[2020] FWC 5696

FAIR WORK COMMISSION

DECISION

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

Ms Xiao Qiong Tang
v
Ultimate Positioning Group Pty Ltd T/A UPG
(U2020/2028)

COMMISSIONER HUNT

BRISBANE, 26 OCTOBER 2020

Application for unfair dismissal remedy – whether dismissal unfair – no valid reason for dismissal – not notified of part of the reason for the dismissal – dismissal harsh in manner undertaken – application granted – order of compensation made.

[1] On 24 February 2020, Ms Xiao Qiong (Teresa) Tang made an application for unfair dismissal remedy under s.394 of the Fair Work Act2009 (the Act) alleging she had been unfairly dismissed by her employer, Ultimate Positioning Group Pty Ltd (UPG/the Respondent).

[2] Ms Tang was employed by UPG from 3 March 2008. At the time of her dismissal she was working on a full-time basis as a Service Technician. She was dismissed on 3 February 2020.

[3] The matter did not resolve at conciliation and was allocated to me for consideration. UPG did not raise any jurisdictional objections to the application and so I issued directions for filing of material and listed the matter for a hearing of the merits of the application on 27 May 2020.

[4] At the hearing Ms Tang represented herself and gave evidence. UPG was represented by Ms Alexa Omany, Legal Counsel and Company Secretary of UPG. The following people gave evidence and were cross-examined:

• Mr Michael Brierley, Service Department Manager;

• Mr Ben Elliott, Chief Operating Officer;

• Ms Janice Shackley, HR Manager;

• Mr Oliver Keogh, Service Technician; and

• Mr Stephen Travers, Accounts Receivable Officer.

Background

[5] As noted above, Ms Tang was employed for some 11 years at the time of her dismissal. In March 2014, Ms Tang was placed on a Performance Improvement Plan (PIP). The PIP identified deficiencies in Ms Tang’s performance, and specifically identified Ms Tang’s punctuality had deteriorated to a point where productivity was suffering and compromising the team environment. It was noted that equal contribution from all members was required and it was put to Ms Tang that her poor use of work time, together with a reduction in her output was contrary to a team environment being fostered, and hindering the group from achieving goals and objectives.

[6] On 12 July 2016, a meeting was held with Ms Tang. Following the meeting she was sent a letter identifying concerns that she was frequently away from her desk, and her communication to other staff members required improvement.

[7] In November 2019, UPG evidently became concerned with Ms Tang’s performance, including her productivity. Ms Tang was sent a letter notifying her of a meeting where the performance concerns would be discussed:

“18 November 2019

Dear Teresa,

Notice of Meeting

This letter is to inform you that you are required to attend a meeting to discuss your performance in your position of Service Technician.

The meeting will be held at UPG Meeting room 1 at 11.00 AM on Wednesday 20 November. Attending the meeting will be Michael Brierley, Service Department Manager and Janice Shackley, HR Manager. You are welcome to bring a support person with you to the meeting if you wish.

The following issues will be discussed:

• A potentially fraudulent invoice (see attached) where you incorrectly allocated parts to labour

• Your productivity – specifically an unacceptable rate of billable hours (details attached)

• Your punctuality and time spent away from your work desk

If you have any questions, please do not hesitate to contact Michael Brierley or the undersigned.

Yours faithfully
UPG

Janice Shackley
Human Resources Manager”

[8] On 20 November 2019, Ms Tang attended the meeting. A further meeting was scheduled for 27 November 2019 to continue to discuss the concerns.

[9] On 2 December 2019, Ms Tang was sent a letter confirming discussions held on 27 November 2019:

“28 November 2019

Ms Teresa Tang
[address redacted]

Dear Teresa,

Confirmation of Meeting Discussions 27 November 2019

This letter is to confirm the issues and concerns that have been discussed with you regarding your performance as Service Technician.

A potentially fraudulent invoice where you incorrectly allocated parts to labour

It was put to you that you had deliberately invoiced a customer for service instead of parts to increase your billable hours. You put forward that you did not know this was not allowed. However, you were told in writing on 1 April 2019 that this was not acceptable practice.

You also stated that your manager, Michael Brierley, had said that invoicing customers for hours worked instead of parts was acceptable in some circumstances. Michael strongly denies this and an investigation into the issue did not support your assertion.

You also put forward that “everybody” does it. You supplied a number of example invoices to support your claim and these have been investigated. On one invoice, dated 14 November 2016 raised by the previous Service Department Manager, who left the company in 2016, there appeared to be an incorrect allocation of parts as hours. All other examples you provided were found to have been invoiced correctly.

Further to your claim that it is common practice to invoice parts as labour on occasion, the Company has investigated your claim and come to the conclusion that this is not the case.

As a result of the investigation and our discussions with you we have come to the conclusion that you did know that it was not allowed to invoice for service where no labour costs were payable. You did this to inflate your billable hours and increase the amount of incentive payment due to you.

As a consequence, you will not be eligible for participation in the Service Department Incentive Plan for the December quarter. In addition, you should be aware that any further instances of deliberately incorrect invoicing or quoting will be viewed as serious misconduct and may result in further disciplinary action up to and including dismissal.

Productivity

It was discussed with you that your billable hours were not at an acceptable level. You put forward that there was not enough work to do and that the department was experiencing a slow period. The Company has reviewed the revenue for your department for the last three years and has found that revenue is the same or higher than previous years in the same month.

You also said that the work you undertook was often diagnostic and could not be billed to the customer resulting in a lower billable hour rate.

The Company has compared your billable hours to Technicians undertaking similar work and found that while this type of work does result in relatively low billable hours your billable hours are consistently well below comparable Technicians.

As discussed with you to further review your assertion that it is the type of work that you do that negatively impacts your billable hours you will be required to fill in an hourly timesheet detailing the job numbers that you are working on and any breaks that you take. This will be reviewed on a weekly basis.

Punctuality and time spent away from your desk

It was discussed with you that, apart from your lunch and other reasonable breaks, you were required to be at your desk during working hours.

It was raised that you have been late for work approximately 20 times in the past year. You did not offer an explanation for this.

As you are aware from previous disciplinary meetings you are required to be at your desk and ready to commence work by 8.30am each day. If you are not going to attend work or are running late you should inform your manager before this time.

This is a requirement of your ongoing employment with UPG.

If you have any concerns about the content of this letter or have any other issues relating to your employment you are encouraged to contact either the undersigned or the Chief Operating Officer.

Yours faithfully
UPG

Janice Shackley
Human Resources Manager”

[10] Ms Tang was given a seven-week period from the meeting on 20 November 2019 to improve her performance in the identified areas. UPG submitted that it excluded the period from 20 December 2019 to 5 January 2020, due to the organisation closing for two weeks over Christmas which it recognises produced a reduced volume of work.

[11] A further meeting took place on 3 December 2019. Notice was given via email. The email stated the intention of the meeting was to further clarify any points from the meeting on 27 November 2019 and to detail the performance UPG required moving forward.

[12] After the Christmas period, Mr Brierley met with Ms Tang regarding her performance. On 30 January 2020, Mr Brierley met with Mr Adam Bright, Managing Director regarding Ms Tang’s performance. On the basis of fraudulent billing, Ms Tang’s ongoing poor performance, and her unwillingness to cooperate to improve her performance, Mr Bright supported the recommendation to terminate Ms Tang’s employment.

[13] On 31 January 2020, Ms Tang was given notice of a meeting scheduled for 3 February 2020. At the meeting Ms Tang was told that upon review of her performance from November, December and January, the Respondent had not seen a sufficient improvement in her performance. Ms Tang was asked if she could offer any reason why the company should not terminate her for failure to perform her role. Ms Tang indicated that she believed her performance had improved in January 2020. Ms Tang was then presented with a pre-prepared letter of termination which read:

“3 February 2020

Ms Teresa Tang
[address redacted]

Dear Teresa,

Confirmation of Termination for Unsatisfactory Performance

This letter is to confirm the outcome of a meeting that was held today to discuss your performance in the position of Service Technician.

At the meeting it was discussed with you that your level of productivity, specifically your billable hours, was not acceptable.

At meetings held with you on 20/11/2019, 27/11/2019, 3/12/2019 and 29/01/2020 it was explained to you that failure to meet acceptable levels of productivity may result in the termination of your employment.

