Ning Li v PPD Australia Pty Ltd - [2022] FWC 496

[2022] FWC 496

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ning Li
v

PPD Australia Pty Ltd

(U2021/8411)

DEPUTY PRESIDENT MANSINI

MELBOURNE, 15 MARCH 2022

Application for an unfair dismissal remedy

This decision concerns an application by Mr Ning Li for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).

Mr Li was a Senior Import & Export Coordinator for PPD Australia Pty Ltd (PPD) from 30 April 2018 until his dismissal on 6 September 2021. Mr Li was ultimately dismissed on account of his unwillingness to participate in a performance improvement plan which was said to constitute a failure to comply with a reasonable and lawful direction in breach of the contract of employment.

Mr Li contends his termination was a result of bullying and retaliation. He asks the Commission to reinstate his employment with the Respondent to a promoted position, change his line manager and order compensation.

As attempts at conciliation did not result in agreement to resolve the matter, a program was set for arbitration and exchange of materials in advance.

At the hearing, Mr Li represented himself and PPD sought permission to be represented by counsel which was granted having regard to the matters I am required to consider at s.596 of the Act.

Mr Li sought to rely on the contents of his application and also filed a witness statement, bundle of documents and outline of argument.[1] PPD filed a witness statement of a Mr Matthew Wilson (Associate Director Talent Acquisition & HR – ANZ of the Respondent) with various annexures and a witness statement of a Mr Shengming Luo (Corporate Counsel, Director supporting the Asia-Pacific region of the Respondent).[2] Submissions were also filed.

I have determined that Mr Li was unfairly dismissed and to order a remedy of compensation. The reasons for this decision follow, arranged as:

INDEX

PART A: Initial matters to be considered [8]-[11]

PART B: Was the dismissal harsh, unjust or unreasonable?

I)   The evidence and submissions

· About the employment relationship [12]-[19]

· The reason for Mr Li’s dismissal [20]-[23]

· The First Issue [24]-[38]

· The Second Issue [39]-[46]

· The Third Issue [47]-[51]

· The Fourth Issue [52]-[56]

· Counselling and disciplinary process [57]-[78]

· Other matters [79]-[82]

II)   The findings [83]-[126]

III)       Consideration of section 387(a) to (h) [127]-[160]

IV) Conclusion [161]-[162]

PART C: Remedy [163]-[199]

PART A: Initial matters to be considered

A person who has been dismissed may apply to the Commission for a remedy pursuant to s.394 of the Act. It is not contentious and I am satisfied that Mr Li was terminated at the initiative of his employer and was dismissed within the meaning of ss.385 and 386 of the Act.

Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the application.

There is no dispute between the parties and I am satisfied on the evidence that:

a)Mr Li’s application for unfair dismissal was made within the period required at s.394(2) of the Act;
b)Mr Li was a person protected from unfair dismissal;
c)The Small Business Fair Dismissal Code did not apply to Mr Li’s dismissal; and
d)Mr Li’s dismissal was not a genuine redundancy.

Having considered each of the initial matters, I am required to consider the merits of Mr Li’s application.

PART B: Was the dismissal harsh, unjust or unreasonable?

I) The evidence and submissions

About the employment relationship

PPD is a global contract research organisation providing outsourced services to pharmaceutical and biotechnology clients, predominantly in the area of running clinical trials.[3]

Mr Li’s employment as Senior Import/Export Coordinator commenced on 30 April 2018. His primary function in this role was to ensure that import and export activities associated with pharmaceutical products were completed pursuant to PPD and client requirements and in compliance with applicable regulations. Mr Li was in the Australian and New Zealand (ANZ) team and reported to a Ms Shelly Wang.[4] Initially Mr Li was the only person in Australia performing this work but, by the time of his dismissal, the team had grown to a total of three (including Mr Li).[5]

The employment was subject of an employment contract which Mr Li signed on 18 April 2018. The contract described the duties to be performed as those discussed at interview and specified certain obligations on Mr Li during his employment to, among other things, faithfully and diligently perform his duties and comply with all reasonable directions of PPD. The employment contract also referred to disciplinary and grievance procedures, contained in “the Staff Handbook” and provided for termination on one months’ written notice which may be paid in lieu of being worked.[6]

Mr Li accepted that the “Australian Employee Handbook” (Handbook) applied to his employment with PPD.[7] The most recent version of the Handbook in evidence was dated February 2020 and relevantly provided:

· In the introduction, that its contents reflect and are in addition to the general conditions of employment set out in the employment contract and provides a “general guide” on company policies which may change from time to time;
· At 2.5, for equal employment opportunity and specifically that PPD does not permit unlawful discrimination of any kind;
· At 9.7, for performance problems to be addressed through a “Performance Improvement Plan” (PIP) wherein the manager and employee work together to identify areas for improvement and action plans and the employee must demonstrate improved performance in monthly reviews, a process lasting up to three months but which period may be shortened if there is no significant and sustained improvement observed in which case the PIP may be deemed a failure and will escalate to termination;
· At 12, for a code of conduct;
· At 13, for a disciplinary procedure;
· At 13.8, for a grievance procedure;
· At 14, for termination.[8]

Mr Li accepted that the Handbook was relevantly the same as the January 2016 version which was provided to him on commencement in terms of the disciplinary procedure.[9]

Mr Li was taken to the Handbook and accepted that the PPD code of conduct applied to his employment.[10] There was evidence that Mr Li had completed training on company policies, including the PPD code of conduct course in March 2019, March 2020 and March 2021, workplace harassment, emotional intelligence and relationship management among other things.[11] Mr Li told the Commission in evidence that he understood PPD does not permit unlawful discrimination and knew this was important to the company.[12]

A position description outlined the essential functions and other information for the role of “Sr Import/Export Coord”.[13] The position description in evidence was dated 10 June 2020 which Mr Li said was a generic global document and not specific to his role.[14] It provides for the following, which Mr Li accepted were features or requirements of his specific role:

· The purpose of the role is to “act as a liaison and support to the local team in all areas of clinical supplies lifecycle”;
· An essential function is “may train or assist junior staff”; and
· Knowledge, skills and abilities required include “an ability to utilize (sic) proper channels of communications to voice concerns and suggestions” and “capable of working in a team environment”.[15]

Mr Li also gave evidence that he was aware of PPD’s “Defining Principles” and that these applied to his employment,[16] most relevantly the following:

· “We do the right thing”, including “Treat all people with courtesy and respect, and value diversity as a strength”;
· “We are one PPD”, including “Build strong internal relationships through frequent and inclusive formal and informal dialogue” and “Accelerate personal development by giving, accepting and soliciting advice and coaching”.[17]

The reason for Mr Li’s dismissal

PPD contends that there was a valid reason for Mr Li’s dismissal arising from his refusal to participate in a “performance improvement plan” (PIP). It said that the direction to participate in the PIP, first given in a warning letter of 19 July 2021 (Warning Letter), was a lawful and reasonable management direction. Further, that the refusal to participate manifested an unwillingness or incapacity by Mr Li to reflect on his recent and repeated unsatisfactory conduct. PPD pointed to four issues as demonstration of such unsatisfactory conduct which, when taken together, justified its concern and direction to participate in the PIP:

a)Discriminatory questions of candidates in job interviews (First Issue);
b)Attempt to undermine a management decision in response to an unsuccessful application for promotion (Second Issue);
c)Disrespectful communication with line manager (Third Issue); and
d)Refusal to perform duties as required specifically regarding mentoring new staff members (Fourth Issue).

The dismissal letter was dated 6 September 2021 (Termination Letter). The Termination Letter is extracted in full at Annexure A to this decision.[18]

For his part, Mr Li said that he never did anything wrong, from the beginning, but rather was subject of unfair treatment and retaliation. He contended that his manager, Ms Wang, held a grudge against him notwithstanding that he performed exceptionally well and his achievements were outstanding. Further, Mr Li maintained that the Warning Letter and the PIP were “invalid” including because they relied on an incident that was previously resolved and otherwise false allegations for which there was no opportunity to respond. In Mr Li’s submission, the Warning Letter was intended to get him to resign and the subsequent PIP process a “set up” which was used to get rid of him.[19]

Each issue is addressed further below.

The First Issue: Discriminatory questions of candidates in job interviews

The First Issue relates to an allegation that Mr Li asked discriminatory questions of three female job candidates, in three separate job interviews.

It is common ground that, in or around late March 2021, Mr Li interviewed three female candidates for a position in the clinical supplies department. He was the only PPD representative in those meetings.[20]

Following those interviews Ms Wang received written feedback from each candidate which included, among other things:

· “There is one thing that I would like to bring to your attention that holds me back from accepting the offer. During the interview, I was asked questions about my marital status and plans for having kids. I didn’t know how to respond to those questions back then and I didn’t have the gut to say it straight out but I don’t appreciate being asked these questions.” (First Candidate)
· “I would like to thank you for this opportunity, but I have just finished the interview with Jeff Li, and I would like to express my concern about the interview, he was really rude in the way that he spoke to me, and call me a liar, he could not believe why the business is closing, he said it is unbelievable, he did not let me finish any of my sentences, so it was really difficult to continue with this interview; so, I would like to thank you, but I cannot continue in the process, because I cannot imagine working with a person like him every day..” (Second Candidate)
· “..Hope you will remember that during the interview I had hinted at my strengths on exports mostly but [Mr Li] was mostly focusing on imports experience and not giving me a chance to convince my confidence. It is a disappointment to reach the last round and being put down.” (Third Candidate)[21]

Mr Li provided his own feedback about the candidates to Ms Wang by email.[22] In the course of that email exchange:

a)On 14 April 2021, Ms Wang provided feedback of one candidate and stated her expectations of appropriate interview conduct by a PPD representative and further stated: “Anyway, just bring this lessons and learn, and I’m sorry to inform you that you cannot do interview anymore, because from previous experience you may put PPD in a bad slides (sic) and of cause this is not the right way to approach an interview”.

