Nicholas Staudt v Best International Group Pty Limited - [2023] FWC 3315

[2023] FWC 3315

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nicholas Staudt
v

Best International Group Pty Limited

(U2023/5387)

DEPUTY PRESIDENT MILLHOUSE

MELBOURNE, 12 DECEMBER 2023

Application for an unfair dismissal remedy

Mr Nicholas Staudt has made an application to the Commission for an unfair dismissal remedy under s 394(1) of the of the Fair Work Act 2009 (Cth) (Act). Mr Staudt alleges he was unfairly dismissed from his employment with Best International Group Pty Limited. The respondent denies that Mr Staudt was unfairly dismissed.

For the reasons that follow, I have concluded that Mr Staudt’s dismissal was not unfair.

Initial matters

For the purposes of s 396 of the Act, it is not in dispute, and I am satisfied that, the application was made within 21 days of the dismissal taking effect; Mr Staudt was protected from unfair dismissal within the meaning of s 382 of the Act; the Small Business Fair Dismissal Code did not apply to Mr Staudt’s dismissal; and the dismissal did not arise by way of redundancy and so it was not a case of genuine redundancy.

Context

The respondent provides information technology field technicians to other information technology service providers.

Mr Staudt commenced employment with the respondent on 20 September 2022 as an account manager. Mr Staudt was employed to work on a part time basis for 30 hours per week.[1] For the period to 20 April 2023, Mr Staudt reported to the respondent’s Managing Director, Mr Dean Yates.[2] From 21 April 2023, Mr Staudt reported to Mr Chris Denis who holds the role of National Sales Manager.[3] Mr Staudt’s employment was terminated for serious misconduct on 16 June 2023.[4]

Mr Staudt’s application was the subject of a hearing on 15 September and 19 September 2023. Mr Staudt gave evidence on his own behalf. The respondent led evidence from Mr Yates and Mr Denis.

A significant amount of documentary evidence was filed by the parties in relation to this matter. Where this evidence raises material considerations, it is addressed in the analysis that follows.

Relevant background

In his role as an account manager, Mr Yates says that Mr Staudt was responsible for:[5]

(1)managing the relationship between the respondent and a group of accounts that were assigned to Mr Staudt;
(2) identifying opportunities for further sales within the accounts assigned to Mr Staudt; and
(3)attracting new customers to the respondent and opening new accounts.

Mr Staudt contests that (3) above formed part of his responsibilities.[6] Mr Staudt submits that the role of an account manager involves managing named accounts and does not extend to attracting new clients.[7] Mr Staudt explained that the “main focus” of his role was to “generate sales” and “that meant meeting with [his] clients.”[8] Mr Staudt says that the representations he allegedly made to the respondent about converting certain targets into active accounts with the respondent was a “bonus” and not a requirement of his role.[9]

Mr Staudt accepts that he was employed to work 30 hours per week. However, it is not in dispute that until approximately February or March 2023, Mr Staudt held the erroneous view that he had been employed to work 20 hours per week.[10]

Commission structure

Mr Staudt’s contract of employment dated 13 September 2022 relevantly provides the following with respect to the payment of commission:[11]

“Commission

No commission is payable for achievement up to 70% of target in any given quarter.

Commission will be paid above 70% of target, in 1% increments against actual sales achievement. E.g. 89% achievement of sold margin in a quarter will result in a commission payment of 89% of the 30% commission component.

Sales commission will be paid quarterly at the rate of the achievement against the quarterly target. The quarterly commission will be paid at a rate of 80% for each quarter throughout the financial year with a true up in the final quarter of the financial year against the annual target.”

Mr Yates gave evidence that Mr Staudt’s remuneration structure provided him with a potential total commission of $37,500 which would be paid in full upon Mr Staudt achieving sales of $1 million (gross margin). Partial commissions would be paid once 70% of the target was achieved. Accordingly, Mr Yates says that Mr Staudt’s on-target earnings were $125,000 per annum.[12]

On 20 September 2022, Mr Yates sent an email to Mr Staudt which was said to outline how the $1 million gross margin target had been determined.[13] It is not in dispute that the respondent paid Mr Staudt his on target earnings, irrespective of sales, for the first quarter.[14] However, for the second and third quarter, Mr Yates says that Mr Staudt did not get close to his on-target earnings or his sales targets.[15]

Mr Staudt’s queries about commission structure

On 27 September 2022, Mr Staudt attended a meeting with Mr Yates and the respondent’s Chairman, Mr David Henderson. Mr Staudt says that during the meeting, he raised three matters for discussion. First, what his sales targets would be for the remaining financial year. Second, the historical data from the previous calendar year extracted from the respondents accounting/CRM systems which indicated that the accounts Mr Staudt had been allocated to manage had spent only $300,000 to $400,000 with the respondent in the previous year. Third, Mr Staudt’s view that a sales target beyond 20-30% of what had been achieved in the previous year would be unachievable. Mr Staudt says that Mr Henderson and Mr Yates agreed with Mr Staudt’s view and “both stated that they would review the results from the first quarter (my probationary period).”[16] However, Mr Yates’ evidence is that Mr Staudt’s target “has consistently been $1 million; $1 million of gross margin sold on an annualised basis.”[17] There is no evidence before the Commission that demonstrates this target changed.

On 21 October 2022, the founder and owner of the respondent company, Mr John McVickers, sent an email to Mr Staudt with the subject line “Agreeing Territory.” The email invited Mr Staudt and another employee to agree on “target partners.”[18] Mr Staudt contends that this email highlights that there was uncertainty around the accounts he was managing. However, I consider it to be apparent from the reference to “target partners” that this email was about businesses that were targeted to become future partners with the respondent, and not a reference to the accounts Mr Staudt was already requested to manage.

Mr Staudt says that on or around 16 December 2022, he sent an email to Mr Yates “formalising” his earlier requests for clarity around his commission plan and account lists/targets. Mr Staudt submits that he was advised by Mr Yates that “he was still sorting this out” and that he had “been promised another one or two accounts so that I could achieve my sales targets.”[19]

Mr Staudt says that on 28 February 2023, Mr Yates sent him a draft commission plan. Mr Staudt contends that there “was still no clarity as to which accounts I was managing.”[20]

On 29 March 2023, Mr Staudt emailed Mr Yates to clarify how the commission reports were “being generated/determined/calculated.” Mr Staudt contends that there had been “ongoing discrepancies in the reporting and CRM systems during this time.” Mr Staudt submits that he had been trying to “determine and clarify what the actual commission structure/plan would be.”[21]

Appointment of Mr Chris Denis

On 21 April 2023, Mr Denis commenced employment with the respondent as National Sales Manager. From this date, Mr Staudt reported to Mr Denis.[22] Mr Yates suggested that Mr Denis conduct a weekly “one-on-one” (1:1) meeting with Mr Staudt.[23]

Head injury

On 26 April 2023, Mr Staudt says that he struck his head whilst attending a client meeting. He says that he notified Mr Yates and Mr Denis of the injury and that he was suffering from concussion. Mr Staudt gave evidence that the business “seemed to be okay” with him receiving medical treatment and taking time off after the injury.[24] Mr Staudt says that the time off to which he refers is an initial 48 hours post-injury.[25] Upon his return to work, Mr Staudt met with Mr Denis who advised Mr Staudt to ensure he was fully recovered. Mr Staudt gave evidence that the issue was not the subject of further discussion between Mr Staudt and the respondent.[26]

Subsequently, Mr Staudt contends that he developed headaches that appeared to be exacerbated by screen time. However, Mr Staudt gave evidence that the screen time issue has only arisen after his dismissal.”[27]

While Mr Staudt contends that after the injury, Mr Yates singled him out in meetings and in front of other staff, there is no evidence of this before the Commission.[28]

Meetings on 1 May and 8 May 2023

On 1 May 2023, Mr Staudt and Mr Denis met for a 1:1 meeting. Mr Staudt said that he did not feel that his concerns regarding his commission structure had been addressed. Mr Denis advised that he would discuss these matters “with management” and work with Mr Staudt. Mr Staudt otherwise contends that no concerns were raised during this meeting about his performance, and was congratulated on recent client work.[29]

On 8 May 2023, Mr Staudt and Mr Denis met for a further 1:1 meeting. Mr Staudt contends that he was advised that the respondent might be able to provide clarity about sales targets in the next financial year. Mr Staudt said that this would not be fair, and that he had been (a) completing work and tasks as required, and (b) achieving beyond what was expected of him and for these reasons, believed that he deserved “to be either paid fully for the work” he had completed or be “given the opportunity to achieve the targets the company expects” of him. Mr Staudt says that again, no concerns were raised about his performance during this meeting.[30]

Grievance lodged in relation to commission structure

On 15 May 2023 Mr Staudt and Mr Denis attended a further 1:1 meeting. Mr Staudt says that Mr Denis advised him that the company would not be able to remedy his concerns regarding commissions. Mr Staudt said that the respondent “had a requirement to either pay me my commission, or provide me the ability to achieve the sales target (namely provide additional clients), or in the absence of providing clients who could spend what was required” the respondent should reduce Mr Staudt’s targets.

Mr Staudt said that he was advised by Mr Denis that the respondent would “not be able to” vary his sales targets and that the targets were “reasonable.” Mr Staudt said to Mr Denis that this was not the case and he had been trying to resolve this matter since his employment commenced. Mr Staudt said that he would send an email formalising his concerns pursuant to the respondent’s grievance policy.[31] Mr Staudt said that he also advised Mr Denis of his intention to take a period of personal leave.[32]

On 15 May 2023, Mr Staudt sent an email to Mr Yates, Mr Denis and Mr Henderson seeking confirmation as to what his commission structure/plan was. The email relevantly provides as follows:[33]

“I hope I wasn’t misled intentionally, but nonetheless, I was led to believe that I would be working at Best and working towards making a commission. I am not happy, and I am not willing to accept that I will simply not be paid my commissions due to these misleading statements and/or unfair contractual terms in my contract.