You were asked in these meetings if there was a reason for your continued lack of productivity. You put forward that there was not enough work available to you and that it was the types of repairs that you did. The Company thoroughly investigated your assertions and did not find them to be valid.

Since these meetings there has been no improvement in your performance.

Accordingly, your employment is terminated with 5 weeks’ notice effective immediately. You are not required to work out your notice and will be paid 5 weeks’ pay in lieu of notice. All entitlements including notice, outstanding wages and unused annual leave less taxation will be paid in to your usual bank account today.

Yours faithfully
UPG

Adam Bright
Managing Director”

Relevant legislation

[14] Section 394 of the Act sets out:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[15] Further, ss.385 and 387 provide:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC 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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

“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.”

[16] There are no jurisdictional considerations for the Fair Work Commission (the Commission) to consider and the application was made within the statutory time limit. Accordingly, it is necessary to determine if the dismissal was unfair having regard to the considerations in s.387 of the Act.

Ms Tang’s evidence and submissions

[17] Ms Tang’s evidence is that she worked 40 hours per week but was paid for only 38 hours, earning $33.18 per hour with additional quarterly commission. The commission was paid pursuant to a team incentive plan for billable labour of each workshop.

[18] Ms Tang was on annual leave between 30 October 2019 to 15 November 2019. On 18 November 2019, Mr Brierley informed Ms Tang that she was required to attend a performance meeting on 20 November 2019. He informed her that there were three things to discuss; her incorrect allocation of a second-hand part to labour, her billable hours were the lowest, and her punctuality. Ms Tang responded, “I didn’t know my billable hours were the lowest. You have never told me that before.”

Meeting – 20 November 2019

[19] At the meeting on 20 November 2019 relevant to the charging of the second-hand part as labour, Ms Tang informed Mr Brierley and Ms Shackley that it depends on what the team wants, and it had happened before. Mr Brierley replied, “That’s not the team’s choice. It’s the company’s choice. It’s my choice.” Ms Tang replied, “It was not my decision. I’m not the one [who] started it. It was someone else started it and I saw it in AX.”

[20] Ms Shackley put to Ms Tang that it was inappropriate to have charged the client in the way that Ms Tang did. She said to her, “I guess the implication is you’re doing it because it bumps up your billable hours.” Mr Brierley then said, “You change the invoice to benefit yourself.” Ms Tang replied that she only received a portion of the benefit as it benefitted the whole team.

[21] Relevant to the billable hours performed by her, Ms Tang stated to Mr Brierley that it had been quiet and often when a job came in there was a fight between technicians as to who would do the work. Her evidence is that Mr Brierley agreed that it had been quiet. He asked her, “So how can we get your hours up?” Ms Tang replied that she would do service work.

[22] Regarding the punctuality concerns, Ms Tang stated that if she arrives at work late, she will stay late to catch up. She requested that Mr Brierley and Ms Shackley check with “Steve” who could attest to her being one of the last in the office of an afternoon or evening. Ms Tang offered to catch an earlier bus to work.

[23] Ms Tang stated that she was on paid sick leave on 22 and 29 November 2019.

[24] On 26 November 2019, Ms Tang was issued a notice of a requirement to attend a meeting the following day.

Meeting – 27 November 2019

[25] Ms Tang attended the meeting with Mr Brierley and Ms Shackley. Ms Shackley informed her that because of her incorrect invoicing she would be excluded from the incentive plan for the quarter, and the decision to allow her to be eligible for the Q1 2020 quarter would be made at the end of March 2020.

[26] It is Ms Tang’s evidence that Ms Shackley then noticed that Ms Tang was recording the conversation. Ms Shackley stated, “You should have asked that you wanted to record it. But if that’s what you want to do it, that’s fine.” Ms Tang replied, “I’m sorry.”

[27] Ms Tang’s evidence is that Ms Shackley stated that from that point forward, Ms Tang would be required to complete a timesheet with hours that she was spending on each job. She stated that it was necessary to ensure that Ms Tang was treated fairly. The timesheets would be looked at weekly and at the end of each month reviewed.

[28] On 2 December 2019 the letter detailed at [9] was issued to Ms Tang. Ms Shackley sent Ms Tang a meeting invite at 2:12pm for a meeting the following morning at 10:00am. Ms Tang did not read the meeting invite until around 4:00pm on 2 December 2019.

Meeting – 3 December 2019

[29] The meeting due to commence at 10:00am commenced around 9:25am at the insistence of Ms Shackley, Mr Brierley and Mr Elliott. The letter dated 28 November 2019 was discussed. Ms Tang’s evidence is that Mr Elliott stated, “There is a couple of ways we can go here. The outcome is if you don’t get it back on track, it could result in the end of your employment here. If you wanna be on board, you’ve got to jump on with us. Not pushing against others, not pushing against the team. Be punctual, contribute. The intent today is to make sure you understand what’s in here, what’s required, but also what next.”

[30] Ms Tang stated inter alia that the following conversation occurred:

Ms Tang:	I want to commence doing servicing.
Mr Elliott	You didn’t want to be trained on total station years ago.
Ms Tang:	I didn’t say I don’t want to be trained. I said I want to be trained by Trimble. Last time when Trimble came to train us I didn’t get to offer.
Ms Shackley:	I would like to understand why you think we should offer you additional training. You are not hitting your targets at the moment.
Ms Tang:	The repairs take time, but the service is a lot easier and bills a lot of hours. Now that (the productivity) is based on how much labour we can charge the customer. It is not really fair to people doing the repair others doing the service.
Mr Elliott	I agree what you say to an extent is right. But I think you turn up, drive through your emotion, ride into everyone else’s effort, try to cheat the system.

[31] At 4:23pm on 22 January 2020, Mr Brierley sent Ms Tang an email notifying her of a meeting with him and Ms Shackley the following morning at 9:30am. The meeting was postponed until 24 January 2020 and then again until 29 January 2020.

Meeting – 29 January 2020

[32] Mr Brierley met with Ms Tang however Ms Shackley could not attend. Ms Tang’s evidence is that Mr Brierley stated that he hadn’t seen any incorrect invoice of second parts as labour, and he considered that she had been attending work on time. He informed her that her billable hours had improved but were still low.

[33] On 31 January 2020 Ms Tang was notified of her requirement to attend a meeting on 3 February 2020.

Meeting – 3 February 2020

[34] The meeting was attended by Ms Tang, Mr Brierley and Ms Shackley. Ms Tang’s evidence is the following was said [with some editing]:

Ms Shackley:	We asked you to come to this meeting. As you know there has been a lot of meetings for the last few months back for your productivity and your attitude to work. Unfortunately there has been not much improvement from the last month. So the decision has been made to terminate your employment. That will be effective immediately.
Ms Tang:	What do you mean no improvement? I would like to see the figures.
Ms Shackley:	[handed Ms Tang a spreadsheet] I guess the defining factor for asking in that, for all the meetings we held with you and the discussions we’ve had with you about your improvement; All you have to say last is you’re not motivated. You’re only going to do the bare minimum. I’m afraid that’s just not acceptable to the directors. So the decision has been made to terminate your employment.
Ms Tang:	[reviewed the spreadsheet] I don’t quite understand this. In January I can see I billed 60 something hours. I’ve got the figures here. [took out a spreadsheet showing figures]
Mr Brierley:	60? You’re joking. Seriously.
Ms Tang:	I’ve got the figures here. It’s in AX. Everything is true.
Ms Shackley:	The decision has been made to terminate your employment. By listening to you, we cannot continuously have someone in this business who has no appetite to work with us to improve. Now we met with you four times in the last few months and asked you to improve but what did you say to us…..
Ms Tang:	But in January I billed more than Sam. I know it looks like Sam billed a lot. But some of his jobs had five travel hours we didn’t do. So do you want to explain this?
Mr Brierley:	Well the data we looked as is the first 14 days of January. At that stage you had not billed more than Sam.
Ms Tang:	But the last 14 days I have billed quite a lot. Some of the jobs didn’t [invoice]. You need to look at the whole month. For the whole month I have billed a lot. I have improved in the last month.
Mr Brierley:	That’s not enough.
Ms Tang:	In January I have improved. I billed more than Sam. According to AX he billed 62 hours, I billed 67 hour.
Mr Brierley:	We’re only looking at the invoiced labour and the warranty spreadsheet. It’s not out of AX. So our data is different.
Ms Shackley:	The deciding factor when Adam and Ben decided that you would be terminated is because we’re not seeing any appetite for you to work alongside your team and improve. You told Michael that you were going to do the bare minimum.
Ms Tang:	I didn’t say I would only do the bare minimum. [Ms Tang’s evidence is this is the first time she had ever uttered the words ‘bare minimum’ in her life]
Mr Brierley:	Yes, that’s what you said.
Ms Tang:	I didn’t [say] that. I didn’t [say] that.
Ms Shackley:	I have sat in three meetings with you. I have never heard from you that you wanted to improve.
Ms Tang:	I did say I want to improve.
Ms Shackley:	Well, that’s not how I remember.
Ms Tang:	I have recordings for the meetings.
Ms Shackley:	OK, that’s not the point. Anyway, the decision has been made that you are terminated, effective immediately. Now if you prefer we can pack up all your things and send them to you, or you can walk back over with Michael now and get your things. You’re not required to work out your notice.