b)On 15 April 2021, Mr Li responded:
“Hi Shelly,
Without verifying and looking into the truth with me, you made such arbitrary and wrong conclusion based on solely the untrue remarks of the interviewee. I consider this is an act of slandering and tarnishing my personal reputation. I am extremely indignant at this behaviour.
The truth is that :
Everything was normal throughout the interview process with the interviewee, she was unable to answer me the basic questions, skills and knowledge regarding importation required for this import coordinator role during the interview, I believe that she felt lost after the interview and emailed to our recruiter to defile me.
As a professional person, how I could tell interview that you are liar during the interview???
In the past more than 25 years of professional experience including 3 years with PPD, I have never used any rude language or behaviour to target other peoples.”[23]

c)Also on 15 April 2021, Ms Wang responded and provided the feedback of the Third Candidate to Mr Li. In that email, Ms Wang said she had “never questioned [Mr Li’s] professional experience” and also confirmed her decision was made based on the feedback of all candidates.[24]

On advice of her manager, Ms Wang then discontinued the email exchange with Mr Li and sought HR support from Mr Wilson. Mr Wilson said he had contacted each of the job candidates directly and assessed their feedback as genuine.[25]

On 16 April 2021, Mr Li attended a meeting with Mr Wilson, Ms Wang, a Mr Bernard Jaucot (Senior Director of PPD) and a Ms Adriana Diaz (Global Head Trade Compliance & Imports/Exports of PPD) at which it was put to him: that he had asked questions of interview candidates related to their marital status and pregnancy intentions; and that his conduct and communication style during the interviews was perceived by each candidate as inappropriate based on their feedback.[26]

Mr Wilson recalled that Mr Li admitted that he did ask “some of” the candidates about their marital status and pregnancy intentions, and had sought to explain with words to the effect that he “was trying to protect the company as a lot of training needed to be done and then someone who may get pregnant would just go on leave”.[27] Mr Wilson gave evidence that he and Mr Jaucot replied that it was never appropriate to ask a candidate those types of questions in an interview - it was against company policy, PPD would never discriminate against someone based on their marital status or because of their pregnancy and they did not support Mr Li’s views.[28] According to Mr Wilson, Mr Li continued to protest that he was trying to do the right thing and his questions were very common and he had been asked them too (although he did not say when or at what company).[29]

Before the Commission, Mr Li: strongly denied that he refused to accept responsibility for his conduct; said Mr Wilson was not being truthful; gave evidence that he admitted his questions were inappropriate after his management told him, that his management accepted this and the matter was concluded at that time.[30]

Regarding the First Candidate, Mr Li admitted that he had asked questions about her marital status and plans for having children.[31] He also gave evidence to the Commission that he was not discriminatory because he made her an offer of employment (which she turned down) and:

“Because, as I said, this candidate have the similar background, Chinese background. In Chinese background – Chinese culture, this question is okay, it’s common questions. And furthermore, why I ask this sort of question is training and mentoring new staff, in this position, is not just a couple of weeks. It will take a couple of months, depends on the skill and experiences of the candidates, all right? So as the Senior Import and Export Coordinator, why PPD give me this chance, ask me to do the interview, is because I will be the mentor for this new staff. […] And also, I have to do my daily, day-to-day operation. I’m not the supervisor, or the manager, who can only give the training, just one task, no. I also have to finish my workload, the project assigned to me, right? So the training is not easy, so what the purpose is – I have to get candidates who can fully concentration on the work.”[32]

Mr Li then rejected the proposition that what he was really saying was that he did not want to have to devote substantial time training women who then took parental leave. Rather, he said:

“Because we – I just wanted to choose the best candidates, that’s nothing wrong. The best candidates who can put the most concentration on the work, because we don’t want the training to be interrupted by something else, right yes.”[33]

Regarding the Second and Third Candidates, Mr Li said neither had the necessary skills and experience or could satisfy him of their answers and strongly denied having called the Second Candidate a liar or being rude to her.[34] He sought to justify the Third Candidate’s feedback as eager to get the job which he said is not unusual.[35]

According to Mr Wilson, on account of Mr Li’s admission, the 16 April 2021 meeting resulted in a “verbal warning” given to Mr Li that his behaviour had been unacceptable and was in breach of company policy and discrimination laws; and Mr Li was also informed that he would not be participating in further interviews at that time.[36] He said that by the end of the meeting a line was drawn under the issue regarding Mr Li’s interview conduct and “we had come to a conclusion for that particular matter”. Mr Wilson elaborated in cross-examination that by ‘conclusion’ he was referring to the verbal warning.[37]

Mr Li strongly denied being given a verbal warning in this meeting, and said that the conclusion of the meeting was that he was to continue the interviews and Mr Wilson was to provide him with further training (which he never did).[38] Mr Wilson accepted that he did not give Mr Li any further training after this meeting.[39]

There is no evidence that this First Issue was raised again until the Warning Letter of 19 July 2021. The Warning Letter stated that the allegation(s) subject of this First Issue were substantiated with regard to Mr Li’s response in the meeting of 16 April 2021 and described the conduct as in violation of PPD policy and workplace discrimination legislation. The Warning Letter did not reference a verbal warning but stated that Mr Li was put on notice at the 16 April 2021 meeting that his behaviour was not aligned with PPD’s defining principles or code of conduct and would not participate in interviews for the foreseeable future.[40]

This First Issue was also referenced in the final Termination Letter of 6 September 2021, set out at Annexure A.

The Second Issue: Attempt to undermine a management decision in response to an unsuccessful application for promotion

The Second Issue relates to an allegation that, following an unsuccessful application for promotion, Mr Li communicated with PPD’s global departmental leadership in an attempt to undermine Ms Diaz’s decision and this was unprofessional and not aligned to PPD’s defining principles.

On 16 April 2021, Mr Li wrote to Mr Jaucot by email in which Mr Li thanked him for organizing the meeting of earlier that day and requested a “one to one” meeting about his concerns about promotion and other issues.[41] Mr Li said that during the subsequent meeting with Mr Jaucot he was invited to apply for promotion to Principle Import & Export Coordinator or become a Trade Compliance Manager.[42]

On 26 April 2021, Mr Li applied for a promotion to the position of Trade Compliance Manager. On 25 May 2021, Mr Li was interviewed for the role by Ms Diaz.

On 25 June 2021, Mr Li was informed by Ms Diaz that he was unsuccessful for the position because a candidate “with more in depth regional experience” was sought, noting Mr Li’s “expertise is good but very narrowed to AUS/NZ”.[43] Ms Diaz also stated that, as “mid-year review” was approaching, Ms Wang would be discussing alternatives with Mr Li to continue his development within the PPD career path.

On 28 June 2021, Mr Li wrote to Mr Jaucot (copying a Ms Eef Verhaegen (Vice President Clinical Supplies of PPD) regarding this outcome. In that correspondence, Mr Li expressed his view that the reasons provided for refusing his application were “totally unacceptable and untenable”. He acknowledged that Mr Jaucot was no longer responsible for the import and export team but nonetheless sought to “report the result of this matter to [him]”.[44] Before the Commission, and although accepting that it was Ms Diaz’s decision to make, Mr Li maintained that the reasons for his rejection were “ridiculous” and his ANZ experience must be relevant to the role and others had been promoted to such roles without greater regional experience.[45]

That same day, Ms Verhaegen responded and encouraged Mr Li to seek feedback from Ms Diaz directly in order to define focus areas for career development or alternatively to reach out to HR advisory who can also help with these types of conversations.[46] In cross-examination, Mr Li said he had not included Ms Diaz in his email because he had not wanted to cause conflict and believed she had treated him unfairly; he had not asked anything of management he was simply reporting the truth – he also did not call Ms Diaz as Ms Verhaegen had suggested.[47]

The allegation subject of this Second Issue was first raised with Mr Li in the Warning Letter of 19 July 2021 as an “incident” that Mr Wilson had been made aware of, followed by:

“Whilst we can accept you may have been disappointed by not being selected for the TCM position, your approach afterwards to contact global departmental leadership to try and undermine Andriana Diaz’s decision is not acceptable and not aligned to our Defining Principles in Action, and in general is not the conduct expected of a professional. The correct chain to respond to this would be to seek guidance from Adriana and Shelly on what areas you need to develop in order to move to a higher level position, and then work on those areas.”[48]

This Second Issue was also referenced in the final Termination Letter of 6 September 2021, set out at Annexure A.

The Third Issue: Disrespectful communication with line manager

The Third Issue relates to an allegation that Mr Li was disrespectful in communication with his line manager in a meeting of 12 July 2021.

On 12 July 2021, Ms Wang met with Mr Li. It is not contentious that Mr Li’s desire for promotion was discussed, Ms Wang said he would be promoted if he took on extra responsibilities and Mr Wang refused to take on additional tasks that belonged to another role or were outside the scope of his role.[49]

Mr Wilson gave evidence that, on 14 July 2021, Ms Wang raised with him concerns about Mr Li’s behaviour during the 12 July 2021 meeting, including that Mr Li had insisted that if Ms Wang did not promote him there must be something wrong inside the company, and then accused Ms Wang of “using her power against him” and of being “a nit-picker and only sees his faults to refuse his promotion”.[50] Ms Wang did not give evidence to the Commission. Before the Commission, Mr Li denied having made such statements in the 12 July 2021 meeting.[51]

The allegation subject of this Third Issue was first raised with Mr Li in the Warning Letter of 19 July 2021, as follows:

“I understand you are of the opinion that a promotion to the next level is awarded as a natural progression and have compared yourself to several other colleagues in the region. You have been informed by your line manager on several occasions that a promotion to Principal level requires uptake of additional responsibilities and she explained why the other colleagues were we promoted. I am told that you have communicated that you are not willing to take on additional responsibilities. You also accused your line manager of being a nitpicker and using her power against you.”[52]

This Third Issue was referenced in the Termination Letter of 6 September 2021, set out at Annexure A.

The Fourth Issue: Refusal to perform duties as required specifically regarding mentoring new staff members

The Fourth Issue relates to an allegation that, during the course of the discussions with Mr Li about the First, Second and Third Issues, and despite a requirement in his job description, Mr Li said that he was not prepared to train or mentor other employees.