I need this addressed with urgency. I do not want to wait and see for what happens in the next FY. I still need this matter resolved for the current period.”

Mr Staudt submits that Mr Yates telephoned him on 15 May 2023 sometime later in the afternoon or evening and “threatened” him. Mr Staudt says that Mr Yates “stated that the business would need to reconsider everything.” In response to Mr Staudt asking for clarification about what this statement meant and that it sounded “like a threat,” Mr Staudt says that Mr Yates laughed and said that the respondent will manage him “out” and/or put him on a performance plan.[34]

On 17 May 2023, Mr Yates responded to Mr Staudt’s 15 May 2023 email. In this email, Mr Yates relevantly states as follows:[35]

“While I appreciate your concerns about the sales performance and lack of commissions (which are concerns we also share), I completely disagree that there have been any ‘misleading’ statements nor that your contract is ‘unfair’, and this suggestion is unequivocally refuted.

The fundamental purpose of any sales commission is for an organisation to incentivise its sales staff to either generate or grow sales within their area of operation. It would appear from your email that it was your expectation that the ‘accounts you were given’ would generate enough sales from the commencement of your employment for you to reach your OTE of $125,000 per year. If this was the case, which is an unfortunate misunderstanding on your part, then there would be no basis for us to offer any incentive at all.”

Mr Yates’ email relevantly continued by advising Mr Staudt why he thought the $1 million target “should be easily within” reach within a 12-month period.

Mr Yates said that thereafter, Mr Staudt represented to him, verbally, that he had commenced proceedings in the Victorian Civil and Administrative Tribunal (VCAT) alleging that his contract with the respondent was unfair. Mr Staudt provided the VCAT receipt number to Mr Yates by email.[36] Mr Staudt gave evidence that he later discontinued the VCAT proceedings.[37]

On 23 May 2023, Mr Staudt says that he received a telephone call from Mr Yates and was advised that he needed “to agree to new KPIs.” Mr Staudt says that he advised Mr Yates of his view that there was a lack of clarity about what the respondent expected of him. Mr Staudt says that Mr Yates “suggested” that he did not want Mr Staudt to continue to represent the respondent’s business to clients. Mr Staudt submits that it began to feel like Mr Yates was “harassing” him.[38]

KPIs issued by respondent

On 29 May 2023, Mr Yates sent an email to Mr Staudt attaching a document which Mr Staudt says explained his “expected KPIs” moving forward. Mr Staudt says he was required to agree to them immediately and he felt concerned that no other employees had been asked to agree to KPIs.[39]

The KPIs included a requirement for a minimum of five in person meetings with customers each week, the preparation of pipeline management opportunities in CRM prior to each weekly sales meeting, and a completed account plan in relation to each of Mr Staudt’s named accounts, updated and accurate prior to the weekly sales meeting. The KPI document concluded by stating “Your sales target is as per your sales plan.”[40]

On 30 May 2023, Mr Staudt sent an email in response to Mr Yates regarding the KPIs. Mr Staudt’s email relevantly stated as follows:[41]

“Again, there’s reference to a sales target but no actual figures. One of the key issues I’ve faced and raised a number of times now is the lack of clarity around what the expectations are. Initially when I started there was no clarity. Then eventually I’m told it’s $1m, then I asked for my account list. I eventually get the following accounts and also these ‘new targets’ (see below). After my own investigations I found out my account list I had been managing had approx. $200k in sales. Nothing anywhere near to the targets or historical data suggesting it would realistically be achieved. I raised this early on with David Henderson too.”

Mr Staudt’s alleged 29 May 2023 statement

Mr Denis gave evidence that during his 1:1 meeting with Mr Staudt on 29 May 2023, he sought to provide Mr Staudt with guidance for improving his pipeline. Mr Denis says that Mr Staudt responded to him with words to the effect of, “What’s the point in doing any of that? It’s not like I am going to get any commission out of it. That’s why I’m taking you to court.”[42]

Mr Denis said that after this meeting concluded, he reviewed Mr Staudt’s calendar. Mr Denis then notified Mr Yates that he did not think that Mr Staudt was meeting with clients anymore. Mr Denis said that this was “particularly evident over the fortnight leading up to our one-to-one meeting on 29 May 2023.”[43]

Mr Yates recalls Mr Denis telling him that during his 1:1 meeting that day with Mr Staudt, Mr Denis had offered suggestions to Mr Staudt on improving his sales, and Mr Staudt said to Mr Denis words to the effect of, “What’s the point in working…I am suing you.”[44]

Mr Staudt submits that Mr Denis and Mr Yates’ evidence in relation to what he said during the 29 May 2023 meeting is “incorrect and taken out of context.” Mr Staudt’s position is that he said, “it is unlikely that I would get paid my commissions.”[45] In his oral evidence, Mr Staudt said as follows:[46]

“I do recall the conversation, because, yes, obviously Chris Denis was quite taken back from what I believe he perceived I said. What I said was that there was a large dispute, grievance, around my commission, and it was definitely a frustration for me, and the question was whether I would actually be paid for the work I completed. And that’s when Chris kind of interpreted it that I wasn’t interested in working despite my rejection of that. I claimed and stated, in emails as well, that I was happy to continue working for the respondent. My concern around my commission payments were a separate matter and a separate grievance.”

Mr Staudt says that it became apparent to him that Mr Denis became “agitated from the perception of what I was saying.”[47] Mr Staudt says he did not feel “comfortable or confident” that he would be paid any commissions for sales he made for the respondent and from that, Mr Staudt says that Mr Denis “perceived that I wasn’t interested in making any more sales for the business, and immediately it became apparent that he was concerned about what he perceived that I said.” Mr Staudt says that he addressed those concerns with Mr Denis by explaining that he remained happy to continue working.[48]

Mr Yates conducted a review of Mr Staudt’s calendar. Mr Yates considered it to be apparent that from on or around 15 May 2023 (corresponding with Mr Staudt’s complaint about the commission structure), Mr Staudt had “ceased performing any meaningful work activities” for the respondent. Mr Yates said that this was apparent from the two-week period from 15 May 2023 onwards, which had no entries for any external meetings.[49]

Allegations letter

On 30 May 2023, Mr Yates emailed[50] Mr Staudt a letter inviting him to attend a meeting the following day, 31 May 2023 at 2:30pm. The letter relevantly provides as follows:[51]

“Re: Your Employment with Best Technology

Best International Group Pty Ltd (Best) is very concerned about conduct you have been alleged to have engaged in. It has come to our attention that:

1. You have ceased to fulfil your professional duties and have not scheduled any customer appointments in your diary since 12 May 2023; and
2. You had told another employee of Best that you consider it meaningless to carry out your professional duties as you are initiating a proceeding against Best in the Victorian Civil and Administrative Tribunal.

If your alleged conduct is proven, it will constitute:
• a repudiation of your Contract of Employment given you have abandoned your obligations under your contract demonstrating an intention to no longer be bound by the terms of your Contract of Employment; and
• a serious misconduct within the meaning of ‘wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment’ given by the Fair Work Regulations 2009 (Cth) regulation 1.07.

If proven, your conduct to cease working will be taken as a repudiation of your employment contract which will be accepted by Best and resulting in immediate termination of your employment.

Your Response

I confirm that Best’s view in relation to this matter is preliminary, and no final decision has been made. A final decision will be made after taking into consideration your response to this letter. You are directed to meet with Best to formally respond to this letter and the investigations findings…

You are entitled to bring a support person with you to the meeting. The support person should be present to provide you with support and write notes if necessary.

Once in receipt of your response, Best will review all the information pertaining to the allegations and will make a decision regarding appropriate action to be taken.

Please note that you do not have to make any comments or provide any written material unless you choose to do so. In the event you do not respond as outlined above, Best will be required to consider the incident and alleged behaviour without further input from you and will notify you of its final decision.

Confidentiality

Best’s disciplinary process is confidential. You are not to discuss or disclose these matters with stakeholders or employees of Best or other persons outside Best (with the exception of your legal advisor). Breach of confidentiality may result in further disciplinary action being taken against you including termination of your employment.

We note that there is an existing disagreement between you and Best pertaining to your commission. We assure you that this letter is in no way motivated by the dispute and Best will engage in good faith negotiation with you with regards to the dispute.”

Mr Staudt submits that he read this email at approximately 8:30am on 31 May 2023 and sent a reply at 10:00am which relevantly states as follows:[52]

“I have read the attached letter. Unfortunately, I have been unable to organise a support person with so little notice. Given that I will be unable to attend this meeting today, I will need to respond to your letter via email.

I will respond to your items in particular the alleged misconduct.

First, I refute both claims you have made concerning my conduct. In addressing item 1, I have been attending all meetings, corresponding with clients, updating my CRM etc. all as per the requirements that had been outlined in the KPI documents. You have also been present in a number of these meetings. I regularly call/meet with clients and these are not always recorded on my diary system.

Item 2, seems to be a misunderstanding. I stated that even if I was to close a deal (get a PO, etc.) it’s highly unlikely I would be paid unless the [redacted] deal was won. This is still the main issue at heart which is the commission dispute and all the elements that make up this claim, namely the targets, etc. all of which has been filed with VCAT. I did not state that I was not going to perform my duties.