[35] Ms Tang submitted that her performance was compared with technicians who did a large percentage of service, calibration and quality assurance jobs, who could bill 70% more hours than the actual working hours. Ms Tang said the repair/diagnostic jobs she performed billed a lot less.

[36] Ms Tang also argued UPG used inaccurate and incomplete data and compared her with selected technicians in selected date ranges. She said that jobs that had been completed but hadn’t been invoiced were not included, travel hours were included in one technician’s warranty data when he did not do the travel, only 14 selected days in January 2020 were used which excluded four days in which Ms Tang completed more jobs and billed 42% of her total amount in that month, and UPG left the least productive technician out for comparison.

[37] Ms Tang submitted the performance improvement period was around Thanksgiving, Christmas, New Year, and Chinese New Year holidays, and due to process delays, some of her jobs were unable to be completed. She submitted that during these holiday periods she was unable to get technical support from the UPG’s supplier in the United States, and spare parts order processes from the United States were stopped or delayed. Ms Tang said that warranty claim approvals and credit issues from China were stopped or delayed, and during Christmas and New Year holidays some customers took longer breaks than UPG, resulting in purchase order process delays.

[38] Ms Tang submitted that she was only advised her billable hours were unacceptable in the written notice of meeting she received on 31 January 2020, which gave notice she would be required to attend a meeting on 3 February 2020. Ms Tang said that until this point, she had been told her billable hours were low, but never that the hours were unacceptable. Ms Tang argued this meant she was not warned about this as a reason for her dismissal.

[39] Ms Tang said that she was not warned about her unwillingness to meet required productivity levels or unwillingness to accept assistance to improve her performance and was not given an opportunity to respond to these issues.

[40] Ms Tang argued she was not given an opportunity to respond to the dismissal reason given in the termination letter. She said Ms Shackley delivered the dismissal decision at the beginning of the final performance meeting on 3 February 2020, with the dismissal effective immediately. Ms Tang said she was told several times that the decision had been made to terminate her employment and was handed a pre-prepared termination letter. Ms Tang provided a recording and transcript of this meeting.

[41] Ms Tang submitted that no effective performance improvement plan was developed, and no training or support was provided. Ms Tang said there was no clear measurement of what level of productivity was acceptable.

[42] Ms Tang said no timeframe was set for her to improve. She said she was required to fill in an hourly timesheet detailing the job numbers that she was working on and any breaks that she took, starting on 3 December 2019. She said this timesheet should have been reviewed weekly, but she didn’t receive any weekly review, and was told at the meeting on 27 November 2019 that her timesheet would be reviewed at the end of a month to see whether it needed to be continued.

[43] Ms Tang said she didn’t receive any review at the end of December 2019, and the first and last review of her performance and the timesheet was done by Mr Brierley at the meeting on 29 January 2020.

[44] Ms Tang said she did not receive any training to help improve her performance, and the timesheet was the only assistance she received. She said that in all of the performance meetings held through November 2019 to January 2020, she informed her managers that she wanted to start doing the service jobs so she could bill more hours but did not receive support for her requests. Ms Tang said that at the performance meeting on 3 December 2019, Ms Shackley questioned why Ms Tang thought she should be offered additional training.

[45] On the issue of the charging of service fees for replacement of parts, Ms Tang said she was treated differently to other employees as she was removed from the incentive plan for charging a second-hand part to service fees. She said other staff who also did this were not removed from the incentive plan and there were no adverse outcomes for them.

Evidence and submissions of UPG

Evidence of Mr Brierley

[46] Mr Brierley has been employed by UPG since October 2014 and has held the role of Service Department Manager since January 2017. Ms Tang reported to him. His evidence is that he held many informal meetings with Ms Tang, and she attended regular team meetings regarding workloads and training.

[47] In November 2019, Mr Brierley discovered that Ms Tang had appeared to have fraudulently charged parts as labour. He met with Ms Shackley to discuss how to deal with this discovery. Upon looking further into this activity, Mr Brierley discovered that Ms Tang’s level of activity within the team was low. He suspected that the reason Ms Tang had billed parts as labour was to inflate her billable hours to ensure that her team met the required targets for them to receive a greater incentive payment.

[48] He also noticed that Ms Tang was not punctual in arriving at work and was spending an excessive amount of time away from her desk.

[49] Mr Brierley and Ms Shackley met with Ms Tang on 20 November 2019. Mr Brierley put to Ms Tang that she had fraudulently masked the sale of a part as a labour charge to deliberately inflate her billable hours to ensure that she received a greater incentive payment. His evidence is that Ms Tang stated, “Everyone did it” and it is accepted practice. Ms Tang stated that Mr Brierley is aware of the practice and allows it to happen. Mr Brierley denies the accusation.

[50] During the hearing Mr Brierley stated that he was accused of turning a blind eye to the practice. He understands that an investigation was carried out, clearing him of such an accusation. He stated that he was not involved in the investigation.

[51] Mr Brierley presented Ms Tang with a spreadsheet with billable hours, where Ms Tang stated that she thought the numbers within were incorrect as they did not include warranty hours. Ms Brierley replied that in his opinion the warranty hours were not significant enough to impact the overall picture of the report, however he would provide her with a report including the warranty hours.

[52] Ms Tang explained that the reason why her billable hours were so low was because of the low volume of work available, and, for example, the shelf being empty. Mr Brierley replied that the shelf is often empty because Ms Tang’s colleagues were working more productively than her. He asked her how she could become more productive, to which she stated that she could do the service work. He understood that to mean the service and calibration of total stations versus the work she did which was diagnosing and repairing used equipment or that which was under warranty.

[53] Mr Brierley’s evidence is that the service and calibration of total stations generally results in more billable hours because there is no diagnosis time involved and the procedure for this task is well established. The technicians perform this regularly and are well-practised at performing this in a time-efficient manner.

[54] Ms Tang declined an offer to be included in an instructor-led total station training course in February 2018, and until the meeting of 20 November 2019 she had not indicated any interest in completing any training in order to be qualified to undertake the service and calibration of total stations.

[55] Mr Brierley also raised Ms Tang’s punctuality and her time spent away from her desk. His evidence is that this had been raised with her in the past and improved for a time, before it then deteriorated.

[56] At the conclusion of the meeting Mr Brierley informed Ms Tang that the masking of sales parts as labour charges would be investigated and he would inform her of the outcome of the investigation. Further, he expressed his concern that she had previously shown no interest in training to do service work, and where she had improved her punctuality it had soon dropped off again.

[57] Mr Brierley and Ms Shackley discussed the meeting and determined that Ms Shackley should interview individuals to investigate Ms Tang’s claim that it was common to mask sales charges as labour charges. Mr Brierley understands that Ms Shackley met with the National Accountant, the Chief Operating Officer and two senior workshop technicians who all stated that under no circumstances was it acceptable practice to bill a customer for parts as labour. Mr Oliver Keogh, Senior Technician informed Mr Brierley that he was not aware it had ever occurred.

[58] Mr Brierley conducted a further investigation on invoices and could find only one other occasion where this had occurred; in late 2016.

[59] Mr Brierley and Ms Shackley met with Ms Tang on 27 November 2019 and provided to her the letter at [9]. He informed her that as a result of her actions she would be excluded from the incentive plan for the period October 2019 – December 2019 and it would be reviewed in March 2020. Ms Tang replied that she did not agree that the practice was unacceptable and repeated that Mr Brierley had encouraged the practice.