The email exchange between Mr Li and Ms Wang that followed the job interviews in April 2021 is in evidence and includes an email of 13 April 2021 in which Mr Li expressed his disagreement as to the preferred candidate and said: “If you will insist to hire her, I can not be her mentor”.[53] Ms Wang replied, on 14 April 2021, in which she said “I will not allocated you as the mentor for the new coordinators, I will train her as the LM and Edwina will be the buddy of her to provide necessary support in the future (sic)”.[54] The Third Candidate was ultimately employed in the role. Mr Li subsequently refused to train or mentor the successful candidate for the role.[55]

The evidence of the 12 July 2021 meeting includes a discussion about “additional responsibilities” in the context of what was required to achieve a promotion, which Mr Li rejected and contended was designed to ensure he did not achieve promotion,[56] but there is no specific reference in that evidence or the Warning Letter which followed to a refusal to perform training and mentoring duties. In cross-examination, Mr Wilson could not say why (or why not) the allegation that Mr Li refused to train and mentor others was not referred to in the Warning Letter.[57]

On 1 September 2021, Mr Wilson, Ms Wang and Mr Li attended a meeting (detailed further below). Mr Wilson recalled that, during this meeting, Mr Li said that it was not his job to train and mentor others. Mr Wilson’s evidence was that, when Ms Wang reminded Mr Li that this was included in his job description and a requirement of his role, he cut her off and told her that was not correct.[58] I did not understand it to be disputed that the expectation that Mr Li would perform training and mentoring duties was discussed in the 1 September 2021 meeting but Mr Li denied making such statements of refusal in that meeting and further pointed to examples from his 2019 and 2020 performance reviews as demonstration of times when he had trained and mentored others.[59]

This Fourth Issue was not raised in the Warning Letter but was referenced in the Termination Letter of 6 September 2021, set out at Annexure A.

Counselling & disciplinary process

PPD contended that Mr Li knew that performance improvement under the PIP was the only way to secure his ongoing employment and, despite that knowledge, he refused to participate in the PIP and was therefore dismissed. It said procedural fairness was accorded. For his part, Mr Li said that was that there was no single fact to support the allegations in the Warning Letter and insisted that the Warning Letter and the PIP were “invalid”.

The First Issue was initially raised with Mr Li in the 16 April 2021 meeting. Mr Wilson’s evidence that a verbal warning was given during that meeting was strongly opposed by Mr Li, as summarised above.

After Ms Wang raised allegations of Mr Li’s behaviour in the 12 July 2021 meeting with Mr Wilson, on 16 July 2021, Mr Wilson consulted with PPD’s APAC General Counsel (Mr Luo) and APAC Human Resources Head (a Mrs Kras Fridale) and they “collectively” reached the view that Mr Li be placed on a PIP, with specific improvement required on some of his behaviours, which could then be discussed in greater detail at his mid-year check in. Mr Wilson advised Ms Wang of the recommendation. Mr Wilson penned a warning letter which he said he wrote because he was concerned about Mr Li’s pattern of conduct which he considered breached PPD’s defining principles and code of conduct.[60]

From 19 July to 9 August 2021, Mr Li was on a period of annual leave. Mr Wilson described the application to take leave as “last minute” and so the decision was taken to issue a written warning letter by courier, to give Mr Li ample opportunity to understand the proposed process and provide an opportunity for Mr Li to respond before the mid-year check in which is routinely held in August each year.[61]

On 20 July 2021, Mr Li received by courier the Warning Letter (dated 19 July 2021) and copy of PPD’s defining principles and code of conduct. The letter referred to “recent behaviours displayed” in Mr Li’s employment then detailed the First, Second and Third Issues (summarised above). The Warning Letter concluded with an assurance that there is no issue with Mr Li’s performance in his position but reiterated that success in his role required display of the correct behaviours. The warning itself was as follows:

“Considering the above situations, we are issuing you a 1^st warning letter and notifying you that you will be placed on a Performance Improvement Plan (PIP) once you return from your vacation. If your behaviours don’t improve during the course of the PIP, your employment with PPD may be terminated. I will hold a meeting with you to discuss this in more detail once you return from vacation, this should be around mid-August 2021.”

At the hearing, Mr Wilson accepted that (other than the matters discussed in the 16 April 2021 meeting) he had not investigated or discussed the other allegations contained in the Warning Letter with Mr Li prior to issuing it – because he had already had enough communication with Mr Li and had seen the way he communicates with people, as the email communication about the promotion issue was written by Mr Li.[62] Mr Wilson acknowledged that the timing was “not ideal” but said he had hoped that Mr Li would use his annual leave to reflect and perhaps grow.[63]

On 5 August 2021, Mr Li sent an email to “corporate compliance” being a complaint which alleged the Warning Letter was “unlawful” and a “fabrication to retaliate [against] me” as well as “workplace bullying and oppression” and that he was “suffering mental and psychological pain”. The complaint contains three numbered allegations, in summary:

a)Mr Wilson had grossly distorted the facts of the 16 April 2021 meeting and it is extremely ridiculous to use that matter as a reason for the Warning Letter given it had already concluded some months ago. Mr Li said he had explained in the meeting that his actions were for the benefit of PPD, that PPD had agreed and the meeting concluded with Mr Li continuing to participate in interviews and was to be provided with training by Mr Wilson but Mr Wilson had never given him any such training.
b)The rejection of Mr Li’s promotion application was unfair treatment because it was inconsistent with prior feedback of Mr Jaucot and Ms Diaz, Mr Li does not agree with the reasons and it is unfair to issue a warning for making a report to global management because it is a most basic right to report such unfair treatment.
c)Taking on more responsibilities is one of the excuses Ms Wang has relied on to prevent Mr Li’s promotion. Mr Li has already taken on many additional duties as evidenced by his three year anniversary email from Ms Wang.[64]

On 11 August 2021, Mr Li received a calendar invitation to a meeting scheduled to take place on 13 August 2021 to discuss his PIP, a copy of which was also provided (not attached to the Warning Letter per Mr Wilson’s written evidence).[65] Mr Wilson summarised the PIP as setting out areas for development that included: enhancing the understanding of PPD’s five Defining Principles; Senior Import/Export Coordinator responsibilities improvement; impropriety behaviour improvement; select work improvement items; and adherence to HR guidelines.[66] Mr Li responded that same day to request that the meeting be post-poned so that he could await feedback from the HR management team. Mr Wilson sought clarification from Mr Li about what he meant by HR management feedback and did not receive a response.[67]

On 12 August 2021, Mr Li emailed “corporate compliance” again and expressed his view that it was inappropriate to communicate directly with Ms Wang and Mr Wilson pending the investigation of his complaint. Mr Li received a response shortly thereafter which confirmed that Ms Wang and Mr Wilson had not been made aware of his complaint and that this should not pause his mid-year review or implementation of the PIP. Ms Wang separately emailed a PIP for discussion at the meeting and asked Mr Li to review its contents before the meeting.[68]

On 13 August 2021, the meeting proceeded and was attended by Mr Wilson, Ms Wang and Mr Li. Mr Li stated that he had made a formal complaint to “HR management” about the Warning Letter.[69] Mr Li was invited to give his response and the meeting was then adjourned.[70]

On the evening of 13 August 2021, Mr Li received an email from “corporate compliance liaison” which said: “The investigation has been completed. The implementation of the warning letter was found to be appropriate and no retaliation was found. Thanks”.[71] There was no investigation report in evidence.

On 26 August 2021, Mr Wilson was advised that Mr Li’s complaint was not substantiated and the outcome had been communicated to him and so Mr Wilson took steps to arrange a further meeting with Mr Li.[72]

On 1 September 2021, Mr Wilson, Ms Wang and Mr Li met (for around one hour and forty-five minutes). By Mr Wilson’s account, the first part of the discussion was about the mid-year check in and the second matter discussed was the PIP. Mr Wilson contended that the meeting commenced with Mr Li repeating that the Warning Letter was invalid and that “[you] don’t know my job”. Mr Wilson also said he observed that Mr Li interrupted and cut Ms Wang off when she was speaking and also told her she was not correct about a requirement in his job description. Mr Wilson’s evidence was that at one point he took the opportunity to call this behaviour out and explained to Mr Li that it was not appropriate to speak to his manager in this way but Mr Li continued to be argumentative and to disagree.[73] For his part, Mr Li denied making any rude comments or interrupting Ms Wang.[74]

The PIP was also discussed, Mr Li said that it did not apply to him and he would not participate in it. Mr Wilson advised that the PIP process would be for three months and they would look for behavioural improvements during that time but, if he did not demonstrate those improvements, then his employment would be at risk. The meeting ended when Mr Li confirmed that he would not participate in the PIP process.[75] Mr Li denied much of what was attributed to his conduct in this meeting but accepted that he said he was not willing to participate in the PIP (because he believed it was invalid and his employer was very happy with his performance in his job) and that the meeting ended at that point.[76]

Also on 1 September 2021, Mr Li sent an email to Ms Wang with his “mid-year check in comments” and requested to see “the comments of 5 persons from the team”.[77]

On 2 September 2021, Mr Wilson consulted with Mr Luo (who had not met Mr Li) and Mr Luo recommended termination of Mr Li’s employment if he continued to refuse to participate in the PIP process.[78]

At 2.14pm on 3 September 2021, a Ms Rebecca Maxwell (Associate Director – Regional Operational Delivery – Australia and New Zealand of PPD) sent the following email to an internal distribution list (of managers, excluding Mr Li):

“Hi Team,
FYI Jeff’s last day will be 6^th Sept.
For future queries related import/export, trade compliance of Australia & New Zealand, please keep reaching out […] [email].”[79]

At 2.59pm on 3 September 2021, Ms Maxwell’s email was forwarded to Mr Li by a colleague with an expression of gratitude and well wishes for Mr Li’s future. Mr Li then emailed Ms Wang requesting an explanation for Ms Maxwell’s email:

“It is ridiculous that I have not received notice from you as my manager, however, the other team has been notified.”[80]

At the hearing Mr Wilson expressed PPD’s regret but said that he had put in place plans to protect business continuity and, in the course of doing so, other team members were notified of Mr Li’s termination before Mr Li was notified because:

“from my thinking at that point in time when we had the meeting on 1 September [he was] extremely set in [his] position that [he was] not going to participate in the PIP process. So I had informed local leadership … and that had inadvertently been forwarded on to someone else, not by me, but then it was, as you know it was forwarded to [Mr Li].”[81]

Later on 3 September 2021, there was a meeting of Mr Wilson, Ms Wang and Mr Li at which Mr Li was informed that he was afforded a further opportunity to respond. He was not directly offered but did not request to bring a support person.[82] Mr Wilson alleged that Mr Li’s continued refusal to participate in the PIP process as expressed during that meeting caused PPD to lose trust and confidence in him; Mr Li contended that the dismissal was effectively a fait accompli - he was not given a chance to say otherwise – yet he also told the Commission that his position had not changed since 1 September 2021 and he was not going to participate in the PIP.[83] By the conclusion of that meeting, Mr Wilson confirmed the decision to terminate his employment, shared his screen with Mr Li and showed him a draft termination letter and calculation of termination entitlements including payment in lieu of notice.[84]

Mr Wilson said he did not email the Termination Letter to Mr Li until around 8.00pm on 6 September 2021, because he had a very busy day and did not get to it right away.[85]

Following his dismissal, Mr Li queried payment of certain entitlements (some of which were paid later, pending his return of company laptop but also claimed payment for overtime alleged to have been worked).[86]

Other matters

PPD has around 300 employees in Australia.[87] Mr Li claimed there are around 25,000 employees globally.[88]

Immediately prior to his dismissal, Mr Li earned $77,838.48 per annum ($1,496.70 per week) plus superannuation.[89] The Termination Letter reflected a rate of $40.45466 per hour.[90]

Mr Li’s professional career extended for some 25 years prior to his dismissal. He said he was the first person to join the importing and exporting division.[91] He provided evidence of his prior employment history with PPD including: performance reviews from 2019 and 2020-year end; his compensation rate review for 2021; and congratulatory emails from Ms Diaz and Ms Wang including favourable comments about his performance (including for his strong relationships and support provided to the team) upon reaching three years’ service with PPD.[92]

Notwithstanding the Commission’s written direction to do so, and warning that his case may be compromised if he did not do so, Mr Li did not file evidence relevant to the question of remedy. At the hearing, Mr Li was afforded further opportunity to adduce such evidence. In response, Mr Li’s oral evidence was that he had applied for more than thirty jobs in his area but did not get any interviews. Mr Li initially objected to providing documentary records to support this claim, out of concern for his privacy (and would not provide redacted versions). Then Mr Li said that he cannot give any evidence of looking for a new job.[93] He also expressed his view that the unfair dismissal made it hard, as well as “this pandemic period”.[94]

The findings

Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[95] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination. [96]

Some initial observations about the evidence, which involved a number of strong contests:

a)I assessed Mr Li as a competent individual and his performance was not subject of any criticism by PPD. In evidence before the Commission, he presented as defensive and regularly interrupted counsel. Mr Li’s strong denials of the various allegations were often contradicted by his own evidence – this did not assist in establishing his credibility particularly regarding important factual contests.
b)Some of the alleged incidents occurred many months prior to the dismissal. There were no contemporaneous notes produced in evidence. The absence of Ms Wang in evidence did not assist in testing the voracity of allegations said to have been founded on her direct interactions with Mr Li. There were errors in Mr Wilson’s written evidence which I accept were inadvertent but reflect a lack of care taken as to the detail when preparing this statement.

I make the following findings of fact having regard to the evidence that is before the Commission. For completeness, any recitations of non-contentious evidence constitute findings I have made.

About the employment relationship

The employment relationship was governed by the employment contract signed by Mr Li on 18 April 2018. It plainly required Mr Li to comply with all reasonable directions of PPD.

The employment contract refers to duties as discussed in the interview. The position description in evidence is dated some two years after Mr Li’s commencement and there is no evidence about when it was first given to Mr Li. Notwithstanding that the position description may be a generic global document, and regardless of whether it was contractually binding, the purpose, certain essential functions and key requirements of Mr Li’s role were uncontroversial and Mr Li understood as much (see paragraph [18] of this Decision).

The employment contract expressly incorporated the disciplinary and grievance procedure in the “Staff Handbook” (which, it is not controversial and I accept, is a reference to the documents in evidence titled “Australian Employee Handbook”, earlier defined as “Handbook”) and that procedure remained unchanged in the more recent version. Whether the remainder of the Handbook was contractually binding, it is not controversial it constituted PPD’s reasonable expectations of him in his role. Mr Li also acknowledged his awareness of and regular training in the PPD code of conduct set out therein. Similarly, the relevance of PPD’s defining principles and expectation that Mr Li would adhere to those was not controversial.

The First Issue

I consider the evidence to establish and I find that, in conducting the three job interviews on behalf of PPD in or around March and April 2021, Mr Li asked at least one female interviewee about her intentions to marry and have children. The written feedback of the First Candidate was not able to be tested but I accept it as independently provided to PPD and as a record of the First Candidate’s discomfort about those questions, in writing, and withdrawal from the process on account.

I find Mr Li’s evidence regarding, on the one hand:

· his acknowledgement of PPD’s equal employment opportunity policy and prohibition on unlawful discrimination of any kind; and
· denial of any refusal to accept responsibility for his conduct in the First Candidate’s interview,
to be a jarring contradiction to that of his subsequent and strident insistence in evidence that, on the other hand:
· his questions of the First Candidate were not discriminatory (because he ultimately offered her the job anyway and these questions are culturally acceptable between individuals of Chinese background); and
· there is nothing wrong with choosing the best candidate being someone who can “fully concentrate” on the work.

I do not accept that there was any legitimate basis to ask such questions of the First Candidate. The First Candidate, by her written feedback, plainly felt uncomfortable having told PPD that she did not appreciate being asked these questions and declined the role for another role that offers flexible working arrangements better suited to her and her family. On Mr Li’s own evidence I consider these questions were asked for a discriminatory purpose and at the very least not justified and inappropriate. I find the questions asked of the First Candidate were inconsistent with PPD’s expectations about equal employment opportunity and conduct expected in the workplace.

In light of Mr Li’s own evidence, I consider it most likely that such questions were asked of all three female candidates but do not consider the evidence that is before the Commission sufficient to justify (and therefore do not make) such finding.

Whether such questions were asked of the Second and Third Candidates, each of the three female candidates provided negative feedback about Mr Li’s behaviour and communication in conducting their respective job interviews and two candidates declined to continue the recruitment process. The written feedback in evidence was not able to be tested but I accept it as independently provided to PPD and for at least the two withdrawing candidates the Commission was not taken to any apparent motive to provide dishonest feedback. It is difficult to rationalise Mr Li’s denial of any rude or inappropriate conduct in the interviews with his admission about the questions asked of the First Candidate, his strong and scathing views about the Second and Third Candidates (expressed in the April 2021 emails to his line manager) and his demeanour in evidence on this issue before the Commission. Beyond my earlier finding about the discriminatory questions of the First Candidate, on the evidence before the Commission I am not able to definitively conclude that Mr Li was otherwise rude or inappropriate during the interviews. However, in light of the candidates’ feedback and his response, it is apparent that Mr Li lacked the ability to accept feedback of this kind and reflect on his communication style and impact on others.

After initially raising the candidates’ feedback with Mr Li and, on 14 April 2021, Ms Wang received Mr Li’s response and then conveyed: her expectation that Mr Li would “learn” from this; and her decision that, as a result of this feedback, he would not be conducting further interviews. The matter may well have ended there. However, by his 15 April 2021 email response, Mr Li plainly did not accept this outcome and escalated the matter. It may be acknowledged that Mr Li was seeking to convey his strong denial of the allegations, and that this occurred by email and was therefore absent the interpersonal nuance of a face-to-face communication. Nonetheless, I find Mr Li’s choice of words was unnecessarily direct, accusatory and in part aggressive towards his line manager – at the very least, an unprofessional means of objecting to Ms Wang’s apparent acceptance of the candidates’ feedback and again inconsistent with PPD’s reasonable expectations of courteous, professional and respectful conduct in the workplace.

A meeting was convened on 16 April 2021 with Mr Li, Mr Wilson, Ms Wang, Mr Jaucot and Ms Diaz. No contemporaneous record or note of that discussion or the outcome was produced. On what is before the Commission, I prefer the evidence that, in this meeting:

a)The allegations subject of the matters earlier defined as the First Issue were discussed and talked through with Mr Li.
b)Mr Li admitted to asking questions about marital status and pregnancy intentions of at least the First Candidate.
c)Mr Li acknowledged the inappropriateness of his conduct once advised by management, but continued to try and defend, justify or explain, his questions of the First Candidate in the course of the discussion. Indeed, Mr Li continued to do so in his oral evidence before the Commission as I have earlier found and as detailed above.
d)Whether the term “verbal warning” was expressly stated, Mr Li was counselled during this meeting. Mr Li was placed on notice that his questions were inappropriate and I accept the evidence of Mr Wilson that he was told it was in breach of company policy and discrimination laws. I also accept Mr Li’s evidence that further training was an agreed action arising and this was a form of disciplinary action.
e)PPD confirmed by the end of the meeting that Mr Li would not be participating in further interviews at that time and I find this was also a form of disciplinary action. That decision had previously been communicated in writing, and having regard to the undisputed evidence about the discussion that took place in the meeting and the further training that was required, I prefer the evidence of Mr Wilson in this regard.

It is understandable that Mr Li considered the interview conduct was resolved in that it would not of itself be subject of further disciplinary action following the 16 April 2021 meeting (beyond that which I have found, that is: being put on notice during that meeting, subject of a modification to duties in not participating in further interviews and required to complete further training). I consider this particularly so when regard is had to: the recollection of Mr Wilson that a line was drawn under that particular matter at the end of the meeting; the absence of any documented outcome following the meeting; the discussion between Mr Li and Mr Jaucot about prospects of promotion; and as the issue was not raised again for some three months as one of a number of allegations set out in the Warning Letter. However, it is simply not credible to suggest that Mr Li believed that was entirely the end of the matter, particularly given he was counselled about this behaviour and his own evidence that he understood that he was to undergo further training as a result of his conduct (regardless of whether that training occurred).