I have repeatedly stated that I am happy to continue my duties. I have continued to perform all my duties and have regularly been in communication with internal and external stakeholders.”

Mr Staudt contends that on this date his “head aches and migraines became extremely debilitating” and he was unable to continue performing his duties. Accordingly, Mr Staudt submits that he commenced a period of personal leave the following day, 1 June 2023.[53] Mr Staudt says that the personal leave had been foreshadowed by him with Mr Denis.[54] However, Mr Denis did not recall Mr Staudt raising the possibility of taking personal leave. Rather, Mr Denis said “I do remember talking to you about taking – not necessarily about taking leave but I do remember asking you about your welfare during the time.” Mr Denis further recalls, “And that’s when I said to you that, yes, you need to be very careful about your wellbeing because head injuries is a serious injury.”[55]

Mr Staudt accepts that he had not been on personal leave at any time during the impugned period on the basis that leave “wasn’t necessary” as his “migraines weren’t really getting too bad at that stage, it was just light.”[56]

15 June 2023 disciplinary meeting

Mr Staudt met with Mr Yates on 15 June 2023. Mr Yates gave evidence that words were said to the following effect:[57]

Mr Yates:Why are there no appointments in your diary from 15 May 2023 onwards
Mr Staudt: I have been inconsistent on logging of customer meetings since the 12 May
Mr Yates:I don’t believe it is inconsistency in logging, rather that you have not actually had any meetings

The Applicant did not respond.

Mr Staudt says that he did respond, by stating words to the effect of, “I was still working, I was still meeting clients.” Mr Staudt says that Mr Yates had been in internal meetings with him via Microsoft Teams. Further, Mr Staudt says that he had taken clients out to lunch, demonstrated by receipts that had not yet been reimbursed by the respondent.[58]

Mr Yates said that he also asked Mr Staudt about the management of his pipeline, and an exchange to the following effect ensued:[59]

Mr Yates:You have not been managing your pipeline. All of your opportunities have the same close date of 30 June 2023
Mr Staudt: I cannot talk to my pipeline
Mr Yates:This is an issue, as you should be across your pipeline at all times, as a sales professional

During the hearing, Mr Staudt initially conceded that he may have said that he could not talk to his pipeline.[60] Mr Staudt says that he “had to move his opportunities to 30 June” given the rush to get deals through at the end of the financial year.[61] However, during cross examination, Mr Staudt’s evidence altered. In response to the proposition that he had said that he was unable to speak to his pipeline, Mr Staudt said, “No. I said that I can’t speak to individual items. I said that most items are closing on the 30 June. That’s pretty normal.”[62] Shortly after, Mr Staudt’s evidence altered again during cross examination:[63]

Mr Powles:Okay. Wouldn’t you think that a sales person should be able to talk to every item on their pipe line?
Mr Staudt:Yes. And I told Mr Yates that I was happy to talk to these items. He said that’s not necessary at this time.
Mr Powles:No. Well, [Mr Yates’] evidence is that you said you can’t talk to your pipe line?
Mr Staudt:I said I can’t talk to it as in a whole – like that.

Later again, the following exchange occurred and Mr Staudt’s position was as follows:[64]

Mr Powles:No, well, you were saying earlier you couldn’t talk to your pipeline, but now you - - -?
Mr Staudt:I can. I definitely told Mr Yates that I could, as well.

Mr Powles:     Yes?
Mr Staudt:     Yes
Mr Powles:     No, you didn’t?
Mr Staudt:     I said, ‘Let’s go through item by item.’

Mr Powles:     Mr Yates’ evidence is you couldn’t speak to your pipeline?
Mr Staudt:     Sorry? I wasn’t in front of my computer at that time, I think.
Mr Powles:     Yes?
Mr Staudt:It doesn’t - look, I have never denied that I couldn’t do my work. I have always been able to talk to my pipeline and I’m happy to do it for you right now.

Mr Yates said that he did not believe Mr Staudt was being honest with him during the 15 June 2023 meeting. Mr Yates gave evidence that he formed the view that if Mr Staudt had been working during the fortnight from 15 May 2023, then he could have explained to Mr Yates quite easily what he had done, but Mr Staudt did not do this.[65]

Mr Yates and Mr Staudt met again the following day, 16 June 2023. Mr Staudt submits that he was provided “no details” of this meeting and “no agenda.” Mr Staudt says the following took place:[66]

“Dean Yates claimed that I had abandoned my role and he determined this constitutes serious misconduct and would therefore be terminating my employment effective immediately.
Therefore, the company would not pay out any notice period.
I stated that this was a complete fabrication, and that he was present during multiple sales meetings during this period.
I stated, I had continued to attend internal company meetings and even received ‘a company-wide’ congratulations for the work I had performed.
I stated that there had been client meetings which I had to reschedule due to migraines. My clients were happy with these changes and often I just had these client meeting via a standard telephone call.
I stated that I had been making sales, creating quotes, and generally performing all my roles and duties as expected of me.
I advised Dean Yates that evidence of this exists on Teams, Outlook, the CRM system (Dynamics), and various system logs.
It is worth noting, that Dean Yates had spoken to me directly during the sales meetings (other staff in attendance would typically be [redacted], [redacted], and Chris Dennis). He was clearly aware I had been performing my work duties.
Dean Yates appeared to enjoy the fact he was terminating my employment and was smiling throughout the meeting.
Dean Yates refused to acknowledge my concerns.”

On 16 June 2023, the respondent provided Mr Staudt with a termination letter. The termination letter is dated 15 June 2023 and relevantly provides:[67]

“Re: Termination of Employment

We refer to the recent transpired events:

1. An allegations letter was sent to you on 30 May 2023;
2. We received an email in response to the allegations letter on 31 May 2023;
3. We had a further meeting at 2pm on 15 June 2023;
4. During that meeting:
a. you indicated that you had nothing further to add to your email of 31 May 2023;
b. I noted that I had reviewed your diary, and that you had not any in-person meetings after 12 May 2023, and that prior to this date you had a very busy schedule of in-person meetings. I also noted that in-person meetings was a key requirement of your role. Your explanation was that you had still been having meetings, but simply logging them in your diary;
c. I also noted that in our meeting of 17 January 2023, you had agreed to have all of your account plans updated by 31 January 2023, on reviewing these plans, I noted that 3 plans were updated on 26 March 2023, and 5 plans had not been updated at all since our meeting on 17 January 2023;
d. In reference to your pipeline, I raised a number of issues, including no start of [sic] finish dates, 10 of them not being updated since 22 May 2023, 35 of the opportunities having a close date of 30 June 2023. You said that you were ‘unable to speak to your pipeline’.

After careful consideration of your responses, both via email on 31 May 2023, and verbally in our meeting on 15 June 2023, Best International Group Pty Ltd (Best) does not accept your explanations, and has determined that your employment is to be terminated for serious misconduct, effective immediately. The reason for this decision is because Best is satisfied that:

1. you have effectively ceased work, from some time after 12 May 2023;
2. your abandonment of your obligations demonstrates an intention to no longer be bound by the term of your Contract of Employment, constituting repudiation of your Contract of Employment;
3.your conduct breaches Regulation 1.07 of the Fair Work Regulations 2009 (Cth); and

4. this breach has destroyed Best’s trust and confidence in you as an employee.
…”

Mr Staudt submits that he advised Mr Yates during the 15 June 2023 meeting that he had been continuing to do work and that Mr Yates was “present during those meetings as well.”[68] It is not in contest in these proceedings that the respondent accepts that Mr Staudt attended internal meetings during the impugned period.[69]

Following the cessation of employment, Mr Staudt submitted a workers compensation claim in relation to the head injury he contends was suffered at work on 26 April 2023. At the time of the hearing, it had been determined that the injury did not arise out of or in the course of Mr Staudt’s employment.[70]

Factual findings – the data before the Commission

The documentary evidence before the Commission comprises of Mr Staudt’s work calendar, Mr Staudt’s email activity to and from his work email account, the sales account plans created by Mr Staudt, and reports from Microsoft Dynamics which demonstrate Mr Staudt’s activity in the CRM system.

The respondent alleges that between 17 May and 30 May 2023 , Mr Staudt substantially ceased performing many of the duties required of him in his employment.

In relation to Mr Staudt’s calendar entries and email activity, I have focused my analysis on the data that is relevant to the period 17 May to 30 May 2023, and other periods to a more limited extent to provide a point of comparison as to a non-impugned period.

Calendar entries

Mr Staudt’s calendar records the following meetings had been arranged to take place in the week 15 May to 21 May 2023:[71]

MONDAY 15 MAY Internal sales meeting

Internal 1:1 meeting

Thursday 18 May Customer meeting (which coincided with a personal medical appointment)

Internal monthly update

Mr Staudt’s calendar records the following meetings had been arranged to take place in the week 22 May to 28 May 2023:[72]

Monday 22 May Internal sales meeting

Internal 1:1 meeting

Tuesday 23 May Customer meeting

Wednesday 24 May Internal 1:1 meeting

Friday 26 May Internal weekly update

Mr Staudt’s calendar records the following meetings had been arranged to take place in the week 29 May to 4 June 2023:[73]

Monday 29 May Internal sales meeting

Internal 1:1 meeting

Thursday 1 June Personal leave

Friday 2 June Personal leave

For comparison purposes, Mr Staudt’s calendar records the following meetings had been arranged to take place in the week 8 May to 14 May 2023 (being a non-impugned period immediately prior to Mr Staudt raising a formal grievance in relation to his commission):[74]

Monday 8 May Internal sales meeting

Internal 1:1 meeting

Internal meeting

Tuesday 9 May Customer meeting

Customer meeting

Customer meeting

Customer meeting

Wednesday 10 May Internal meeting

Thursday 11 May Customer meeting

Customer meeting

Friday 12 May Internal update meeting

Customer meeting

Customer meeting

Customer meeting (which coincides with a personal commitment)

The data set out at [62] above demonstrates that in the week prior to Mr Staudt raising a formal grievance in relation to his commission plan, he had eight customer meetings in his calendar (assuming he did not attend the meeting which coincided with his personal commitment on 12 May 2023), in addition to internal meetings. The customer meetings were scheduled variously over five hours, three hours, two hours and between 30 minutes to an hour. This is to be compared to Mr Staudt’s calendar in the 10 business days between 17 May and 30 May 2023 in which just one customer meeting is recorded in Mr Staudt’s calendar for one hour.