[60] In discussing billable hours, Ms Shackley stated that UPG recognises that Ms Tang had not previously performed QA or service and calibration work, and accordingly it would be fair for Ms Tang to complete a timesheet allocating the hours she is spending on each job per day. The timesheets would be considered weekly with a review at the end of the month.

[61] On 2 December 2019, Mr Brierley discussed Ms Tang’s performance and invoicing practices with Mr Elliott. Mr Elliott stated he would meet with Ms Tang to reiterate the company’s expectations on 3 December 2019.

[62] Mr Brierley and Ms Shackley had planned to meet with Ms Tang on 23 January 2020, however that was moved back to 29 January 2020 where Mr Brierley met with Ms Tang. His evidence, which he shared with Ms Shackley later that afternoon is that Ms Tang said, “If I am not in the bonus scheme I am not going to be motivated to improve.” Further, Ms Tang informed Mr Brierley that if she was required to meet the billable time requirements then her work would be compromised. His evidence is she stated, “I can do the work quicker for you but you will lose quality. I can do it if that is what you want.” Mr Brierley informed Ms Shackley that he considered that Ms Tang would do the bare minimum in her role.

[63] Ms Tang had informed Mr Brierley during the meeting that if UPG wanted her to replace a broken screen, she could do that, but not complete the full functional testing. He considered that she would be increasing her billable hours but compromising the quality of the work completed. In oral evidence during the hearing Mr Brierley considered that Ms Tang was making an ultimatum; that unless she was put on the incentive scheme she would not be motivated and would then skip tests. His recollection is that she didn’t say which tasks would be left off. He was concerned as he knew that a complete set of tests needs to be conducted.

[64] Mr Brierley’s evidence is that he and Ms Shackley had hoped to have seen demonstrated improvement in performance and punctuality which would have resulted in Ms Tang being reinstated to the incentive plan. Mr Brierley and Ms Shackley concluded that they should consult with the Managing Director to discuss termination of Ms Tang’s employment.

[65] On 30 January 2020, Mr Brierley met with Ms Shackley following her meeting with the Managing Director where a decision was made to dismiss Ms Tang.

[66] Mr Brierley and Ms Shackley met with Ms Tang on 3 February 2020. Ms Shackley opened the meeting by informing Ms Tang that upon review of her performance from November, December and January, the company had not seen a sufficient improvement in performance. She was asked if she could offer any reason why her employment should not end for failure to perform in her role.

[67] Ms Tang replied that she considered that her performance had improved in January. Ms Tang was then presented with the pre-prepared letter of termination at [13].

[68] Ms Tang responded that she did believe that her performance had improved. Ms Shackley replied that the data did not demonstrate that, the deciding factor was Ms Tang’s attitude towards her work, the training that had been offered to her, her comments about not being motivated and saying words to the effect that she would only do the bare minimum. Ms Shackley advised that she had sat in three meetings with her and had never heard from Ms Tang a desire to improve her performance.

[69] Ms Tang then questioned the data provided by Mr Brierley. Mr Brierley considers that the data is accurate, coming from two sources. He explained that the most relevant data is that provided by the supplier, and the data within the AX programme cannot be used for comparison.

[70] Mr Brierley used the first three weeks of January 2020 in assessing the data. This included 14 working days for Ms Tang. Mr Brierley’s evidence is that the last week of January 2020 was not used because of the time required to collate information from the two sources. He considered that there had been six weeks between Ms Tang’s first notification to improve her performance and the conclusion of the time frame from the data used.

[71] Mr Brierley explained that of the four technicians employed, only one predominantly works on total station service and calibration and QA work, another technician frequently, one rarely, and one not at all. The spreadsheet used to measure Ms Tang’s performance shows the technician who recorded the highest average billable hours over the selected date range as well as the technician who recorded the second lowest.

[72] Following discussion at the meeting Ms Shackley confirmed the decision to terminate Ms Tang’s employment.

[73] The table reproduced below setting out Ms Tang and other staff’s billable hours was annexed to Mr Brierley’s witness statement:

Teresa
MONTH	Working Days	Invoiced	Warranty	Total	Hours in Total	Hours per day	Hours per week
August	20	4043	1300	5343	41.1	2.05	10.27
September	19	2080	715	2795	21.5	1.13	5.66
October	21	4264	2275	6539	50.30	2.39	11.97
November	9	815	715	1530	11.77	1.31	6.54
December	14	2275	2145	4420	34	2.43	12.15
January	14	2080	1634.59	3714.59	28.57	2.04	10.20

Sam
MONTH	Working Days	Invoiced	Warranty	Total	Hours in Total	Hours per day	Hours per week
August	20	8390	5720	14110	108.54	5.43	27.13
September	21	6800	4485	11285	86.80	4.13	20.67
October	23	8035	4290	12325	94.81	4.12	20.61
November	13	5900	1430	7330	56.38	4.34	21.69
December	14	8257.50	3250	11507.50	88.52	6.33	31.65
January	14	3545	3163.33	6708.33	51.60	3.68	18.40

Aaron
MONTH	Working Days	Invoiced	Warranty	Total	Hours in Total	Hours per day	Hours per week
August	21	20244	260	20504	157.72	7.51	37.55
September	19	20170	195	20365	156.65	8.24	41.22
October	22	21582.82	455	22037.52	169.52	7.71	38.53
November	21	24171.64	0	24171.64	185.94	8.85	44.27
December	14	18835	390	19225	1477.88	10.56	52.80
January	22	29604	585	30189	232.22	10.56	52.77

Julio
MONTH	Working Days	Invoiced	Warranty	Total	Hours in Total	Hours per day	Hours per week
August	21	17880	195	18075	139.04	6.62	33.10
September	17.5	13940	0	13940	107.23	6.12	30.64
October	19.5	14280	65	14345	110.35	5.66	28.29
November	21	15325	195	15520	119.38	5.68	28.42
December	14	8655	592.54	9247.54	71.13	5.08	25.40
January	14	12980	0	12980	99.85	6.65	33.25

James
MONTH	Working Days	Invoiced	Warranty	Total	Hours in Total	Hours per day	Hours per week
August	15	6765	3640	10405	80.04	5.34	26.68
September	20	13735	5131.50	18866.80	145.13	7.26	36.28
October	23	11845	4829.50	16674.50	128.26	5.57	27.88
November	18	8792.50	1891.50	10684	82.18	4.57	22.83
December	14	5375	2886	8261	63.55	4.53	22.65
January	16	5995	2288	8283	63.71	3.98	19.90

Evidence of Ms Shackley

[74] Ms Shackley is the HR Manager of UPG. Ms Shackley’s evidence is that she met with Ms Tang on the following dates to discuss her performance:

• 12 July 2016;

• 20 November 2019;

• 27 November 2019;

• 3 December 2019; and

• 3 February 2020.

[75] On 18 November 2019, Ms Shackley met with Mr Brierley to discuss Ms Tang’s performance. Ms Shackley prepared a letter requiring Ms Tang to attend a meeting on 20 November 2019. Ms Shackley attended the meeting. Her evidence largely echoes Mr Brierley’s evidence as to what was said at the meeting.

[76] As a result of Ms Tang’s assertions that everybody charges parts as labour, Ms Shackley met with a number of people within the business; all confirming that the kind of conduct Ms Tang had engaged in was not condoned nor acceptable.

[77] Ms Shackley attended a meeting with Ms Tang on 27 November 2019. It is her evidence that Ms Tang did not agree that the incorrect invoicing of clients was not acceptable, and she repeated her earlier assertion that Ms Brierley encouraged the practice.

[78] Ms Shackley attended a further meeting with Ms Tang on 3 December 2019 with Mr Elliott in attendance. Mr Elliott addressed his concerns with Ms Tang and informed her that if the company did not see real improvement with her performance her employment may be terminated.

[79] Ms Tang stated at the meeting that she wanted to start doing the service work, however Mr Elliott reminded her that she did not wish to be trained on that kind of work. Ms Tang replied that she had not said that, but instead had stated that she wanted to be trained by Trimble. Ms Shackley understood that to mean that Ms Tang wished to be sent to China for the training. Ms Schackley responded, “Explain to me why we should put you through additional training when you have not shown that you are willing to work to improve.”