By Mr Li’s evidence given directly to the Commission regarding the allegations subject of this First Issue, I find that Mr Li did at all relevant times (and continued at the time of the hearing) to lack an appreciation of PPD’s reasonable expectations of appropriate workplace behaviour, what appropriate workplace behaviour entails and insight as to his communication style and his impact on others. That is the case notwithstanding that the evidence establishes that by the time of the job interviews and as at the meeting of 16 April 2021, Mr Li had completed regular training in PPD’s code of conduct, workplace harassment, emotional intelligence and relationship management among other things; was then counselled about his interview conduct on 16 April 2021; and has had ample opportunity to reflect in the course of these proceedings.

The Second Issue

It is not controversial that Mr Li performed well in his role and that, following the 16 April 2021 meeting, Mr Jaucot discussed opportunities for promotion with him. However the evidence does not establish that Mr Jaucot was in a position to, or in fact did, guarantee a promotion of any kind. Indeed, Mr Li applied for a promotion to the position of Trade Compliance Manager and accepted that such appointment was Ms Diaz’s decision to make.

Mr Li was ultimately unsuccessful in his application for promotion. The only reason given to him at the time was his expertise being narrowed to the ANZ region. It was not a case of another candidate having more desirable skills or experience. I accept that this reason did not resonate with Mr Li and gave him cause to suspect there was something more to the decision. According to Mr Wilson, there was more to it in that Mr Li’s inability to demonstrate “solid” interpersonal and communication skills was also taken into account in deciding not to award the promotion. Specifically, as Mr Li had demonstrated in the 16 April 2021 meeting about the First Issue, at which Ms Diaz was present. Although this reason was not put to Mr Li in conveying the outcome of his application, I find that Mr Li’s demonstrated communication skills (or flaws) were a consideration that Ms Diaz was entitled to take into account in assessing his suitability for promotion. On the evidence before the Commission, I do not identify any unfairness in her decision to refuse Mr Li’s application for promotion.

Within three days of learning of the outcome of his application, on 28 June 2021, Mr Li wrote to his global management team reporting his dissatisfaction with the decision of Ms Diaz. His language was direct and critical of Ms Diaz. He did not include Ms Diaz on that communication and I am prepared to accept that this was because he did not want to cause direct conflict with Ms Diaz.

Whether the intent was to report the issue or attempt to influence another outcome, the grievance procedure at clause 13.8 of the Handbook (incorporated in the employment contract) provides a process for bringing such concerns to the attention of senior management and/or to seek address. Mr Li did not follow the stages in the grievance procedure at 13.8 of the Handbook in sending the email of 28 June 2021 direct to the global management team and, in any event, I find that this action by Mr Li was an inappropriate and unnecessary escalation of his concern. Whatever Mr Li’s true motive in writing that email, he was suitably encouraged by one of the senior management recipients to have a direct discussion with Ms Diaz or to seek HR advice. Mr Li elected not to pursue either course at that time. Indeed, it was not until 5 August 2021 (and after receipt of the Warning Letter) that Mr Li first raised a formal grievance about matters including the alleged unfair treatment in rejecting his promotion application (addressed further below). Nonetheless I do not consider the evidence to rise so high as to establish that Mr Li was deliberately seeking to undermine the decision of Ms Diaz by the 28 June 2021 email.

The Third Issue

The evidence on which PPD sought to rely in support of the allegation subject of this Third Issue related to a meeting between Mr Li and Ms Wang, on 12 July 2021, in which Mr Li’s desire for promotion was discussed. Mr Li strongly denied the statements and behaviours that Ms Wang allegedly attributed to him in that meeting. In the absence of any record of that meeting or evidence from Ms Wang or another direct witness, I do not conclude that those statements were made in the precise terms alleged. However, Mr Li accepted that in this meeting he had refused to take on “additional responsibilities” which Ms Wang had said would assist in his achieving his goal of promotion. Ms Wang subsequently sought HR support from Mr Wilson.

On the evidence before the Commission, I find that there was some level of conflict between Mr Li and Ms Wang during their 12 July 2021 meeting which prompted Ms Wang’s request for HR support. However I am not able to conclude that Mr Li’s behaviour was so serious as to be inconsistent with PPD’s reasonable expectations including its defining principles.

The Fourth Issue

It was not disputed and the evidence supports a finding that Mr Li’s role did not initially but came to require provision of some training and mentoring support to other team members. Indeed Mr Li had done so during the course of his employment and understood this to be a requirement at the relevant times.

The April 2021 email exchange between Mr Li and Ms Wang included a clear refusal by Mr Li to train and mentor the Third Candidate if selected for the role. The Third Candidate was selected for the role. But, in response to this refusal and in writing on 14 April 2021, Ms Wang also said that Mr Li would not be required to mentor and train her. As of the 16 April 2021 meeting, there is no evidence that Ms Wang retracted this statement and directed Mr Li to perform those duties or that Mr Li’s refusal to do so was specifically raised, subject of any kind of counselling or verbal warning during that discussion. Plainly such refusal constituted a refusal to perform an essential requirement of his job. However the evidence does not establish that this specific example was raised in the subsequent 16 April 2021 meeting or the Warning Letter of 19 July 2021 or that there was any disciplinary action at the time.

Further to the above findings, there was evidence of a discussion between Ms Wang and Mr Li on 12 July 2021 about the need to perform “additional responsibilities”, in the context of Mr Li’s desire for promotion. The alleged refusal to take on “additional responsibilities” was also referenced in the Warning Letter. Certainly Mr Li took issue with this part of the Warning Letter in his 5 August 2021 complaint, in which he alleged that taking on more responsibilities was a tactic by Ms Wang to avoid promoting him. These references to “additional responsibilities” were not specific. On the evidence Mr Li has plainly refused to perform additional responsibilities but it is not established that this was specifically a refusal to train and mentor others and the Warning Letter does not specifically refer to training and mentoring.

The requirement to train and mentor team members was canvassed in the 1 September 2021 meeting. On the evidence, this was the first time the issue was raised in a disciplinary context. Mr Wilson’s evidence was that this meeting commenced with Mr Li declaring that “[you] don’t know my job”, also said it was not his job to mentor and train new staff and was then rude to Ms Wang when she pointed to the requirement in his position description. Mr Li denied having said those words in this meeting but also said that the line manager is primarily responsible to train and mentor and suggested he was asked to perform duties above and beyond the requirement of his role and given an excessive workload. There is no contemporaneous documentary record or note of that meeting in evidence. I prefer the evidence of Mr Wilson in this regard and find Mr Li’s conduct in the 1 September 2021 meeting a further example of behaviour inconsistent with PPD’s reasonable expectations of professional, courteous and respectful behaviour towards other employees; and the statement that Mr Li did not consider it his job to mentor and train new staff to be a strong indication that he would refuse (if not a pre-emptive refusal) to comply with such reasonable and lawful direction, being a requirement of his role, in the future.

For completeness, there is nothing before the Commission to suggest that Ms Wang’s guidance to take on “additional responsibilities” was unreasonable or unfair. In so finding, I do not consider the email evidence about sharing workloads to establish that Mr Li was being subjected to unreasonable or unfair demands in this regard but rather demonstrates examples of past occasions when Mr Li had sought to work with or refer work to others.

Counselling & disciplinary process

Informal disciplinary action

I have earlier found that the First Issue was initially raised informally by Mr Li’s line manager in an email and then, on account of Mr Li’s escalation, was discussed and talked through in the meeting of 16 April 2021 - which resulted in Mr Li being placed on notice that Mr Li was placed on notice that his questions were inappropriate, in breach of company policy and discrimination laws. I found that this also resulted in a requirement to complete further training and modification of duties by not participating in job interviews for the foreseeable future.

I find that such notification and additional disciplinary outcomes constitute informal disciplinary action and counselling about the standard of behaviour required of Mr Li to succeed in his role. To the extent that it applies to PPD, there was nothing inconsistent with PPD’s disciplinary procedure in this regard.

The Warning Letter

The first formal disciplinary step flowed from Mr Li’s reaction to his unsuccessful application for promotion. Mr Wilson, prompted by Ms Wang’s allegations about Mr Li’s behaviour in the 12 July 2021 meeting, consulted with legal counsel and human resources and on 16 July 2021 decided to place Mr Li on a PIP. I accept that the decision to issue a first warning letter and place Mr Li on a PIP (conveyed to Mr Li in the Warning Letter of 19 July 2021) was to address what Mr Wilson had identified as a pattern of conduct or behaviour.

The Warning Letter was couriered to Mr Li on 20 July 2021 (his first day of annual leave). I am prepared to accept Mr Wilson’s evidence that the intention was to afford Mr Li an opportunity to reflect. Nonetheless I find that PPD’s delay was not acceptable or reasonably explained by a “last minute” leave application – having made the decision to take this action on 16 July 2021, Mr Wilson ought to have done so before Mr Li’s commenced on 19 July 2021.

The Warning Letter reads, on its face, as though the allegation subject of the First Issue was previously subject of a prior warning to the extent that it summarises the outcome of the 16 April 2021 meeting and that Mr Li was “put on notice at this meeting that this behaviour did not align with our Defining Principles in Action (in particular “We do the right thing”) or our Code of Conduct..”. By this Warning Letter, Mr Li was for the first time informed of the allegations referred to in this decision as the Second and Third Issues. The conduct subject of the Second Issue was said to be not aligned to PPD’s defining principles and unprofessional. The issue of the first written warning and decision to place Mr Li on a PIP were expressed as in consideration of “the above situations”. Whilst the drafting is not perfect and might be read as a warning issued in consideration of the First Issue for which Mr Li had already been subject of disciplinary action, as well as the Second and Third Issues, I prefer the view and find that the intention was to confirm that the first warning was issued following a prior warning for behaviour similarly said to be inconsistent with PPD’s defining principles. As much is consistent with PPD’s disciplinary procedure and I find accordingly.