The evidence is sufficient to demonstrate and I find that in the impugned period, Mr Staudt significantly reduced the number of customer meetings he attended from approximately eight in one week to one in total over the 10 business days in the period 17 May to 30 May 2023.

Email activity

Mr Staudt’s email “inbox” folder[75] as well as the “sent items” folder[76] has been exported to a comma separated values file, which sets out who the email is from, the subject line, and the date received.

The emails sent and received by Mr Staudt during the impugned period are set out at [75]-[137] of this decision. Where my analysis addresses emails prepared and sent by Mr Staudt, I accept Mr Yates’ evidence as to the estimate of time attributed to the preparation of such emails by Mr Staudt, given Mr Yates’ role and experience in sales management, and noting the time estimate it is not contested by Mr Staudt.[77] In addition to Mr Yates’ estimate of the time spent preparing emails sent by Mr Staudt on these dates, I have also factored in time taken by Mr Staudt to read and consider emails that he received during this period.

Sales account plans

Mr Staudt commenced six customer account plans during his employment.

Before the Commission is a screenshot of Mr Staudt’s Microsoft OneDrive folder which identifies the dates that these plans were last modified.[78] The data demonstrates that none of these plans were updated after February 2023. They were last updated on 11 October 2022, 16 January 2023 and 6 February 2023 respectively. The respondent submits that this demonstrates incomplete work as the updating of such plans is critical to Mr Staudt’s role.

Mr Staudt’s evidence is that he “definitely complied and updated all the records in the system”[79] following Mr Yates’ direction to him to do so in January 2023 and that he otherwise updated his sales plans “semi-regularly.” Mr Staudt submits that there were multiple versions of the sales account plans, including on the group drive and on Mr Staudt’s desktop.[80]

With the exception of the plan not been updated since 11 October 2022, I am satisfied that Mr Staudt updated certain sales account plans by 6 February 2023. However, this data is of limited assistance in determining whether Mr Staudt substantially ceased performing his professional duties in the impugned period. This is because the evidence establishes that Mr Staudt did not routinely perform this task either during, or outside, the impugned period, with such plans not being updated at any stage between 6 February 2023 and Mr Staudt’s dismissal on 16 June 2023 on the data before the Commission.

CRM data

The respondent submits that on 18 August 2023, Mr Yates attempted to extract three reports from Microsoft Dynamics to demonstrate Mr Staudt’s activity in the system. Mr Yates gave evidence that he was unable to generate an “Accounts Advanced Find View” report, which would identify how many new accounts were opened by Mr Staudt. Mr Yates says that this report could not be generated because there were no new accounts opened by Mr Staudt during his employment. Mr Staudt accepts this to be correct but says that this is because the Dynamics system was only new to the respondent’s business.[81]

Mr Yates says that he was able to generate an “Opportunity Advanced Find View” report, which identifies how many new opportunities were opened by Mr Staudt. This report sets out the 49 opportunities that were created by Mr Staudt in the CRM system.[82] This data identifies that a sale was “won” by Mr Staudt during the impugned period, on 25 May 2023.[83]

Further, Mr Yates generated a “Contacts Advanced Find View” report, which identifies how many new contacts were opened by Mr Staudt. This report demonstrates that Mr Staudt created six contacts in the CRM, from 30 January to 5 May 2023.[84] It is not in contest that none of these contacts were added after 15 May 2023.[85]

Conclusions available from the data

The respondent contends that from 17 May 2023 until the allegations were provided to Mr Staudt in writing on 30 May 2023, Mr Staudt performed only the barest of minimum tasks to create a “façade” that he was still working. I have considered the evidence before the Commission in relation to each working day in the impugned period.

Wednesday 17 May 2023

On 17 May 2023, Mr Staudt sent nine emails in total.[86] Of these emails:

(a)five emails were sent by Mr Staudt to his own personal email address. These emails contained the respondent’s workplace policies and procedures, Mr Staudt’s employment contract, payslips, and emails between Mr Staudt and Mr Yates regarding the commission structure;
(b)two emails were sent to one customer. I accept Mr Yates’ evidence that these emails were “moderately extensive” and would have taken approximately one hour to prepare in total; and
(c)two emails were brief internal emails. I accept Mr Yates evidence that these emails would have taken approximately 20 minutes to prepare in total.

There is no evidence that demonstrates that Mr Staudt updated any of his sales plans on this day, however this is consistent with the position on any date after 6 February 2023.

Mr Staudt’s work calendar demonstrates that he did not attend any meetings.

Mr Staudt opened one opportunity in the CRM in relation to a customer enquiry. I accept Mr Yates’ evidence that this task would have taken Mr Staudt approximately 15 minutes.

Mr Staudt did not contest Mr Yates’ evidence in relation to his work output on 17 May 2023.[87]

In total, from this data, I consider that Mr Staudt performed approximately 1 hour and 40 minutes work on Wednesday 17 May 2023.

Thursday 18 May 2023

On 18 May 2023, Mr Staudt sent four emails between 3:52pm and 3:59pm.[88] Of these emails:

(a)three emails were sent to a customer; and
(b)one email was sent internally seeking information about that enquiry.

These emails were each very brief, and were reacting to an enquiry from this customer. I accept Mr Yates’ estimate that these emails would not have taken more than 10 minutes in total.

Mr Staudt later sent two additional emails to his personal email address, one of which contains the contact details of several of the respondent’s customers.[89]

There is no evidence that demonstrates that Mr Staudt updated any of his sales plans on this day, however this is consistent with the position on any date after 6 February 2023.

There was no activity by Mr Staudt in the CRM system on this day.

Mr Staudt’s calendar demonstrates that Mr Staudt attended the monthly all staff update for one hour. I have not taken into account the customer meeting at 11:00am on this day as it coincides with a personal medical appointment recorded in Mr Staudt’s calendar covering the majority of the same period.

Mr Staudt did not contest Mr Yates’ evidence in relation to his work output on 18 May 2023.[90]

In total, from this data, I consider that Mr Staudt performed approximately 1 hour and 20 minutes work on Thursday 18 May 2023.

Friday 19 May 2023

On 19 May 2023, Mr Staudt sent nine emails in total.[91] Of these emails:

(a)two emails were sent a customer and one internal email concerning this customer. I accept Mr Yates’ estimate that these emails would have taken 45 minutes in total to prepare;
(b)one email was responding to an email Mr Staudt had been mistakenly copied to and two emails responding to a customer enquiry. I accept Mr Yates’ estimate that these emails would have taken 5 minutes in total to prepare;
(c)two emails to a customer and one email to Mr Denis concerning a customer. I accept Mr Yates’ estimate that this email would have taken less than 15 minutes; and
(d)one email to a customer containing a quote. I accept Mr Yates’ estimate that this email would have taken approximately 30 minutes to complete.

There is no evidence that demonstrates that Mr Staudt updated any of his sales plans on this day, however this is consistent with the position on any date after 6 February 2023.

Mr Staudt opened one opportunity in CRM in relation to a customer enquiry. I accept Mr Yates’ estimate that this would have taken approximately 15 minutes.

Mr Staudt’s calendar demonstrates that Mr Staudt did not attend any meetings.

Mr Staudt did not contest Mr Yates’ evidence in relation to his work output on 19 May 2023.[92]

In total, from this data, I consider that Mr Staudt performed approximately 1 hour and 55 minutes work on Friday 19 May 2023.

Monday 22 May 2023

On 22 May 2023, Mr Staudt sent the following emails:[93]

(a)four emails (internal and external) concerned a customer opportunity. One internal email was reasonably detailed and the remaining three emails were very brief. I accept Mr Yates’ evidence that these emails would have taken approximately 45 minutes to complete;
(b)one email was to Mr Denis regarding a customer, which was then forwarded to another internal member of the respondent’s staff. I accept Mr Yates’ evidence that these emails would have taken approximately 5 minutes to complete;
(c)three internal emails were sent to the finance department of the respondent’s business and concerned invoices. I accept Mr Yates’ evidence that these emails would have taken approximately 15 minutes to complete.
(d)one email was sent by Mr Staudt to his personal email address containing sales numbers for discussion the following week.

There is no evidence that demonstrates that Mr Staudt updated any of his sales plans on this day, however this is consistent with the position on any date after 6 February 2023.

Mr Staudt opened one opportunity in CRM in relation to a customer. I accept Mr Yates’ evidence that this would have taken approximately 15 minutes.

Mr Staudt attended a one-hour weekly sales meeting and a one-hour-long 1:1 meeting with Mr Denis.

Mr Staudt did not contest Mr Yates’ evidence in relation to his work output on 22 May 2023.[94]

In total, from this data, I consider that Mr Staudt performed approximately 3 hours and 30 minutes work on Monday 22 May 2023.