[80] Ms Shackley spoke with Mr Brierley on 29 January 2020 following a meeting he had held with Ms Tang that morning. Ms Shackley’s evidence is that Mr Brierley expressed concern about Ms Tang’s comments regarding being removed from the incentive plan, despite the fact he had confirmed that he hadn’t seen any further incorrect invoicing and had seen an improvement in her punctuality and a slight improvement in her billable hours.

[81] Ms Shackley’s evidence is that Mr Brierley reported to her that Ms Tang did not appear to be motivated and she would only be doing the bare minimum until she was put back on the incentive plan. Ms Shackley and Mr Brierley concluded that for the following reasons it was necessary to seek guidance from Mr Elliott as to whether the employment should continue or not:

• Ms Tang’s previous conduct;

• Her attitude towards training diversifying her skills;

• Her under-performance;

• Her negative impact on the team; and

• Her lack of punctuality.

[82] On 30 January 2020 Ms Shackley met with Mr Elliott to discuss Ms Tang’s fraudulent billing, her ongoing poor performance and her unwillingness to cooperate with her manager to improve her performance. The decision was made to terminate Ms Tang’s employment.

[83] At a meeting with Ms Tang on 3 February 2020, Ms Shackley informed Ms Tang that upon review of her performance from November, December and January, the company had not seen an improvement in her performance. She was asked if she could offer any reason why the company should not terminate her performance for failure to perform her role.

[84] Ms Tang responded that she believed her performance had improved in January. Ms Shackley presented to Ms Tang a spreadsheet outlining Ms Tang’s performance, detailing the cost her underperformance had on the company. Ms Shackley then presented to her the termination letter.

[85] Ms Tang insisted that she had improved over January. Ms Shackley responded that the data did not support that assertion, and ultimately the deciding factors were:

• Her attitude towards work

• The training that had been offered to her;

• Her comments about not being motivated and saying words to the effect that she would do the bare minimum.

[86] Ms Shackley stated to Ms Tang that she had been present in three meetings and had not heard from Ms Tang a desire to improve her performance. Ms Shackley offered for Ms Tang to collect her belongings if she wished as she was not required to work out her notice period.

Evidence of Mr Elliott

[87] Mr Elliott gave oral evidence during the hearing. His evidence is that when he met with Ms Tang, he gave her clear instructions that she needed to improve her performance and behaviour otherwise it would result in termination of her employment.

[88] Mr Elliott considered that Ms Tang’s change of heart in wishing to perform service work where she had been unwilling in 2014 was very late in the piece for her to show willingness.

Evidence of Mr Keogh

[89] Mr Keogh is a Service Technician and has been employed by UPG since March 2014. He reports into Mr Brierley and worked alongside Ms Tang.

[90] He stated that Service Technicians are encouraged to undertake technician-to-technician training and online training modules provided by Trimble. All technicians are encouraged to collaborate with other team members to fill any training shortages. He stated that the best knowledge share between technicians is to watch others and learn, watching more experienced technicians. Peer learning is acceptable and later accredited, without the substantial costs involved in attending external training.

[91] Mr Keogh stated that he recalled many occasions where Ms Tang rejected internal technician training, responding, “No formal training.” He understood that to mean that Ms Tang wanted to participate in external training only.

[92] Mr Keogh recalled an incident in 2014 when another technician attempted to knowledge-share with Ms Tang. His evidence is that she became agitated with how the training was progressing and threw a 700+ page training manual several metres across the room. The training ceased and Ms Tang never expressed any further interest to have technician-to-technician training.

[93] Mr Keogh stated that knowledge-sharing among technicians is a naturally occurring event. More difficult work is given to more experienced technicians, and others can work alongside the more experienced technician and learn. This process would continue until such time as the technician had reached a level of competence and the supplier advised.

[94] Mr Keogh recalled the Service Delivery Manager announced that an instructor-led training course would being provided in February 2018. His understanding is that Ms Tang had initially agreed to participate in the training, and he later heard that she pulled out days before the training was due to commence.

Evidence of Mr Travers

[95] Mr Travers is an Accounts Receivable Officer of UPG. He has been employed with UPG since 2008.

[96] For a period of three weeks in October and November 2019 he filled in for Mr Brierley when he was on leave. His evidence is that during this time he noticed Ms Tang’s lack of productivity and lack of punctuality. He considered the impact this was having on the morale of the Service Department team members and the level of customer service being provided.

[97] Mr Travers reported his concerns to Mr Elliott. He considered that while he had only been in the acting role for a very short time, Ms Tang might be the worst employee UPG had employed, and he considered the situation was unfair for the rest of the team.

[98] Mr Travers spoke with Mr Keogh and Mr Sam Prakash, Service Technicians. They reported that Mr Brierley always needed to monitor and push Ms Tang to increase her productivity. During his time managing her, Mr Travers asked Ms Tang progress questions and queued new work, however he noticed that there was no real improvement. He stated that team members were not happy with Ms Tang’s work, particularly as the bonus scheme was team-based and they considered that Ms Tang was contributing a minimum effort.

Holiday periods

[99] In response to Ms Tang’s contention that she was disadvantaged by several holiday periods during the 7-week performance review window, UPG submitted that data was provided for several technicians who were all faced with the exact same circumstances across this period. UPG said Ms Tang recorded the lowest number of billable hours out of any technician across this period.

[100] UPG submitted that the holiday periods had little to no impact on the recorded figures. UPG submitted that their supplier in the United States had one day of closed operations for Thanksgiving which had minimal impact on the figures due to the period over which the results were being reviewed. UPG argued that if there was any impact due to the Thanksgiving Day closure, it would inflate the results for December 2019.

[101] UPG further submitted their supplier was closed for a shorter period than UPG over the Christmas and New Year period, and so there were no delays receiving spare parts, technical support or having warranty claims processed. UPG said that spare parts were ordered well in excess of the Christmas break period to avoid delays.

[102] UPG submitted that the Chinese New Year period did not have an impact on the business and the lockdown in China as a result of COVID-19 had not had any impact on the business at the time of Ms Tang’s performance review and dismissal.

Training

[103] UPG submitted Ms Tang was provided with multiple training opportunities during the period of her employment. Technicians are encouraged to collaborate with other team members to fill any training shortages they have, and the predominant method of training is the internal sharing of knowledge from technician to technician. UPG stated that this method is approved by its supplier and gives any technician the ability to complete warranty repairs on its behalf.

[104] UPG submitted that technicians have the ongoing opportunity to complete online testing and examinations which enable them to repair certain products closely related to previous generations of products. All technicians are given the opportunity to work with more experienced technicians to gain the required knowledge to work on a range of products.

[105] As noted within witness evidence, Ms Tang was offered additional training via internal technician to technician knowledge-share on many new products, which she refused. Ms Tang also declined an offer to be included in an instructor-led training course in February 2018.

[106] UPG submitted that the timesheet Ms Tang was required to complete following the performance meeting on November 27 2019 was specifically designed to measure actual hours spent on specific repair or service work versus how much labour was billed to the customer or claimed for under warranty from the supplier. The timesheet was designed and implemented to provide an understanding of the difference between those hours billed or claimed for under warranty versus the hours worked. UPG said Ms Tang was the only technician who was asked to complete this.

[107] UPG said that several informal discussions were held between Ms Tang and Mr Brierley regarding the contents of the timesheet between the initial request for it to be completed on 27 November 2019 and the meeting on 29 January 2020, but these discussions were informal and were not documented.

Termination meeting of 3 February 2020

[108] UPG submitted that Ms Tang was told why she was being dismissed at the meeting scheduled for 3 February 2020. UPG submitted that Ms Tang was provided with prior written notice of the meeting on 31 January 2020 and told that the meeting was to discuss serious ongoing issues regarding her performance.

[109] At the meeting, Ms Tang’s level of productivity, specifically her recorded billable hours, was discussed. UPG confirmed at the meeting that prior meetings regarding productivity levels had been held with Ms Tang on 20 November 2019, 27 November 2019, 3 December 2019 and 29 January 2020, and it confirmed they had investigated the reasons provided by Ms Tang for her continued lack of productivity, being the types of repairs that she did. UPG submitted that it confirmed with Ms Tang that despite a thorough investigation, UPG did not find the matters raised by Ms Tang to be valid. Ms Tang was advised she was to be terminated effective immediately with five weeks’ payment in lieu of notice. Ms Tang was provided with a letter of termination at the meeting.