Consistent with Mr Wilson’s concession in evidence, which I accept, the decision to issue a first written warning was made following some investigation and consideration of, but prior to discussion with Mr Li about or opportunity for him to respond to, the allegations subject of the Second and Third Issues. The Warning Letter invited Mr Li to respond in writing and also confirmed there would be a meeting to discuss the PIP. Whilst strictly inviting an opportunity to respond, I find PPD’s process was flawed to the extent that Mr Li’s opportunity to put forward his case about the allegations subject of the Second and Third Issues was only after the formal written warning had issued. To the extent that it applied to PPD, this is inconsistent with PPD’s disciplinary procedure which required an investigation where facts are not clear and a disciplinary interview before disciplinary action such as a written warning.

Mr Li’s formal grievance

Just prior to returning from leave, on 5 August 2021, Mr Li raised a formal grievance. The subject matter of the grievance plainly addressed or responded to the allegations in the Warning Letter, disputed those allegations and alleged that Mr Wilson and Ms Wang had engaged in bullying and retaliation. It was sent to PPD’s “corporate compliance” team.

A discussion about the PIP process was initially scheduled on 11 August 2021 for 13 August 2021 and was convened but ultimately deferred pending the outcome of Mr Li’s formal grievance. I accept that Mr Wilson and Ms Wang were at that time unaware that Mr Li had lodged a grievance on 5 August 2021 (that is, almost one week after the grievance was lodged and even after Mr Li had queried with “corporate compliance” his view that it should not go ahead). I find that Mr Li was inappropriately directed to attend the mid-year check in meeting despite his unresolved allegation that the very individuals that were conducting that meeting were engaging in bullying and retaliation towards him, a further flaw in PPD’s process which did not assist in relieving Mr Li’s concern about unfair treatment.

The grievance outcome was then confirmed to Mr Li swiftly thereafter, on 13 August 2021, in terms which I find to be brief and casual but nonetheless to the effect that the allegations were unsubstantiated. There is no investigation report or evidence as to the basis on which PPD arrived at that conclusion and accordingly I am unable to make any finding as to the robustness of that process or its conclusion. It is however apparent on the evidence before the Commission that, of the concerns raised in Mr Li’s grievance, only one had some merit regarding the inclusion of the First Issue to the extent he read this as a reason for the warning in the Warning Letter (rather than a reference to a prior warning, as I have found above). In any event, I find the content of Mr Li’s grievance also gave rise to a new concern – in that, by revising his perspective on the allegations subject of the First Issue, Mr Li plainly sought to defend his questions of the First Candidate (which I have found to be discriminatory) by stating in the grievance that he was protecting the company and alleging this was agreed. I find that by this communication Mr Li demonstrated to PPD, in writing, that he did not appreciate the issue or understand PPD’s reasonable expectations in this regard and the counselling in the 16 April 2021 meeting had not resolved the matter. Notwithstanding that PPD had already decided a form of disciplinary action for the interview conduct, in light of Mr Li’s ongoing lack of appreciation and awareness of the standard of behaviour expected, I consider that it was reasonable to seek to address this with Mr Li via a plan for improvement as PPD could not be confident that this would not happen again.

The PIP process

It was then more than two weeks before a meeting was convened on 1 September 2021 with Mr Li, Mr Wilson and Ms Wang, at which Mr Li’s regular mid-year check in and the PIP were discussed.

As of the 1 September 2021 meeting, the pattern of conduct of concern was said to include the allegations subject of the First, Second, Third and Fourth Issues (on the evidence before the Commission the Fourth Issue was first raised during the course of this meeting) – the substance of which I have made findings about above. There is no contemporaneous record or note of that meeting. However the evidence establishes that PPD proposed to work with Mr Li through:

a)A pre-prepared document which had been emailed to Mr Li in advance and focussed on areas of behavioural improvement but which also, as Mr Wilson conceded, included “select work improvement items”;
b)Over a three month period, in which Mr Li would have the opportunity to work on and demonstrate behavioural improvements.

The 1 September 2021 meeting extended for a long time and I find on the evidence only ended when Mr Li made clear that he refused to participate in the PIP. Mr Li asked the Commission to find that the PIP was “invalid”. There is nothing before the Commission to suggest that the inclusion of proposed work improvement items was justified based on prior discussions with Mr Li and indeed all the evidence suggested PPD took no issue with his performance – Mr Li might rightly have protested the inclusion of those “select work improvement items”. However there is no suggestion in the evidence that Mr Li engaged with the concept of discussing the focus of the document – the proposed areas of behavioural improvement - or provided feedback or suggested amendments that he would be prepared to adopt. Indeed there is no evidence that Mr Li was prepared to engage in any discussion about his behaviour or was willing to accept that any improvements may be justified and his refusal to do this remained as at the date of the hearing.

It is apparent that the PIP which Mr Li was directed to work through was not directed at his performance, and, to this end, the term “PIP” is somewhat inapt (perhaps even a mischaracterisation) and the performance improvement procedure in the Handbook strictly did not apply. Yet the evidence establishes that it was made plain to Mr Li that the process was directed at behavioural improvements. An inspection of the proposed PIP document supports such finding and that the areas for behavioural improvement proposed therein were aligned to the unacceptable behaviours that had been raised with Mr Li clearly, in writing, in the Warning Letter (which was in Mr Li’s possession and clearly outlined behavioural issues warranting improvement, even though it was issued before interviewing Mr Li and therefore was not strictly issued in accordance with the disciplinary procedure). Further, the Termination Letter, on its face, clearly states that the reason for termination was Mr Li’s refusal to participate in and/or work through a plan for behavioural improvement.

I accept the evidence that termination as a possible consequence of refusing to engage in the proposed PIP process was mentioned during the 1 September 2021 meeting. There is no evidence that this was confirmed in writing after the 1 September 2021 meeting. The 1 September 2021 meeting effectively descended into a disciplinary discussion or interview as a result of Mr Li’s refusal to engage in the PIP process. This would perhaps explain why there was no written statement issued within five days as the disciplinary procedure in the Handbook provides – to the extent that it applied to PPD.

Over the following days, Mr Wilson proceeded to take advice and put in place steps to manage Mr Li’s departure. That Mr Li learned of his termination, on 3 September 2021, via a colleague who forwarded him an email about arrangements following his departure is deplorable. Notwithstanding that Mr Wilson considered Mr Li’s position about the PIP would not change in a further meeting and was ultimately proved correct about that, it is plain on the evidence and I find that the final meeting on 3 September 2021 was not a legitimate opportunity for Mr Li to respond, to show cause or to change the course of events because Mr Wilson had by then already decided that Mr Li’s employment was to be terminated, prepared a draft termination letter and notified the business of handover arrangements. I find that, in doing so, Mr Wilson acted contrary to the advice of Mr Luo but nonetheless acted on behalf of PPD. To the extent that it applied, PPD’s disciplinary procedure allowed for progression through the disciplinary stages to be “omitted” at management discretion, for the “People Manager” to decide the appropriate form of disciplinary action and for “dismissal” as an appropriate outcome for instances where repeated warnings have failed to result in the required improvements. Beyond the failure to allow Mr Li a legitimate opportunity to put his case, I identify no particular failure in this regard.

The final Termination Letter issued on the evening of 6 September 2021. Mr Wilson’s reason for his delay in provision of the Termination Letter (being busy with other things) was not excusable or best practice albeit not inconsistent with any obligation on PPD..

Other matters

PPD’s size and Mr Li’s tenure, past performance and salary are not in contest and I find accordingly.

Mr Li declined the opportunities to provide evidence of his attempts to mitigate his loss and alleged job searches (per the Commission’s directions and at the hearing) and ultimately confirmed he could not provide such evidence. In that context, the suggestion that Mr Li had applied for around thirty jobs is simply not a credible or safe basis upon which to proceed. Mr Li did not elaborate on his claim, and there was no evidence to support a finding, that the “pandemic period” provided any actual impediment to Mr Li in this regard. There is simply no credible evidence of attempts to mitigate his loss and I find accordingly.

Consideration of section 387(a) to (h)

Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Mr Li’s dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.

Section 387(a) - Valid reason

It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. A valid reason is one that is “sound, defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced”.[97]

The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[98] The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees), in the sense that it was both a good reason and a substantiated reason.

The employer bears the evidentiary onus of proving that the conduct on which it relies took place. A pattern of past conduct may not form a valid reason for dismissal if the employee was not properly warned or disciplined in relation to that conduct.[99] However, that same pattern of conduct or behaviour may be considered relevant to an overall assessment of whether the dismissal was “harsh, unjust or unreasonable”.[100]

The Act requires consideration of whether there was “a” valid reason for dismissal. Where several reasons for termination are invoked, it is not necessarily the case that all must be substantiated.[101] It is also well established that a valid reason need not necessarily be the one relied upon by the employer.[102]

The reason for Mr Li’s termination was his unwillingness to participate in and/or work on a plan focusing on behavioural improvements. PPD’s decision to place Mr Li on an improvement plan arose from the allegations of Mr Li’s pattern of unacceptable behaviour described as the First, Second, Third and Fourth Issues above. Having examined this reason and each of the related issues to determine whether I am persuaded that Mr Li engaged in some or all of the relevant conduct, I now turn to whether this constitutes a valid reason.

I have found various instances wherein Mr Li’s conduct was inconsistent with PPD’s reasonable expectations of Mr Li in his role and constituted a refusal to perform an essential requirement of his role – and that Mr Li was aware of and understood the expectation or requirement in each case. That conduct subject of the Second, Third and Fourth Issues which I have found to occur (when considered separately or together) did not of itself justify dismissal but certainly warranted a formal process focused on the necessary behavioural improvements in order for Mr Li to succeed and continue in his role. Further, even after being subject of counselling and disciplinary action for the First Issue, Mr Li wrote to PPD in terms which refleted that he still did not appreciate that his conduct subject of the First Issue was inappropriate and inconsistent with PPD’s reasonable expectations and requirements of him in his role – I consider this, at the very least, warranted a focused behavioural improvement process if not stronger disciplinary action. Accordingly, I am satisfied that PPD’s direction to participate in a behavioural improvement plan was a reasonable and lawful direction.

In the meeting of 1 September 2021, I have found that Mr Li did not engage in a constructive discussion with his management about a formal plan for improving these behaviours but rather expressly refused to participate in such discussion and refused to work through the pre-prepared, proposed improvement plan.