Tuesday 23 May 2023

On 23 May 2023, Mr Staudt sent two emails in total.[95] Of these emails:

(a)one email was to a customer responding to an introduction and was very brief. I accept Mr Yates’ evidence that this email would have taken approximately five minutes to complete; and
(b)one email was acceptance of a calendar invitation for a meeting with Mr Yates the following day.

There is no evidence that demonstrates that Mr Staudt updated any of his sales plans on this day, however this is consistent with the position on any date after 6 February 2023.

There were no opportunities opened or closed by Mr Staudt in the CRM system on this day.

Mr Staudt attended a one-hour customer meeting on this day.

Mr Staudt did not contest Mr Yates’ evidence in relation to his work output on 23 May 2023.[96]

In total, from this data, I consider that Mr Staudt performed approximately 1 hour and 10 minutes work on Tuesday 23 May 2023.

Wednesday 24 May 2023

On 24 May 2023, Mr Staudt sent eight emails in total.[97] Of these emails:

(a)six emails were brief and one email was moderately extensive which were sent between 8:43am and 10:11am. I accept Mr Yates’ evidence that these emails would have taken approximately 1 hour and 30 minutes to complete; and
(b)one email was sent at 1:44pm. I accept Mr Yates’ evidence that this email would have taken approximately 20 minutes to complete.

There is no evidence that demonstrates that Mr Staudt updated any of his sales plans on this day, however this is consistent with the position on any date after 6 February 2023.

There were no opportunities opened or closed by Mr Staudt in the CRM system on this day.

Mr Staudt attended a 30-minute meeting with Mr Yates on this day.

Mr Staudt did not contest Mr Yates’ evidence in relation to his work output on 24 May 2023.[98]

In total, from this data, I consider that Mr Staudt performed approximately 2 hours and 25 minutes work on Wednesday 24 May 2023.

Thursday 25 May 2023

On 25 May 2023, Mr Staudt sent six emails in total.[99] Of these emails:

(a)four emails were extremely brief. I accept Mr Yates’ evidence that these emails would have taken approximately 10 minutes to prepare in total; and
(b)two email were sent to a customer. I accept Mr Yates’ evidence that these emails would have taken approximately 30 minutes to prepare.

There is no evidence that demonstrates that Mr Staudt updated any of his sales plans on this day, however this is consistent with the position on any date after 6 February 2023.

There were no opportunities opened or closed by Mr Staudt in the CRM system on this day.

There were no calendar meetings on this day.

Mr Staudt did not contest Mr Yates’ evidence in relation to his work output on 25 May 2023.[100]

The data identifies that a sale was “won” by Mr Staudt on this day.[101]

In total, from this data, I consider that Mr Staudt performed approximately 1 hour and 45 minutes work on Thursday 25 May 2023.

Friday 26 May 2023

On 26 May 2023, Mr Staudt sent six emails in total.[102] Each of these emails were extremely brief and provide a reaction to direct enquiries. I accept Mr Yates’ evidence that these emails would have taken approximately 5 minutes each or 30 minutes in total.

There is no evidence that demonstrates that Mr Staudt updated any of his sales plans on this day, however this is consistent with the position on any date after 6 February 2023.

There were no opportunities opened or closed by Mr Staudt in the CRM system on this day.

Mr Staudt attended a 30-minute all staff meeting on this day.

Mr Staudt did not contest Mr Yates’ evidence in relation to his work output on 26 May 2023.[103]

In total, from this data, I consider that Mr Staudt performed approximately 1 hour and 5 minutes of work on Friday 26 May 2023.

Monday 29 May 2023

On 29 May 2023, Mr Staudt sent two emails in total.[104] Each of these emails were to Mr Denis. I accept Mr Yates’ evidence that these emails would have taken approximately 5 minutes to prepare.

There is no evidence that demonstrates that Mr Staudt updated any of his sales plans on this day, however this is consistent with the position on any date after 6 February 2023.

There were no opportunities opened or closed by Mr Staudt in the CRM system on this day.

Mr Staudt attended a weekly sales meeting and his one-on-one meeting with Mr Denis which amounts to two hours of meetings on this day.

Mr Staudt did not contest Mr Yates’ evidence in relation to his work output on 29 May 2023.[105]

In total, from this data, I consider that Mr Staudt performed approximately 2 hours and 10 minutes work on Monday 29 May 2023.

Tuesday 30 May 2023

On 30 May 2023, Mr Staudt sent seven emails in total between 2:05pm and 4:00pm.[106] Three of these emails were sent to his personal email address. The remaining four emails were very brief. I accept Mr Yates’ evidence that these emails would have taken approximately 15 minutes in total.

There is no evidence that demonstrates that Mr Staudt updated any of his sales plans on this day, however this is consistent with the position on any date after 6 February 2023.

There were no opportunities opened or closed by Mr Staudt in the CRM system on this day.

There were no calendar entries on this day.

Mr Staudt did not contest Mr Yates’ evidence in relation to his work output on 30 May 2023.[107]

In total, from this data, I consider that Mr Staudt performed approximately 20 minutes work on Tuesday 30 May 2023.

Conclusion

Having regard to the above matters, I find that during the 10 business days from 17 May until 30 May 2023, Mr Staudt performed approximately 17 hours and 20 minutes of work relating to internal and external meetings, internal and external emails, updating account plans and in the CRM system. This is an average of just 1.7 hours of work per day (or approximately 8.5 hours across five business days) during the impugned period.

Impact of telephone calls

Mr Staudt says that the respondent’s data does not identify calls that he had with customers during the impugned period, by Microsoft Teams. Mr Staudt says that there is more to his role than sending emails and that an analysis limited to an examination of his emails would not necessarily be appropriate to demonstrate the work he completed.[108]

Notwithstanding Mr Staudt’s contention otherwise,[109] Mr Staudt did not seek via the Form F52 Application for an order for production of documents, records or information the content of his Microsoft Teams call records. Regardless, Mr Staudt’s direct evidence about the calls he had during the impugned period is limited to the following:[110]

“So I had calls with [redacted], [redacted]. These were either, you know, standard operation site, so getting clients out - sorry, getting technicians out to site, booking technicians in, as well as coffee meetings, and then also - sorry, this is just Teams. I would have had probably at least one or maybe even two multi party calls during that period with [redacted] discussing various bids and tenders.”

When asked if emails would typically be sent addressing the outcomes of such calls, Mr Staudt said:[111]

“Not without the CRM data. The CRM data is the confirmation of those sales and when clients have gone out to site. There’s two aspects of the CRM for the respondent. There’s highlighting the sales pipeline. But there’s also the operation site of the business captured within their CRM, and that CRM captured when client - when my clients had the technicians, when technicians have gone to site; any bills and charges made to partners.”

Mr Staudt contends that the data before the Commission does not capture the “CRM which sends out emails and creates new quotes and also does bookings,” it does not capture “Teams meetings, Teams calls, Teams chat messages,” it does not capture “face to face meetings details, coffee meetings” or “lunch with my client.”[112]

Mr Staudt’s contentions are permeated with a complete lack of specificity which does not enable the Commission to give his contentions any material consideration. There are no dates attached to the calls, the lunch, or the coffee meetings, and no identification of the representatives with whom he spoke other than to refer to two companies by name and a vague reference to “getting technicians out to site, booking technicians in” and “probably” one or two multi-party calls discussing unidentified bids and tenders. In these circumstances, Mr Staudt’s contentions lack credibility.

In the absence of submissions from Mr Staudt otherwise, I would attribute five minutes to each of the two customer calls Mr Staudt allegedly had in relation to booking technicians in, and 20 minutes to various other alleged telephone calls, which would have the effect of increasing Mr Staudt’s daily average work output from approximately 1.7 hours per day during the impugned period to approximately 1.8 hours per day during the impugned period. I decline to attribute any time to completely unparticularised chat messages, coffee meetings or lunches.

Was the dismissal harsh, unjust or unreasonable?

The matters that must be taken into account in assessing whether the dismissal was harsh, unjust or unreasonable are set out in s 387(a) to (h) of the Act. Before turning to consider these matters, I make some initial observations about the evidence given by the respective witnesses.

I found Mr Staudt’s evidence to be unreliable. For instance, Mr Staudt’s evidence changed at various points in relation to important issues during the proceedings, demonstrated by the matters summarised at [49]-[50] of this decision. Further, as the findings at [188]-[196] of this decision demonstrate, the evasive nature of Mr Staudt’s evidence undermines his credibility. Accordingly, I consider that Mr Staudt’s evidence ought to be approached with a significant degree of caution. By contrast, I found that each of the respondent’s witnesses gave straight forward answers to the questions asked of them and their evidence did not change. In these circumstances, where there are factual contests between Mr Staudt and the respondent’s witnesses, I generally prefer the evidence of the respondent’s witnesses.

Section 387(a) - Was there a valid reason for the dismissal related to capacity or conduct (including its effect on the safety and welfare of other employees?)