Recording of conversations

[110] Despite the laws of Queensland seemingly permitting the recording of conversations without the second party’s knowledge, I very often have strong views as to whether I will ordinarily permit recordings of conversations, particularly in the workplace, to be accepted into evidence. It is not conduct that I typically encourage or condone. Recording individuals within the workplace without their knowledge is, I consider, in most cases, underhanded and unacceptable. I will, however, consider each matter presented before me on a case-by-case basis. It is often a course of conduct not acceptable within relevant employers’ workplaces because of stated workplace policies.

[111] Ms Tang made recordings on a device for many of her performance counselling sessions. I have had the benefit of listening to them, however I have not had them professionally transcribed. I have made some notes when listening to the recordings.

[112] I accept that during the meeting of 27 November 2020 when Ms Shackley was informing Ms Tang of the penalty that would be imposed on her (not being entitled to incentive payments for the period October – December 2019 with a review of the following quarter), Ms Shackley said words to the effect, “You should have asked that you wanted to record it. But if that’s what you want to do it, that’s fine.” Mr Brierley was in attendance during this meeting so he would have understood that Ms Tang was recording the conversation.

[113] Having had the benefit of listening to the recordings, I consider that Mr Brierley, Mr Elliott and Ms Shackley have at all times used appropriate tone with Ms Tang. I do not consider that they were at all rude or condescending. Even when there was disagreement with Ms Tang, Mr Brierley, Mr Elliott and Ms Shackley were not overbearing with Ms Tang.

[114] During the meeting of 3 December 2019, Mr Elliott and Mr Brierley provided strong guidance to Ms Tang with the following statements made (crudely transcribed):

Male voice:	I want to be clear. The invoicing I’m very disappointed. It’s the fabric of the team. I look at it as cheating. Janice said you said everybody did it.
Ms Tang:	Not everybody.
Male voice:	We’ve put a lot of time into the investigation. I want a bit of honesty and truth. It’s serious. We put that to the side. Punctuality and billable hours, you have to get that up. If you’re honest with yourself that’s been drifting. The timesheeting will help. Janice investigated and it didn’t stack up. It could result in the end of your employment. If we put the cheating aside, we’re at a crossroads. It’s affecting the rest of the team and going against all the values we’ve tried to instil. If you want to be onboard you need to be part of the team. Be punctual, contribute. If you’re honest with yourself, you’d know your performance is not good. You need to know what next.
Ms Tang:	I’m disappointed some people say something. Now they’re saying no I didn’t do it. That’s fine.
Male voice:	Where’s the truth? It’s simply not there.
Ms Tang:	I want to start doing service.
Male voice:	That’s interesting because we’ve spoken about this for years, but you’ve never wanted to do it.
Ms Tang:	I said I wanted to be trained by Trimble.
Male voice:	That’s not possible.
Ms Tang:	Last time Trimble came over I didn’t get the chance.
Male voice:	It’s my understanding you were booked in but you pulled out at the last minute.
Ms Tang:	No.
Male voice:	I remember asking you years ago diversifying your skills but you didn’t want to.
Ms Shackley:	Why should we offer you additional training if you’re not arriving at work on time and not hitting targets.
Male voice:	The repair does take time but the service is a lot easier and bills a lot of hours. Trying to cheat the system, it’s like a dagger in my heart. I’m pretty disappointed. I won’t have a Trimble guy here for a long time. I suggest you focus on the behaviour, the motivation, filling the time sheet, get it back on track. We’re clear on what we need from you and expectations. Cheating and fraudulent activity is not acceptable. Turning up on time and punctuality and working with the team is what we want. If you can’t meet that there’s no spot here. It’s all up to you now. We’ve laid out what we need. We’ve looked into what you’ve said.

[115] I have reviewed the recording of the meeting between Mr Brierley and Ms Tang on 29 January 2020. The recording is crudely transcribed below:

Mr Brierley	There are no ongoing problems with incorrect charging, and punctuality good. Discuss billing. There are far too many jobs where you are working on the jobs for longer than the we can bill them.
Ms Tang:	I agree.
Mr Brierley:	With your experience I expect you to get through jobs much quicker.
Ms Tang:	About half my job is warranty job.
Mr Brierley:	I understand. On one job you’ve spent five hours on it and we can only bill for two hours. That is not reflected in other technician’s data. I can understand if you spent three hours, but there are two of these where you’ve spent five hours on jobs. There are pretty much no jobs where you break even. Every job is a loss.
Ms Tang:	Most warranty jobs is at a loss.
Mr Brierley:	I wouldn’t have thought so. [he named a few]. Other technicians would do that in 1.5hrs – 2 hrs. Your billables compared to everybody else’s is so much lower. We need to see an improvement there. On the whole we should be able to recover our costs. Every repair we’re losing money. If I was asked if I need that many techs I would have to say no because you’re costing the company money. We’re losing money. Do you have anything further to say on that?
Ms Tang:	Warranty job, you need to expect double the hours to do it.
Mr Brierley:	No, I don’t agree.
Ms Tang:	We need to spend two hours but can only charge one hour.
Mr Brierley:	It shouldn’t take two hours for a screen. There needs to be an improvement. You must be conscious of how much time you’re spending on it versus how much time you’re billing. More often than not we need to be in front. Most of your jobs we’re losing on it. You’re experienced enough to know what to do and manage your time more appropriately. Anything you need to discuss with me?
Ms Tang:	The bonus plan.
Mr Brierley:	I need to discuss with Ben and Janice. They’ll need to see an improvement in the billables before they can sign on so there’s a few months to go.
Ms Tang:	To be honest, if I’m not in the bonus scheme I will not have motivation.
Mr Brierley:	If you don’t want to be motivated, I’m telling you now your billables need to increase. Whether you need that motivation is arbitrary. We need to see an increase regardless.
Ms Tang:	Like I said if I’m not doing service my billable hours will be the lowest.
Mr Brierley:	Sam doesn’t do much service, he might do one or two a month.
Ms Tang:	He bills four to five hours.
Mr Brierley:	Sam has done a lot more hours than you. He’s not really doing service work. I will discuss that with Ben and Janice regarding incentive scheme and get back to you.

[116] Having reviewed the recording of the termination meeting of 3 February 2020, I am satisfied that Ms Shackley commenced the meeting as follows:

Ms Shackley:	We’ve had a lot of meetings. No marked improvement and no appetite to change. So the decision has been made to terminate your employment. Effective immediately with five weeks’ notice.
Ms Tang:	What do you mean no improvement? I’d like to see the figures
Ms Shackley:	You’re not motivated you’re only going to do the bare minimum so decision made to terminate.

[117] Later in the conversation the following was said:

Ms Shackley:	Theresa, we’re probably going around in circles. The deciding factor is because we’re not seeing any appetite to work alongside You told Michael you’ll only do the bare minimum.
Ms Tang:	I didn’t say I would only do the bare minimum.
Mr Brierley:	That’s what you said.
Ms Tang:	I didn’t say that.

[118] Ms Shackley concluded the meeting with the following statements:

Ms Shackley:

You can’t keep costing the directors money, month after month.

You were told your employment was on the line and you need to demonstrate marked improvement.

It’s not good for you and not good for the rest of the business.

This is the letter of termination confirming the termination.

[119] I have determined to admit the recordings into evidence given the probative value of the recordings having regard to at least one contested fact; whether Ms Tang stated that she would only do the bare minimum. As I have earlier stated, I have also considered it useful to have regard to the manner in which UPG management spoke to Ms Tang, which does not prejudice UPG at all. In fact, I have been complimentary of UPG witnesses on this issue.

Consideration

Section 387 of the Act

[120] 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: 1

“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.”

[121] I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter. 2

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)

[122] 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.”

[123] There is no doubt that UPG was aggrieved by the allegation made by Ms Tang, when confronted with her falsified billing of second-hand parts as labour, that others within the business did the same, and Mr Brierley was in on the arrangement or condoned it. I am satisfied that a thorough investigation was conducted by Ms Shackley, with relevant individuals interviewed, and her findings were sound.

[124] Ms Tang’s allegation upon being caught out on this improper conduct was false. Even after she was presented with the findings of the investigation, she still maintained that Mr Brierley was part of the arrangement. Her continued conduct in asserting that allegation against Mr Brierley was, in my view, unconscionable and foolish.