I have not found Mr Li’s bald allegations of bullying and retaliation to be made out on the evidence before the Commission and am not satisfied that Mr Li’s claims in this regard justify his conduct in refusing to participate in an improvement plan.

I do not consider the identified flaws in PPD’s approach to invalidate the direction to participate in an improvement plan but those failings are relevant to s.387(h) and are considered further below.

Having regard to all of the circumstances, Mr Li’s conduct in refusing to participate in and/or work on a plan for behavioural improvement of itself constituted a valid reason for his dismissal which amounted to a failure to follow a reasonable and lawful direction.

For completeness, arising from my findings above, it is unnecessary to have regard to the conduct relevant to the allegation described as the First Issue, which I have found to be established, to the extent that Mr Li was informally disciplined for this as determined in the 16 April 2021 meeting. That conduct might have warranted stronger disciplinary action at the time. However, it occurred at least five months prior to the dismissal and involved relatively proximate counselling and some disciplinary consequences. The relevance of this matter to a pattern of behaviour and the proportionality of the decision to dismiss Mr Li is considered further at s.387(h).

In conclusion, for the reasons given, I am satisfied on the evidence adduced that there was a sound, defensible and well-founded reason for Mr Li’s dismissal related to his refusal to to participate in and/or work on a plan for behavioural improvement. Accordingly, there was a valid reason for Mr Li’s dismissal within the meaning of s.387(a) of the Act.

Section 387(b) - Was Mr Li notified of the valid reason?

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,[103] and in explicit[104] and plain and clear terms.[105]

The Warning Letter notified Mr Li that if his behaviours did not improve during the course of the PIP then his employment may be terminated. There is a fine but important nuance to this language. I do not consider this Warning Letter to notify Mr Li of what I have found to be the valid reason for his dismissal – that a refusal to participate in a plan for behavioural improvement (as distinct from the proposed PIP which included some non-behavioural areas for improvement), and therefore to follow a reasonable and lawful direction would (or even would possibly), result in termination of his employment.

With regard to the above findings, the 1 September 2021 meeting was lengthy and ultimately descended such that the possibility of termination as a consequence of refusal to participate in the PIP process or any improvement plan was mentioned only when Mr Li clearly stated his refusal to participate in and/or work through the plan. In the absence of more, for example a record of meeting or written notification or show cause letter, I am not able to conclude that such notice was given in explicit and plain and clear terms in that meeting.

By the 3 September 2021 meeting, I accept that Mr Li was notified. However I have found that, by this time, the decision to terminate Mr Li had already been made and was being effected.

In all the circumstances, I find that the Applicant was not sufficiently notified of the reason for his dismissal.

Section 387(c) – Was Mr Li given an opportunity to respond to any reason related to his capacity or conduct?

An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[106]

The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.[107] 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.[108] Simply “going through the motions” of giving an employee an opportunity to respond when, in substance, a firm decision to terminate has already been made may not constitute an opportunity to defend.[109]

The mere fact that the respondent has failed to provide the applicant with an opportunity to respond does not automatically render the dismissal harsh, unjust or unreasonable. It is not the case that a person must be provided with an opportunity to respond to any reason related to conduct or performance. Rather, s.387(c) is a consideration to which the Commission must have regard in its analysis of whether a termination is harsh, unjust or unreasonable.[110]

I have earlier found that the valid reason for dismissal was Mr Li’s refusal to participate in and/or work through a plan for behavioural improvement. That refusal was first communicated to PPD in the meeting of 1 September 2021. I do not consider an opportunity to respond to the first mention of the valid reason during the course of that meeting constitutes sufficient opportunity within contemplation of this provision.

With regard to the above findings, I am satisfied that the 3 September 2021 meeting was a classic case of an employer “going through the motions” of giving an employee an opportunity to respond when, in substance, a firm decision to terminate had already been made. Indeed, Mr Li’s colleagues had already been informed of his pending departure and Mr Wilson had put in place steps to manage the transition from an external (client) perspective.

For completeness, to the extent that the various conduct-related allegations comprising what PPD described as the First, Second, Third and Fourth Issues may be said to be indirect reason(s) for the dismissal, the above findings establish that by the end of the 1 September 2021 meeting Mr Li had been afforded an opportunity to respond to each. To the extent that I have found additional conduct-related issues, that were not put to Mr Li as part of the First, Second, Third and Fourth Issues, plainly there was no opportunity to respond afforded prior to the dismissal. I consider other issues with PPD’s approach further at s.387(h) below.

Accordingly, I do not consider that Mr Li was given opportunity to respond to the conduct which I have found to constitute a valid reason for his dismissal for the purposes of s.387(c).

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

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.

There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”[111]

In all of the circumstances, and having regard to my findings above, I find that there was no unreasonable refusal to allow Mr Li to have a support person present at the discussions relating to the dismissal on 3 September 2021 and, to the extent those discussions also related to the dismissal, the discussions on 1 September 2021.

Section 387(e) - If the dismissal related to unsatisfactory performance, was Mr Li warned of the unsatisfactory performance before the dismissal?

It was the conduct of the employee, rather than his performance, that was relied on by PPD as a reason for dismissal. In the circumstances, this is a neutral consideration.

Section 387(f) and (g) - The degree to which the size of PPD’s enterprise, and the absence of dedicated human resources management specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal?

Having regard to the matters above, I find that neither the size of the enterprise and the absence of in-house human resources expertise was likely to impact on the procedures followed in effecting Mr Li’s dismissal.

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

Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

Mr Li’s period of service (some three years and four months) and record of good performance during this period of service are relevant matters to which I have had regard.

I have earlier found that PPD’s approach to managing these issues was in some respects flawed or at least not best practice. At times, those flaws constituted a failure to follow its own disciplinary procedure. Mr Li was justified in querying parts of PPD’s process but plainly did not do so in a manner that was appropriate and rather inflamed the concerns about his behaviour. In my view, the problems earlier identified with PPD’s approach did not invalidate the reasonable requirement that Mr Li participate in a process to ensure behavioural improvement to the standard required in order to continue and succeed in his role. However those problems with PPD’s approach did not instill any confidence in Mr Li and gave rise to suspicions which were ultimately unfounded but nonetheless contributed to his defiant protestation and lack of cooperation. These matters, including but not limited to the means by which Mr Li learned of his termination (that I have earlier concluded was deplorable), are relevant matters to which I have had regard and weigh in favour of a finding that the dismissal was harsh and unreasonable.

In April 2021 PPD decided not to implement stronger disciplinary measures or dismiss Mr Li in relation to the allegations subject of the First Issue, which I have found to occur. I have not relied on this conduct in considering the reasonableness of the decision to place Mr Li on an improvement plan or to substantiate the valid reason for his dismissal. However, in the circumstances of this case, it is relevant to an overall assessment of whether the dismissal was harsh, unjust or unreasonable. In particular, I find the following to weigh against a finding of harshness: Mr Li was on notice about the conduct subject of each of the First, Second and Third Issues and showed little prospect he would alter his pattern of behaviour. He had no insight into the impact of his behaviour on others, particularly the interview candidates and completely lacked an appreciation of appropriate behaviour in conducting such interviews or engaging with others. Further, his attempted justification of these behaviours and complete absence of contrition. These factors weigh against a finding that the dismissal is unfair.

Conclusion

Taking all of the factors into account, I am satisfied that there was a valid reason for Mr Li’s dismissal. This weighs against a finding that the dismissal was unfair. Mr Li was however not adequately notified of the valid reason, nor given a reasonable opportunity to respond. These factors weigh in favour of Mr Li. There was no refusal to allow a support person, and this is a neutral consideration. The factors at ss.387(e), (f) and (g) are neutral. Of the factors considered relevant at s.387(h), the complete lack of insight and contrition, notwithstanding the counselling and informal warning given during his employment weigh against Mr Li and the other matters weigh in his favour. I do not consider the termination to be unjust particularly given the valid reason for the dismissal. However, the identified failures in PPD’s approach, even taking into account all other factors, in my view render the dismissal as harsh and unreasonable.

Having considered each of the matters specified in s.387 of the Act, I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the Act.

PART C: Remedy

Having found that Mr Li was protected from unfair dismissal, and that his dismissal was harsh and unreasonable, it is necessary to consider what, if any, remedy should be granted.

Under s.390(3) of the Act, I must not order the payment of compensation to the Applicant unless:

(a)I am satisfied that reinstatement of the Applicant is inappropriate; and
(b)I consider an order for payment of compensation is appropriate in all the circumstances of the case.

Is reinstatement inappropriate?

Mr Li seeks reinstatement – not to the position he held immediately prior to the dismissal but to another, promoted role with a different manager. In evidence, he refused to acknowledge that the relationship with PPD was broken and maintained he deserved a promotion after almost three and a half years and was treated unfairly.[112] However, reinstatement is strenuously opposed by PPD. PPD submits that Mr Li’s incapacity and unwillingness to recognise and reflect on his own behaviour renders reinstatement inappropriate.

It is apparent that there has been a breakdown in the relationship between Mr Li and PPD. Indeed, the evidence establishes that Mr Li is largely responsible for this breakdown and shows little to no insight into his own behaviour. Mr Li has proven himself unwilling to follow the reasonable and lawful direction of PPD (to work on the necessary behavioural improvements) and indeed continued to insist, before the Commission, that he would not do so. In my view, PPD is justified in lacking the necessary trust and confidence that Mr Li would behave appropriately and consistent with its reasonable expectations in the future. Reinstatement can be inappropriate where there has been a loss of trust and confidence such that it would not be feasible to re-establish the employment relationship.[113] I am satisfied that in this matter, there is a loss of trust and confidence and the lack of insight of Mr Li means that re-establishing the relationship is not feasible.

Having regard to the matters referred to above, I consider that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all of the circumstances.

Compensation

I understood Mr Li to seek that the Commission order the maximum amount of compensation. PPD contended that, if any compensation were to be ordered, it should be for a short period only and reduced significantly because Mr Li was not willing or unable to address his behaviour and did not attempt to mitigate his loss. PPD nonetheless acknowledged that a period of three months may be an appropriate starting point given that was to be the duration of its PIP process had Mr Li agreed to participate.[114]

Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”.[115]

Section 390(3)(b) of the Act provides the Commission may only issue an order for compensation if it is appropriate in all the circumstances. A compensation remedy is designed to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably attributable to the unfair dismissal within the bounds of the statutory cap on compensation that is to be applied.[116] Having regard to all the circumstances of the case, including the fact that Mr Li has suffered financial loss as a result of his unfair dismissal, I consider that an order for payment of compensation to him is appropriate.