The principles that are relevant to the consideration of whether there was a valid reason for the dismissal related to an employee’s capacity or conduct are well established. A valid reason is one that is “sound, defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced.”[113]

The Commission does not stand in the shoes of the employer and determine what the Commission would do if it were in the position of the employer.[114] The question the Commission must address is whether there is a valid reason, in the sense both that it was a good reason and a substantiated reason. A valid reason need not necessarily be the one relied upon by the employer. It can be any reason underpinned by the evidence before the Commission.[115]

Where several reasons for termination are invoked, it is not necessarily the case that all must be substantiated.[116] Nor is it necessary, for the purpose of establishing a valid reason, to demonstrate misconduct sufficiently serious to justify summary dismissal.[117] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[118]

The respondent contends that Mr Staudt’s employment was dismissed by reason of his conduct. Where allegations of misconduct are made, the standard of proof in relation to whether the alleged conduct occurred is the balance of probabilities. However, as the High Court noted in Briginshaw v Briginshaw,[119] the nature of the relevant issue necessarily affects the “process by which reasonable satisfaction is attained.”[120] Such satisfaction “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”[121] or “circumstances pointing with a wavering finger to an affirmative conclusion.”[122] The application of the Briginshaw standard means that the Commission should not lightly make a finding that an employee engaged in the misconduct alleged.[123]

Further an employer is entitled at the hearing of an application for an unfair dismissal remedy to rely upon whatever reason(s) the employer wishes to rely upon at that time, albeit that in relation to any reason not relied upon at the time of dismissal the employer will have to contend with the consequences of not giving the employee an opportunity to respond to such reason within the meaning of s 387(b) and (c) of the Act.[124]

The respondent submits that there are two valid reasons for Mr Staudt’s dismissal, each relating to his conduct. These reasons are that:

(1)Mr Staudt substantially ceased performing his employment duties between 17 May and 30 May 2023.
(2) After his dismissal, the respondent became aware that Mr Staudt sent confidential information to his personal email address while he was still employed.

The first reason for dismissal

The respondent alleges that Mr Staudt substantially ceased performing his employment duties between 17 May and 30 May 2023. Mr Staudt’s attendance at internal meetings during the impugned period is not in contest.

Mr Staudt’s role included, inter alia, managing the relationship between the respondent and the accounts to which he was assigned. I accept Mr Denis’ evidence that meeting with relevant personnel connected to these accounts is an essential component of Mr Staudt’s role. Mr Staudt similarly explained that the “main focus” of his role was to “generate sales” and “that meant meeting with my clients.”[125]

As found at [64] of this decision, the data establishes that Mr Staudt significantly reduced the number of customer meetings he attended from approximately eight in the week between 8 May to 14 May 2023, to just one in total over the 10 business days in the period 17 May to 30 May 2023. This reduction is by any measure, significant.

Mr Staudt submits the reduction in customer meetings is attributable to his head injury. Mr Staudt says that the respondent had been advised of his head injury and his need to rearrange his calendar to accommodate therapy. Mr Staudt’s position is that he made some changes to the calendar by removing “recurring meetings” from his calendar, but contends that he continued to meet with his clients as required during the impugned period.[126] However, there is no evidence that supports Mr Staudt’s contention that he had been rearranging his calendar to account for migraines in the impugned period between 17 May and 30 May 2023 (see [52] above). On the contrary, Mr Staudt’s own evidence (see [45] above) is that during the impugned period, his migraines were not “too bad at that stage.” Accordingly, I reject Mr Staudt’s contention that his calendar had been rearranged due to migraines.

Mr Staudt’s contention that he raised with Mr Denis on 15 May 2023 his proposal to take a period of personal leave and he “then prepared” for this leave is not borne out on the evidence. Mr Denis does not accept that Mr Staudt discussed with him the prospect of taking a future period of personal leave. Regardless, Mr Staudt has not drawn a logical connection explaining how his preparation for taking a period of planned personal leave led to a significant reduction in customer meetings being convened.

Notwithstanding the reduction in customer meetings scheduled in his calendar, Mr Staudt contends that he continued to attend customer meetings during the impugned period. Mr Denis says that since the COVID-19 pandemic, many customer meetings have been conducted remotely via video, and scheduled through calendars. This evidence was not challenged by Mr Staudt. For this reason, I consider that “drop in” meetings with customers are less likely than they were prior to the pandemic. Regardless, Mr Staudt has not identified with any specificity the times and dates that he contends he met with customers during the impugned period, the format for such a meeting (in person or remotely via video), with whom he met, or any other details relevant to such meetings. Nor did Mr Staudt identify the existence of these alleged meetings in his written response to the letter of allegations on 31 May 2023, or in his 15 June 2023 meeting with Mr Yates. In the absence of any corroborating evidence, I do not accept Mr Staudt’s position that he met with customers during the impugned period without such meetings being recorded in his work calendar.

Mr Staudt further contends that (a) he had family commitments and had been informed that the respondent would support him, and (b) that there were a number of technical issues with the respondent’s IT system due to upgrades and changes, which were widely known and discussed.[127] In respect of (a), there is no evidence before the Commission in relation to Mr Staudt’s family commitments and the bearing these commitments may have had upon the reduced number of customer meetings recorded in Mr Staudt’s calendar during the impugned period. I do not accept this provides any cogent support for why Mr Staudt’s customer meetings significantly reduced during this time. As to (b), Mr Staudt’s submissions and evidence do not draw a connection between the alleged shortcomings of the respondent’s IT systems and the reduction in customer meetings attended by Mr Staudt. In the absence of any logical connection, I do not place any weight on this matter as providing an explanation for the significant reduction in such meetings in Mr Staudt’s calendar for the impugned period.

I have not attributed any weight to the respondent’s contention that Mr Staudt’s single meeting in 10 business days falls well short of the five customer facing meetings to be held each week pursuant to Mr Staudt’s KPIs. The KPIs were issued to Mr Staudt on 29 May 2023. I do not consider it appropriate to, and I do not, apply the KPIs to weeks that preceded their 29 May 2023 introduction.

I have concluded at [144] that the data establishes that Mr Staudt performed approximately 1.8 hours of work each day during the impugned period. Mr Staudt contends that the data produced to the Commission is incomplete, but does not otherwise challenge the conclusions drawn by the respondent in relation to it. It is not in dispute that at all times leading up to the termination of his employment, Mr Staudt had access to all of the respondent’s IT systems, including his email account, access to the respondent’s CRM, and access to his own outlook calendar.[128] Despite this, on both 31 May 2023 and 15 June 2023 when Mr Staudt was invited to respond to the letter of allegations, Mr Staudt chose not to provide any evidence at all of the work that he had performed during the period of concern. During the hearing, Mr Staudt continued to rely upon his 31 May 2023 written response despite its unparticularised content.

As earlier noted, Mr Staudt’s contention that he conducted telephone calls with customers or attended meetings during the impugned period is permeated with a complete lack of specificity. I address the impact of telephone calls Mr Staudt alleges to have made earlier in this decision. Even taking Mr Staudt’s limited contentions at their highest as I have done at [143] above, the additional time that can reasonably be attributed to Mr Staudt’s work output during the impugned period is limited. There are no follow up emails to or from any customer which refer to these alleged telephone discussions, set out any follow up items or confirm next steps. I therefore infer that if those telephone calls occurred, they were brief. I have accounted for such time in my overall estimate of Mr Staudt’s work output during the impugned period at [144] of this decision.

Mr Staudt’s work output during the impugned period is to be understood in the context of other contemporaneous events. It is not in contest, and I find that Mr Staudt considered that his concerns with respect to his commission plan had not been adequately addressed by the respondent. The focus of Mr Staudt’s concern was on his capacity to achieve his on-target earnings and whether he had been misled about this matter. This led to Mr Staudt feeling sufficiently aggrieved to have commenced legal proceedings against the respondent in VCAT alleging that his contract of employment was unfair. Mr Staudt also lodged an internal grievance with the respondent.

Mr Staudt’s actions in this respect immediately followed Mr Staudt’s 1:1 meeting with Mr Denis on 15 May 2023 in which he was advised that the respondent regarded his targets to be reasonable.

It is unnecessary, in the context of Mr Staudt’s application for an unfair dismissal remedy, to determine Mr Staudt’s contention that his contract was unfair. However, I observe as a matter of context that the respondent made Mr Staudt’s $1 million target sufficiently clear, and I do not consider any ambiguity to arise in relation to that matter.

Against this context, and consistent with my views at [146] above, I accept Mr Denis’ evidence that Mr Staudt said to him during their 29 May 2023 meeting words to the effect of, “What’s the point in doing any of that? It’s not like I am going to get any commission out of it. That’s why I’m taking you to court.” I found Mr Denis’s evidence to be direct and unwavering on this point and his recollection was clear.

I am satisfied that the material in evidence is sufficient to discharge the onus of proof, upon the balance of probabilities, which rests upon the respondent.[129] I find that consistent with Mr Staudt’s above statement, Mr Staudt’s limited work output and reduction in customer meetings during the impugned period was a considered and deliberate decision made by Mr Staudt on the basis of his view that his contract was unfair, that it ought to be challenged in VCAT, that he would not be paid his commissions, and accordingly, there was no benefit to be derived by him in the performance of certain employment duties. I consider such conduct to be contrary to the fundamental duties Mr Staudt held pursuant to his contact of employment which included a requirement to perform all of his duties in a professional and efficient matter, across 30 hours per week, and the warranty given to Mr Staudt that he would perform such work with all reasonable level of care, skill and diligence.

I am satisfied that this gives rise to a valid reason for Mr Staudt’s dismissal within the meaning of s 387(a) of the Act. I find that this matter establishes a sound, defensible and well-founded reason for Mr Staudt’s dismissal.

In reaching this conclusion, I reject Mr Staudt’s contention that the true reason for his dismissal concerned his head injury. Beyond the matters identified in this decision, Mr Staudt’s evidence is that the injury was not the subject of further discussion between Mr Staudt and the respondent.[130] The workers compensation claim was not filed until after Mr Staudt was dismissed. I note the claim was rejected following a circumstance investigation report dated 23 July 2023.[131] I also do not accept that the true reason for Mr Staudt’s dismissal concerned the commission dispute. There is no cogent support for this contention advanced by Mr Staudt, and it is at odds with the weight of the evidence before the Commission.

