 Ibid PN502 – PN503.

33 (1995) 185 CLR 410, [465].

34 Sayer v Melsteel[2011] FWAFB 7498 at [20].

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

36 Edwards v Justice Giudice [1999] FCA 1836, [7].

37 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

38 Witness Statement of Christopher Blair Findlater, 1 July 2020, Page 2.

39 < (1998) 88 IR 21.

41 [2013] FWCFB 431.

42 [2014] FWCFB 8683.

43 [2015] FWCFB 2267.

44 Crawford v BHP Coal Pty Ltd [2017] FWC 154, [345] – [346]; Read v Gordon Square Child Care Centre Inc. [2013] FWCFB 762, [83].

Ms Paula Tracy v Ironbark Software Pty Ltd

[2020] FWC 6601

9 DECEMBER 2020

DECISION