[125] It seems, however, that UPG did overcome this breach of employment obligation by Ms Tang, by decreeing that she would not be eligible for the team incentive payment for the quarter October to December 2019, and this would be reviewed in the following quarter. UPG concluded that this was an appropriate punishment, and I have no reason to doubt the genuineness and reasonableness of the decision. Ms Tang was informed of UPG’s decision.

[126] Other discoveries were made at this time, regarding punctuality and lack of billable hours. UPG set about requiring Ms Tang to record her hours and it is evident that her punctuality improved.

[127] Ms Tang was encouraged to improve her billable hours. I accept the evidence that Ms Tang was the worst-performing technician, despite her many years of service. Further, I accept that Ms Tang had, for many years, resisted service work which would increase her billable hours. In my view, she did so because she had been hiding “under the radar” and it had not been strongly put to her in very recent years that this was an issue. It seems it was not an ongoing performance KPI when it could easily have been one.

[128] Disappointingly, Ms Tang was not informed during the counselling sessions held with her how much improvement was needed to keep her role secure. She was indeed informed that improvement was required, but not informed of the quantum required. Understandably, when she did improve her performance and was presented with figures during the meeting of 3 February 2020, she correctly asserted that she had improved her performance.

[129] Without understanding the billable hours that she was required to meet, it is difficult for UPG to maintain that the improvement she had made was not satisfactory.

[130] What is clear, however, is that during the meeting of 29 January 2020, while Mr Brierley provided qualified praise to Ms Tang on two areas of improvement (punctuality and no further incorrect invoicing), and he reinforced the need for improved billing, the issue of the bonus scheme was discussed.

[131] Having listened to the recording, Ms Tang stated, “To be honest, if I’m not in the bonus scheme I will not have motivation.” Such a statement may be taken a number of ways. It may be perfectly acceptable for an employee who considers that they are improving and has improved to urge their employer to withdraw the sanction. I accept that was the effect of Ms Tang’s request.

[132] However, Mr Brierley’s evidence during the hearing is that he considered it to be an ultimatum. He considered that Ms Tang would, if pressed to work faster, fail to do all necessary tests on items when that was not acceptable. As I have said earlier, Mr Brierley’s tone and temperament during this conversation was polite and measured. He did not challenge Ms Tang on her statement. He concluded the meeting by informing her that he would have to discuss the issue with Ms Shackley and Mr Elliott. He did not put to her that she had improperly put an ultimatum to him.

[133] It appears to me that Mr Brierley then reported to Ms Shackley that Ms Tang had stated that she would not be motivated and that she would do the bare minimum. Mr Brierley’s evidence at [63] is that he said to Ms Shackley that he considered that Ms Tang would only do the bare minimum.

[134] Ms Shackley’s evidence at [81] is that Mr Brierley reported to her that Ms Tang did not appear to be motivated and she would only be doing the bare minimum until she was put back on the incentive plan.

[135] Ms Shackley then met with Mr Elliott and the decision was made to dismiss Ms Tang. During the meeting of 3 February 2020, Ms Shackley launched into informing Ms Tang at [116 and 117] that she had reported to Mr Brierley that she would only do the bare minimum. This was incorrect.

[136] When Ms Tang protested that she had not said that, Mr Brierley responded, “That’s what you said.” Having had the benefit of the recording, I am satisfied that Mr Brierley was incorrect about that statement and that occurrence.

[137] The reason for dismissal provided in the letter at [13] does not traverse the issue of Ms Tang’s lack of motivation or any statement that she had made saying that she would offer only the bare minimum. This was, however, the reason offered by Ms Shackley at [117] during the meeting. A termination letter had earlier been prepared and was issued to Ms Tang at the meeting. She was informed of the dismissal at the commencement of the meeting.

[138] The termination letter offered the reason for dismissal being that since the various meetings with her there had been no improvement in her performance. This was incorrect as there had been improvement.

[139] As I have stated, Ms Tang did not make such a statement, however she did say that if she was not on the plan she will not have motivation. I consider a statement that she will not have motivation if she is not on the plan, and a statement that she would do the bare minimum to be sufficiently differentiated.

[140] Having regard to what I understand to be the reasons for the dismissal, being that management considered that Ms Tang had stated that she would do the bare minimum, and her billable hours, whilst they had improved, had not improved to what UPG considered to be an acceptable standard, I am not satisfied that there was a valid reason for the dismissal.

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

[141] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 3 and in explicit4 and plain and clear terms.5

[142] Ms Tang had been warned that she needed to improve several areas of her performance and conduct. In the meeting held on 29 January 2020, Mr Brierley assured Ms Tang that she had improved relevant to her punctuality and correct invoicing. Given that I consider that part of the reason for the dismissal included management’s incorrect assertion that she had stated that she would do only the bare minimum, this was not ever put to her prior to the dismissal. This is so because at the commencement of the meeting on 3 February 2020, Ms Shackley informed her that she was being dismissed.

[143] These discussions relevant to Ms Tang’s alleged statement were discussed between Ms Shackley, Mr Brierley and Mr Elliott.

[144] Ms Tang’s failure to improve was notified to her as is clear from the recording of the meeting dated 29 January 2020. However, she was not notified of the level of improvement required.

[145] I am not satisfied that Ms Tang was notified of part of the reason for the dismissal.

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

[146] Meetings were held with Ms Tang over the last few months of 2019 and the early parts of 2020 to discuss the very serious incident of the incorrect billing, her punctuality and lack of satisfactory billable hours. I am satisfied that Ms Tang was provided with an opportunity to respond to these reasons, at least one of which formed part of the reason for the dismissal that being the lack of satisfactory billable hours.

[147] Ms Tang was not given an opportunity to respond to the incorrect assertion that she had stated that she would do the bare minimum, prior to notification of her dismissal which I have found formed part of the reason for the dismissal.

[148] Disappointingly, the meeting of 3 February 2020 commenced with a notification of dismissal and the letter was produced at the conclusion of the meeting. By notifying the dismissal at the commencement of the meeting, no regard was had for Ms Tang’s submissions during the meeting, nor her denial of stating that she would do the bare minimum. Her denial of the statement was not believed, and Mr Brierley incorrectly asserted that she had made that statement.

[149] I am not satisfied Ms Tang was given a reason to respond to all of the reasons for the dismissal.

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 dismissal

[150] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present. This does not mean there is a requirement for an employee to be offered a support person by an employer – rather, there cannot be an unreasonable refusal where an employee requests a support person.

[151] Ms Tang said she was not given an opportunity to have a support person present at meetings and did not formally request a support person at the meetings. She said the notices for three of the meetings, being 2 December 2019, 3 December 2019, and 22 January 2020, did not advise her that she could bring a support person. Ms Tang further submitted that the meetings were scheduled at short notice or were rescheduled at times or did not start and finish when planned, limiting her ability to arrange a support person.

[152] UPG did not make direct submissions on this point but indicated that Ms Tang did not request a support person.

[153] The notices for the meeting on 20 November 2019 and 27 November 2019 clearly identify Ms Tang was welcome to bring a support person to the meetings. She also received notice that she could bring a support person to the meeting on 3 February 2020. Ms Tang appears not to have availed herself of this opportunity.

[154] The Act specifically requires consideration of whether there was an unreasonable refusal of a support person only. In this case, Ms Tang did not ask for a support person, and as such UPG could not have unreasonably refused. Ms Tang was put on notice at the beginning of the process that she could have a support person present at the meetings on 20 November 2019 and 27 November 2019, and was provided an opportunity to have a support person present on 3 February 2020. Ms Tang did not raise her concerns regarding the scheduling of the meetings with UPG at any time.

[155] I do not consider Ms Tang was unreasonably denied a support person at any of the meetings relating to her dismissal.

s.387(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[156] UPG submitted Ms Tang had been put on notice of her unsatisfactory performance on 20 November 2019 and was aware of its concerns going into the meeting on 3 February 2020.

[157] Ms Tang accepted she was first told her billable hours were low on 18 November 2019 when the notice of the first performance meeting was handed to her. She accepted that issue in relation to her billable hours was also addressed at the performance meetings and written in the minutes of the meeting on 27 November 2019.

[158] I find that Ms Tang was warned about her unsatisfactory performance before the dismissal. It was not, however, made clear to her how much her performance would need to improve. The warning letter dated 28 November 2019 discussed potential termination relevant to the invoicing issue, but not relevant to billable hours. The letter stated that it would be reviewed regularly.