The second reason for dismissal

The respondent contends that during his employment, Mr Staudt sent to his personal email address an email containing the respondent’s proprietary information, comprising of 13 different email addresses of its clients.[132] The respondent did not discover this email until after Mr Staudt’s employment ended. There is no evidence before the Commission that this information was used or disclosed to any person.

Further, the respondent’s position is that Mr Staudt’s conduct in sending proprietary information to himself is in breach of his ongoing contractual obligations to the respondent and constitutes a further valid reason for Mr Staudt’s dismissal in circumstances where:

Mr Staudt continued to run his own IT consultancy business while working for the respondent on a part time basis;
Mr Staudt made direct threats following his dismissal that he would contact and solicit clients of the respondent;
Mr Staudt did in fact solicit clients of the respondent following his dismissal; and
Mr Staudt openly disputed that he owed any obligations of confidence to the respondent.

I accept that following his dismissal, Mr Staudt openly disputed that he owed any obligations of confidence to the respondent, or that he was bound by any “non-competes.” I am also satisfied that Mr Staudt threatened to contact and solicit clients of the respondent.[133] This caused the respondent to feel sufficiently concerned that it sent correspondence, via its representatives, to Mr Staudt reminding him of his post-employment contractual obligations.[134]

While Mr Staudt contacted certain customers of the respondent to inform them of his employment cessation and to discuss “possible opportunities” for him,[135] there is no evidence that Mr Staudt actively solicited the respondent’s clients.

I am not persuaded on the evidence that Mr Staudt’s conduct discovered after his dismissal, or his post-dismissal conduct, provide a valid reason for his dismissal.

Sections 387(b) and 387(c) – Was Staudt notified of the valid reason and given an opportunity to respond?

Section 387(b) requires the Commission to have regard to whether an employee was notified of that reason. Contextually, the reference to “that reason” is the valid reason(s) found to exist under s 387(a) of the Act.[136] Notification of a valid reason for termination must be given to an employee before the decision is made to terminate their employment,[137] and in explicit[138] and plain and clear terms.[139]

Section 387(c) is concerned with whether an employee was, in substance, afforded an opportunity to respond to the reasons for the dismissal.[140] An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[141] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[142]

The 30 May 2023 letter of allegations states that:

1. You have ceased to fulfil your professional duties and have not scheduled any customer appointments in your diary since 12 May 2023; and
2. You had told another employee of Best that you consider it meaningless to carry out your professional duties as you are initiating a proceeding against Best in the Victorian Civil and Administrative Tribunal.

It is not in contest that Mr Staudt attended internal meetings during the impugned period.

I am satisfied, and I find that the valid reason for Mr Staudt’s dismissal was sufficiently notified to Mr Staudt in the letter of allegations. The letter did not specify that Mr Staudt had ceased to fulfil all of his professional duties. Further, the letter drew specific focus to Mr Staudt not having scheduled any customer appointments in his diary since 12 May 2023, which informs the valid reason for Mr Staudt’s dismissal. The fact that Mr Staudt was notified of, and invited to respond to this concern over a broader timeframe from 12 May 2023 does not mean that Mr Staudt’s opportunity to address the narrower timeframe (from 17 May 2023) was curtailed, and nor is this contended.

Accordingly, I am satisfied, and I find that Mr Staudt was notified of, and given an opportunity to respond to the valid reason for his dismissal. Mr Staudt elected to provide a written response to the letter of allegations by email on 31 May 2023. Mr Staudt did so with the benefit of access to all of the data available to demonstrate his contention that he had continued to fulfil his professional duties during the period. Thereafter, following Mr Staudt’s return to work following personal leave, Mr Staudt accepts that he provided a further response to Mr Yates during the 15 June 2023 meeting,[143] despite feeling that he was “blindsided” by the meeting.[144]

The notification, and opportunities to respond, were given before the dismissal decision was communicated to Mr Staudt on 16 June 2023.

Section 387(d) – Was there any unreasonable refusal by the respondent to allow Staudt to have a support person present to assist at any discussions related to the dismissal?

There was no unreasonable refusal to allow Mr Staudt to have a support person to assist in discussions about the dismissal. There was no request of this kind made by Mr Staudt that was denied by the respondent.

Section 387(e) - If the dismissal related to unsatisfactory performance, was Staudt warned about that unsatisfactory performance before the dismissal?

Mr Staudt was not dismissed for unsatisfactory performance. Rather, he was dismissed for misconduct.

Section 387(f) and s 387(g) – The degree to which the size of the respondent’s enterprise, and 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?

I do not consider there to be any material issues of procedure in effecting the dismissal. Nevertheless, where an employer is of substantial size and has dedicated human resources personnel and access to legal advice, there will likely be no reason for it not to follow fair procedures.[145]

The respondent employed approximately 118 employees at the time of Mr Staudt’s dismissal,[146] although there is no evidence that the respondent has a dedicated human resources department. Neither party submitted that the size of the respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the respondent’s enterprise had no such impact.

Accordingly, there are no matters to take into account when considering the procedures followed in effecting the dismissal for the purposes of s 387(f)-(g).

Section 387(h) - Any other matters that the Commission considers relevant

Section 387(h) provides the Commission with broad scope to consider any other relevant matters. The Commission should consider all the circumstances and weigh the gravity of Mr Staudt’s conduct against any matters that might support his contention that the dismissal was harsh, unjust or unreasonable.[147]

Return of property

It is not in dispute that Mr Staudt had an obligation under his contract of employment to return the respondent’s property following his dismissal.[148]

On 24 July 2023, an employee of the respondent advised Mr Staudt that two monitors, one docking station and one laptop belonging to the respondent would be collected from his home address on 25 July 2023.[149] Mr Staudt responded to this email, stating relevantly as follows:[150]

“Concerning your claims that I have equipment belonging to Best is disputed. Should you have the serial numbers/details of any equipment you claim to own, I will be able to review your claims at that point.”

At least eight emails passed between Mr Staudt that the respondent regarding this issue between 24 July and 26 July 2023.[151] At no stage did Mr Staudt advise the respondent that the property had been returned by him in the week following his 16 June 2023 dismissal.

During a mention before the Commission on 11 August 2023, Mr Staudt did not agree to return the respondent’s property on the basis that he was awaiting information from the respondent that would adequately identify the property it sought. This is despite the respondent maintaining that Mr Staudt had been provided with the serial numbers identifying its property.[152] Mr Staudt later revised his position, stating that the laptop had been returned via Australia Post, but that tracking was not obtained.

In correspondence to the Commission on 13 August 2023, Mr Staudt stated that “the following week” after his dismissal, he “decided I would post these items back. I sent these items to their address in Sydney at a substantial cost, I think it was approx. $50-$60…”[153]

During the hearing, Mr Staudt gave evidence that he arranged for the respondent’s property to be returned to the respondent the week after the cessation of his employment.[154] Mr Staudt says it could have gone under his Australia Post business account but despite this, maintains that there is no evidence available to demonstrate the property had been sent.

Contrary to the position expressed by Mr Staudt to the Commission, Mr Staudt’s responsive emails to the respondent did not advise that the property had been returned some four weeks earlier. To the extent that Mr Staudt relies upon his head injury to explain his uncertainty about what items of the respondent’s property he had in his possession,[155] this contention is entirely unsupported by any medical evidence and is rejected.

During the hearing, Mr Staudt gave evidence that he “can’t recall,”[156] but “definitely contacted”[157] the respondent by telephone via the “main line” to advise that the property had been returned. Later, Mr Staudt changed his position to say, “I think I called the main line.”[158] If this is so, no credible explanation is advanced by Mr Staudt to explain why he did not advise the respondent in any of the numerous pieces of correspondence that passed between the respondent, the respondent’s representative,[159] and Mr Staudt that he had (a) returned the respondent’s property in the week following his dismissal, and (b) called the respondent’s “main line” and advised orally as such.[160] The respondent’s position is that the property, estimated to be at last $2,000 in value, has not been returned to it by Mr Staudt.[161]

The evasive nature of Mr Staudt’s evidence in this respect undermines Mr Staudt’s credibility. Mr Staudt was either being deliberately obstructive in his correspondence with the respondent on this issue, or has misrepresented to the Commission that he returned the respondent’s property to it by post in the week following his dismissal or anytime thereafter. I find that Mr Staudt’s evidence that he returned the respondent’s property to it in the week following his dismissal to be entirely without foundation and I reject it. Mr Staudt’s seemingly dishonest representations to the Commission as to the return of the respondent’s property weighs heavily against a finding that Mr Staudt’s dismissal was harsh, unjust or unreasonable.

Unsubstantiated period from 12 May 2023

I have taken into account that the reasons given by the respondent for Mr Staudt’s dismissal in the termination letter states that Mr Staudt “effectively ceased work from some time after 12 May 2023.” Noting 12 May 2023 was a Friday, during these proceedings the respondent did not rely on the period between Monday 15 May and Tuesday 16 May 2023. A review of Mr Staudt’s calendar for these dates does not demonstrate any customer meetings were scheduled by Mr Staudt.[162]

However, this of itself does not prevent a finding that the dismissal is not harsh, unjust or unreasonable in circumstances where I am satisfied that “a” valid reason for Mr Staudt’s dismissal arises with respect to his work output in a more confined time period between 17 May and 30 May 2023. Nevertheless, I have taken into consideration that the respondent did not seek to establish the period between Monday 15 May and Tuesday 16 May 2023 as a period within which Mr Staudt effectively ceased performing his employment duties, despite relying upon this period in the decision to dismiss Mr Staudt.