[159] I accept that Ms Tang was informed by Mr Brierley in the meeting of 29 January 2020 that the issue regarding billable hours was a very serious issue, and he raised the importance with her of many of her jobs costing the business. I note, however, that there was very little time between the meeting of 29 January 2020 and the date of termination being 3 February 2020.

s.387(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

[160] UPG employs approximately 66 staff. UPG did not make any specific submissions on this point but indicated that it did not believe the size of their enterprise impacted on the procedures followed in effecting the dismissal.

[161] I am satisfied, having regard to the size of the business that there was likely no impact on the procedures followed in effecting the dismissal.

s.387(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

[162] UPG indicated that it had dedicated human resource management specialists and expertise. I am satisfied that this expertise means this factor is not relevant.

(h) any other matters that the FWC considers relevant

[163] I have had regard to Ms Tang’s considerable service with UPG, together with her age of 55 years.

Conclusion

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

[165] I note that Ms Tang was tasked and indeed directed to improve her productivity, which she did. It was not, however, to the satisfaction of management. Management, however held an incorrect view as to Ms Tang’s commitment to the organisation. It was never put to her that she had stated that she would do the bare minimum. I am satisfied that this incorrect view was persuasive in UPG’s decision to dismiss Ms Tang.

[166] While Ms Shackley stated numerous times in the termination meeting of 3 February 2020 that she considered that the business had met with Ms Tang on a large number of occasions, and she considered that they were going around in circles, in the scheme of Ms Tang’s reasonably long service with the business and her modest improvement, together with my concerns above at [165] I consider the dismissal to be unjust and unreasonable.

[167] In coming to that conclusion, I have also given weight to the views of UPG management that Ms Tang’s offer to do service work was a little too little, too late. I accept that management didn’t consider Ms Tang’s request to do service work to be sincere. It is surprising, however, that attention to Ms Tang’s lack of billable hours did not arise until late 2019, and presumably because of the report of Mr Travers to Mr Elliott that he considered Ms Tang to possibly be the worst employee UPG has ever had. Where Mr Brierley could have applied performance measures over many years, and driven employees to improve and excel, with visibility of their billable hours, this did not occur.

[168] Further, I conclude that the manner in which the dismissal took effect on 3 February 2020 was harsh. Ms Tang understood she needed to improve, and she had. She was not provided with any genuine opportunity during the meeting of 3 February 2020 to influence the decision because it had been communicated at the commencement of the meeting and the termination letter produced at the end of the meeting.

[169] Throughout my career as an employment lawyer, and now as a Member of the Commission, I have always cautioned employers against meeting with employees to learn information from them to determine whether to dismiss or not, while holding a termination letter in one’s back pocket or in the drawer. I consider it appropriate for employers to, generally speaking, meet with employees and their representatives, discuss the issue, take some time to consider the employee’s response and position, and then if the decision is made to terminate the employment, that can be communicated orally. A termination letter can follow. Having a pre-prepared termination letter typically demonstrates pre-judgment and lack of consideration to what is put by the employee during the meeting.

[170] I find that Ms Tang’s dismissal was harsh in the manner it was undertaken.

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

Remedy

[172] 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.”

[173] Ms Tang 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.

[174] I consider that there are two reasons why reinstatement is inappropriate. The first is Ms Tang’s credibility relevant to her continued assertion that Mr Brierley had supported and condoned charging customers for labour when it was for second-hand parts. The investigation was sound, yet Ms Tang continued to make a false assertion against Mr Brierley. Whilst a moderate sanction was instituted relevant to this issue, considered objectively, in my view, and many months after the dismissal, this is a difficult and unfair slight on Mr Brierley. With the passing of time, he should not be required to have Ms Tang return to the workplace where Ms Tang has continued to assert in this Commission that same allegation which I have determined is not true.

[175] Secondly, I do not consider that Ms Tang’s employment would have continued for very long, and it would be inappropriate to reinstate Ms Tang when she wasn’t covering her own labour costs on account of her unsatisfactory billable hours.

[176] I am satisfied that it is inappropriate to order reinstatement.

[177] I now turn to consideration of compensation.

Compensation

[178] 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

[179] 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.⁶ 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;⁷ Jetstar Airways Pty Ltd v Neeteson-Lemkes⁸ and McCulloch v Calvary Health Care (McCulloch).⁹

[180] 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

[181] Given the size of UPG this is a neutral consideration.

The length of Ms Tang’s service

[182] Ms Tang had approximately 11 years’ service. This is a long period of time. Ms Tang stated that she arrived in Australia from New Zealand in 2008, and I accept that for the majority of her time living in Australia she was employed by UPG.

[183] Ms Tang had a full entitlement to long service leave such that when she was dismissed, she was paid outstanding long service leave.

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

[184] I have determined that Ms Tang would have been hesitant or reluctant to enthusiastically take on peer training in order to improve her performance. She had held out for many years and had insisted on being trained by Trimble at a cost to the business. By early 2020 the business was not interested in external training, and Ms Tang would have been required to accept peer training which in my view she would have been unlikely to embrace.

[185] Despite immediate improvement in Ms Tang’s punctuality, I am of the view that Ms Tang would have been unlikely to have dramatically improved her billable hours in the months of February and March to a standard where she was more than paying for herself.

[186] I have determined that Ms Tang would have continued in her employment for a further six weeks before she would have been dismissed due to insufficient and unsatisfactory billable hours. Ms Tang’s weekly rate was $1,260.76 gross. I consider that she would have then been provided with five weeks’ notice of termination from that point.

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

[187] Ms Tang stated during the hearing that she commenced alternative work on 20 April 2020. I am satisfied that Ms Tang made suitable efforts to mitigate her loss.

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

[188] Ms Tang stated during the hearing that her earnings in the new employment are $126.08 gross less per week than her earnings with UPG.

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

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

Other relevant matters

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

Misconduct reduces amount

[191] 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.

[192] 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.¹⁰

[193] Any misconduct Ms Tang might have engaged in relevant to the inappropriate billing of a customer did not contribute to UPG’s decision to dismiss her. This is evident in what was stated by Ms Shackley as the reasons for the dismissal and in the termination letter. Where I have had regard to this issue relevant to reinstatement, it is not a necessary consideration for s.392(3).

Shock, distress etc. disregarded

[194] 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 Tang by the manner of the dismissal.

Compensation Cap

[195] 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.

[196] 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

[197] This is not an appropriate consideration given the size of UPG.

Order of compensation

[198] I have determined that UPG is to pay to Ms Tang the amount of six weeks’ pay at the rate of $1,260.76 gross. This period does not adjoin the period from which Ms Tang commenced new employment, being 20 April 2020 and therefore it is not necessary to have regard to any earnings Ms Tang received in her new employment.

[199] Where Ms Tang received five weeks’ payment of notice, I have determined she would have done so had been dismissed six weeks later, and accordingly I do not consider it appropriate to make any deduction for the notice period even where it may then cross into the period of new employment from 20 April 2020.

[200] UPG is required to pay to Ms Tang the amount of $7,564.56 less tax as required by law within 14 days of the date of this decision.

[201] In addition, UPG is to pay superannuation on the amount of $7,564.56 at the rate of 9.5% into Ms Tang’s superannuation fund within 14 days of the date of this decision.

[202] An Order of compensation [PR723870] will be issued concurrently with this decision.

COMMISSIONER

Appearances:

Tang Q X, Applicant.
Omany A, for the Respondent.

Hearing details:

27 May 2020, Brisbane (by Telephone)

Printed by authority of the Commonwealth Government Printer

1 (1995) 185 CLR 410, [465].

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

3 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151

4 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998)

5 Ibid

6 (1998) 88 IR 21.

7 [2013] FWCFB 431.

8 [2014] FWCFB 8683.

9 [2015] FWCFB 2267.

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

Ms Xiao Qiong Tang v Ultimate Positioning Group Pty Ltd T/A Upg

[2020] FWC 5696

26 OCTOBER 2020

DECISION

Relevant legislation

Remedy

Compensation

Authorities

The length of Ms Tang’s service

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

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

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

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

Other relevant matters

Misconduct reduces amount

Shock, distress etc. disregarded

Compensation Cap

Payment by instalments

Order of compensation