Mr Staudt’s overall performance

I have taken into account Mr Staudt’s evidence that he routinely received praise from representatives within the respondent’s business regarding his performance. While the respondent does not rely on performance issues to validate Mr Staudt’s dismissal, it does not accept that Mr Staudt’s performance was strong, demonstrated, it says, by the provision of KPIs and advice from Mr Yates that Mr Staudt would be placed on a performance management plan.

Mr Staudt’s concerns about his commission plan

While Mr Yates does not accept that Mr Staudt’s sales targets were unachievable, I have taken into account that Mr Staudt held concerns about his capacity to earn commissions on the basis that his targets were unrealistic.

Proportionality

I have considered whether dismissal (in the present case, for misconduct) was a proportionate response to the conduct in question.[163] The conduct I have found to give rise to a valid reason for Mr Staudt’s dismissal by the first reason is to be considered against all of the circumstances of the case. Having regard to this context, I do not consider that dismissal was a disproportionate response to the gravity of the misconduct on which the respondent acted.

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

I have made findings in relation to each matter specified in s 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[164]

Having considered each of the matters specified in s 387, taking into account all of the evidence and based on my factual findings, I am satisfied that the dismissal of Mr Staudt was not harsh, unjust or unreasonable. Accordingly, I find that Mr Staudt has not been unfairly dismissed.

Mr Staudt’s application for an unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Mr N Staudt on his own behalf
Mr B Powles, of Olexo Law, on behalf of the respondent

Hearing details:

2023.
Melbourne:
September 15, 19.

[1] Court Book (CB) 40, CB 46 at [1c]-[1d], CB 756

[2] CB 758

[3] CB 757

[4] CB 47 at [3b]

[5] CB 118 at [12]

[6] Transcript of proceedings dated 15 September 2023 (Transcript day 1) at [401]-[402]

[7] CB 763 at [3]

[8] Transcript day 1 at [67], [384]-[385]

[9] Transcript day 1 at [427]

[10] Transcript day 1 at [643], [652]; CB 169; cf CB 136 at [7]

[11] CB 58

[12] CB 118 at [19]-[21]

[13] CB 163

[14] CB 118 at [22]; Transcript day 1 at [67]

[15] CB 118 at [24]

[16] CB 756

[17] Transcript day 1 at [1549]; cf [1558], [1562]

[18] Exhibit A1

[19] CB 757; Exhibit A1

[20] CB 757; Exhibit A1

[21] CB 757; Exhibit A1

[22] CB 757

[23] CB 121

[24] Transcript day 1 at [71]

[25] Transcript day 1 at [73]

[26] Transcript day 1 at [79]-[81]

[27] Transcript day 1 at [78]

[28] CB 757

[29] CB 757

[30] CB 757-758

[31] See CB 65-73; Transcript day 1 at [92]

[32] CB 758

[33] CB 179

[34] CB 758; Transcript day 1 at [113]

[35] CB 178

[36] CB 121 at [45]

[37] Transcript day 1 at [792]

[38] CB 758-759

[39] CB 98-99

[40] CB 101

[41] CB 99-100

[42] CB 136 at [13]-[14]

[43] CB 136 at [15]

[44] CB 121 at [47]

[45] CB 764 at [10]

[46] Transcript day 1 at [83]

[47] Transcript day 1 at [84], [89]

[48] Transcript day 1 at [91]

[49] CB 121 at [48]

[50] CB 105

[51] CB 189-190

[52] CB 104-105, 191

[53] CB 759

[54] Transcript day 1 at [127]-[131]

[55] Transcript of proceedings dated 19 September 2023 (Transcript day 2) at [1880]-[1881]

[56] Transcript day 1 at [279]

[57] CB 122 at [56]

[58] Transcript day 1 at [140]-[142]

[59] CB 123 at [57]

[60] Transcript day 1 at [143]

[61] Transcript day 1 at [144]

[62] Transcript day 1 at [1034]

[63] Transcript day 1 at [1039]-[1040]

[64] Transcript day 1 at [1431]-[1435]

[65] CB 123 at [58]

[66] CB 760

[67] CB 109

[68] Transcript day 1 at [1012]

[69] Transcript day 1 at [1651], [1667]

[70] Exhibit R1

[71] CB 172

[72] CB 171

[73] CB 170

[74] CB 173

[75] CB 245-288

[76] CB 289-313

[77] Transcript day 1 at [177]-[181]

[78] CB 241

[79] Transcript day 1 at [146]

[80] Transcript day 1 at [1018]

[81] Transcript day 1 at [1380], [1382]

[82] CB 320

[83] CB 320; Transcript day 1 at [1392]

[84] CB 321

[85] Transcript day 1 at [1384]

[86] CB 322-350

[87] Transcript day 1 at [177]-[181]

[88] CB 355-386

[89] CB 351-353

[90] Transcript day 1 at [178]-[181]

[91] CB 387-489

[92] Transcript day 1 at [178]-[181]

[93] CB 490-542

[94] Transcript day 1 at [178]-[181]

[95] CB 543-547

[96] Transcript day 1 at [178]-[181]

[97] CB 548-606

[98] Transcript day 1 at [178]-[181]

[99] CB 607-692

[100] Transcript day 1 at [178]-[181]

[101] CB 320; Transcript day 1 at [1392]

[102] CB 693-720

[103] Transcript day 1 at [178]-[181]

[104] CB 721-727

[105] Transcript day 1 at [178]-[181]

[106] CB 728-752

[107] Transcript day 1 at [178]-[181]

[108] Transcript day 1 at [161]

[109] Transcript day 1 at [162]-[165]

[110] Transcript day 1 at [166]

[111] Transcript day 1 at [167]

[112] Transcript day 1 at [179]

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

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

[115] MM Cables (A Division of Metal Manufacturers Limited) v Zammit Print S8106 (AIRCFB, Ross VP, Drake SDP, Lawson C, 17 July 2000) at [42]; see also Fenton v Swan Hill Aboriginal Co-operative Ltd [1998] FCA 1613

[116] Hatwell and Another v Esso[2018] FWC 2398 at [76]

[117] Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [32]; Gelagotis v Esso Australia Pty Ltd[2018] FWCFB 6092 at [116]

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

[119] Briginshaw v Briginshaw (1938) 60 CLR 336

[120] Ibid at 363

[121] Ibid per Dixon J at 362

[122] Ibid per Rich J at 350

[123] Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 per Dixon J at 216

[124] APS Group (Placements) Pty Ltd v O’Loughlin[2011] FWAFB 5230, [(2011) 209 IR 351 at [51]

[125] Transcript day 1 at [67], [384]-[385]

[126] Transcript day 1 at [139]

[127] CB 764 at [11]

[128] Transcript day 1 at [961]-[962], [969]-[975]

[129] G v H [1994] HCA 48; 181 CLR 387at [14]

[130] Transcript day 1 at [79]-[81]

[131] Exhibit R1

[132] CB 314

[133] CB 196

[134] CB 198

[135] Transcript day 1 at [158]-[159]

[137] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151

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

[139] Ibid

[140] Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at 7; Central Queensland Services Pty Ltd v Tara Odgers[2020] FWCFB 304 at [42]; Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

[141] Bartlett v Ingleburn Bus Services Pty Ltd t/as Interline Bus Services[2020] FWCFB 6429 at [19] and [21]; Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137 at [75]

[142] Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at 7

[143] Transcript day 1 at [1003]

[144] Transcript day 1 at [985]

[145] Jetstar v Meetson-Lemkes[2013] FWCFB 9075 at [68]

[146] CB 12 at [1.7]

[147] B, C and D v Australian Postal Corporation T/A Australia Post[2013] FWCFB 6191; 238 IR 1

[148] Transcript day 1 at [1164]

[149] CB 229

[150] CB 229

[151] CB 216-230

[152] CB 218-219

[153] CB 240

[154] Transcript day 1 at [1167]-[1168]

[155] Transcript day 1 at [1229]

[156] Transcript day 1 at [1244], [1250]

[157] Transcript day 1 at [1251]

[158] Transcript day 1 at [1274]-[1275]

[159] CB 231-239; Transcript day 1 at [1300]-[1301]

[160] Transcript day 1 at [1308]-[1309]

[161] Transcript day 1 at [1248], [1266]

[162] CB 172

[163] Gelagotis v Esso Australia Pty Ltd t/a Esso[2018] FWCFB 6092 at [117]; Owen Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [34]

[164] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357 at [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [92]; Edwards v Justice Giudice [1999] FCA 1836 at [6]-[7]

Printed by authority of the Commonwealth Government Printer

MONDAY 15 MAY	Internal sales meeting
	Internal 1:1 meeting
Thursday 18 May	Customer meeting (which coincided with a personal medical appointment)
	Internal monthly update

Monday 22 May	Internal sales meeting
Monday 22 May	Internal 1:1 meeting
Tuesday 23 May	Customer meeting
Wednesday 24 May	Internal 1:1 meeting
Friday 26 May	Internal weekly update

Monday 29 May	Internal sales meeting
Monday 29 May	Internal 1:1 meeting
Thursday 1 June	Personal leave
Friday 2 June	Personal leave

Monday 8 May	Internal sales meeting
	Internal 1:1 meeting
	Internal meeting
Tuesday 9 May	Customer meeting
	Customer meeting
	Customer meeting
	Customer meeting
Wednesday 10 May	Internal meeting
Thursday 11 May	Customer meeting
Thursday 11 May	Customer meeting
Friday 12 May	Internal update meeting
	Customer meeting
	Customer meeting
	Customer meeting (which coincides with a personal commitment)