It is necessary therefore for me to assess the amount of compensation that should be ordered to be paid to Mr Li. In assessing compensation, I am required by s.392(2) of the Act to take into account all the circumstances of the case including the specific matters identified in paragraphs (a) to (g) of this subsection.

In undertaking this task, I shall use the established methodology for assessing compensation in unfair dismissal cases which was set out in Sprigg v Paul Licensed Festival Supermarket and applied and elaborated upon in the context of the current Act by Full Benches of the Commission in a number of cases.[117] The approach to calculating compensation in accordance with these authorities is as follows:

Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.

Step 5: Apply the legislative cap on compensation.

I consider all the circumstances of the case below.

Section 392(2)(c) - Remuneration Mr Li would have received, or would have been likely to receive, if he had not been dismissed

Like all calculations of damages or compensation, there is an element of speculation in determining an employee’s anticipated period of employment because the task involves an assessment of what would have been likely to happen in the future had the employee not been dismissed.

On the evidence, I accept that Mr Li intended to remain working for PPD for the foreseeable future. Notwithstanding his good (and unblemished record of) performance over more than three years in the employment, having regard to the evidence of Mr Li’s conduct and lack of appreciation or acceptance which continued as at the time of the hearing, I consider it unlikely that the employment relationship would have continued for a lengthy period of time or indeed beyond the three month period that was proposed for demonstration of the necessary behavioural improvement subject to a plan.

I find, in all the circumstances that, but for the termination on 6 September 2021, Mr Li would have remained in employment with PPD for a period of three months (until 6 December 2021). In so finding, I have had regard to the entire circumstances including the basis on which the termination was found to be unfair.

It is, of course, possible that Mr Li could have been employed by PPD for a shorter or longer period than three months had he not been dismissed on 6 September 2021. In particular, he may have resigned within three months. I have weighed the risks and factors that might have resulted in a shorter or longer period of employment in evaluating an anticipated period of employment of three months. Because I have already weighed those matters in determining the three month period of anticipated employment, I will not adjust the discount for contingencies on the basis of the risk of a shorter or longer period of employment than the three months.

In calculating the remuneration that Mr Li would have earned had he not been dismissed, it is necessary to identify what his rate of payment would have been. The unchallenged evidence was that, immediately prior to the dismissal, Mr Li earned a gross weekly wage of $1,496.70 per week plus superannuation. However, the hourly rate used in the Termination Letter was slightly higher at $40.45466 gross per hour which, on the contracted 37 hours per week, results in a gross weekly wage of $1,496.82 per week plus superannuation. For present purposes I have used the slightly higher figure of $1,496.82 per week plus superannuation.

Mr Li would therefore have received $17,961.84 gross (less any applicable taxation) plus superannuation in the three months following 6 September 2021, had he not been dismissed at that time ($1,496.82 x 12 weeks = $17,961.84).

Section 392(2)(e)-(f) - Remuneration earned and income reasonably likely to be earned between the making of the order for compensation and the actual compensation

Accepting that Mr Li earned no income in the period after his dismissal, and he was unsuccessful in securing employment, there is no need to deduct any further amount from the compensation amount.

Accordingly, no deduction for earnings or future earnings is made under ss.392(2)(e) and (f).

Section 392(2)(a) - Viability

There is no evidence that any particular amount of compensation would affect the viability of PPD’s business.

No adjustment will be made on this account.

Section 392(2)(b) - Length of service

Mr Li’s total period of service (around three years and four months) is not a circumstance that warrants any diminution of the amount of compensation that might otherwise be determined as justified.

Section 392(2)(d) - Mitigation efforts

PPD submitted that Mr Li has failed to take reasonable steps to mitigate his loss and that consequently any compensation must be substantially reduced by a figure of 30%.

Notwithstanding the substantial opportunity to do so, Mr Li did not file any evidence to support mitigation efforts and I have earlier rejected his oral evidence in this regard as lacking in credit including with regard to his admission that it could not be substantiated with documentary records.

Accordingly, I do not consider that Mr Li has taken reasonable steps to mitigate the loss he suffered because of his dismissal. Whilst it is conceivable that there was some impact arising, Mr Li’s contention that the pandemic period presented difficulties in this regard was not made out or elaborated on in any cogent way. I consider that greater efforts on Mr Li’s behalf may well have led to alternative employment being secured. I consider that a deduction of 20% is appropriate in the present circumstances, being an amount of $3,592.37. This results in a subtotal of $14,369.47 gross plus applicable superannuation.

Section 392(2)(g) - Any other relevant matter

It is necessary to consider whether to discount the remaining amount for “contingencies”. This step is a means of taking into account the possibility that the occurrence of contingencies to which the Applicant was subject might have brought about some change in earning capacity or earnings. Positive considerations which might have resulted in advancement and increased earnings are also taken into account.

The discount for contingencies should only be applied in respect to an “anticipated period of employment” that is not actually known, that is a period that is prospective to the date of the decision.

Because I am looking in this matter at an anticipated period of employment that has already passed, there is no uncertainty in this respect.

Save for the matters referred to in this decision, there are no other matters which I consider relevant to the task of determining an amount for the purposes of an order under s.392(1) of the Act.

I have considered the impact of taxation, but I prefer to determine compensation as a gross amount and leave taxation for determination.

For completeness, the original application sought other remedies being: payment of notice and/or other accrued entitlements on termination - which was understood to have been resolved and was ultimately not pressed; an apology email - which is beyond jurisdiction; and claims concerning underpayment – about which I make no finding and which are properly to be pursued in a court of competent jurisdiction.[118]

Section 392(3) - Misconduct

Section 392(3) of the Act states that if the Commission is satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person, the Commission must reduce the amount it would otherwise order under s.392(1) by an appropriate amount on account of the misconduct. I have found that Mr Li did engage in misconduct in a manner inconsistent with his contract of employment and that this contributed to PPD’s decision to dismiss him, although I accept that that conduct is at the lower end of the spectrum of seriousness. In the circumstances, I consider that a reduction of 10% is appropriate. This is a deduction of $1,436.95. This results in a subtotal of $12,932.52 gross plus application superannuation.

Section 392(4) - Shock, distress or humiliation, or other analogous hurt

I note that in accordance with s.392(4) of the Act, the amount of compensation calculated does not include a component for shock, humiliation or distress.

Section 392(5)-(6) - Compensation cap

The amount of $12,932.52 gross plus applicable superannuation is less than half the amount of the high income threshold immediately before the dismissal. It is also less than the total amount of remuneration to which Mr Li was entitled in his employment with the Respondent during the twenty-six weeks immediately before his dismissal. In those circumstances, I am satisfied that there is no basis to reduce the amount of $12,932.52 gross plus applicable superannuation by reason of s.392(5) of the Act.

Section 393 - Instalments

No application was made by PPD for any amount of compensation awarded to be paid in the form of instalments.

Conclusion on compensation

In my view, the application of the Sprigg formula does not, in this case, yield an amount that is clearly excessive or clearly inadequate. Accordingly, there is no basis for me to reassess the assumptions made in reaching the amount of $12,932.52 gross plus applicable superannuation.[119]

For the reasons I have given, I am satisfied that a remedy of compensation in the sum of $12,932.52 gross plus applicable superannuation in favour of Mr Li is appropriate in the circumstances of this case. I will issue an order [PR739293] to that effect.

DEPUTY PRESIDENT

Appearances:

Mr N Li on his own behalf.
Mr M Champion of Counsel for the Respondent.

Hearing details:

2021.
Melbourne (By Video).
6 December.

Annexure A
Dear Ning,

Termination of your employment

I am writing to you about the termination of your employment with PPD Australia Pty Ltd.

On 19 Jul 2021, you were issued a warning letter, advising you that your recent behaviors shown by yourself were not acceptable of a PPD employee. Specifically, the warning letter related to the below instances:

1.   Discriminatory questions asked at 3 (three) separate interviews solely conducted by yourself with female candidates, pertaining to their intentions towards getting pregnant.
2.   Attempt to undermine Adriana Diaz’s decision in relation to your unsuccessful application to the Trade Compliance Manager.
3.   Disrespectful communication with your line manager.

In that letter, you were informed that a Performance Improvement Plan (PIP), focusing on behavioral improvements, would be commenced upon your return from annual leave in mid-Aug.

At the meeting held on 1 Sept 2021 to discuss the PIP, you declared that you would not participate in the PIP process.

As you are unwilling to participate in the PIP process, this leaves us no choice but to terminate your employment for the following reasons:

Unwillingness to work with us to work through and improve on the areas identified by your Line Manager for improvement.
Continued behavioral issues shown that don’t align with our Defining Principles in Action, specifically your insubordination and refusal to follow directions given to you by your line manager & disrespectful communication style with your line manager.
Refusal to perform duties as listed under the job description for Sr Import/Export Coordinator, specifically regarding mentoring new staff members.

Your employment will end immediately. Based on your length of service, your notice period is one month. You will be paid in lieu of working your notice period.

You will also be paid your accrued entitlements and any outstanding pay, up to and including your last day of employment.

*Item*	*Hours*	**Amount ($40.45466 per hour)***
1 - 6 Sept (4 days)	29.6	$ 1,197.46
Notice in lieu (1 month: 7 Sept – 7 Oct)	160.33	$ 6,486.10
Annual Leave (36 days)	266.4	$ 10,777.12
*Gross Total*	$ 18,460.68
*Approx. Net*	$ 12,224.68

Below is overview of your annual leave calculation:

Figures listed below in days
*Accrual 1 Jan – 7 Oct 2021*	*Carry Over Balance from 2020*	*Total Entitlement*	*Absences* *2021*	*Accrual Balance*
18.5	34.5	53	-17	36

The 17 days of absences were for 11 & 12 Feb 2021, and 19 Jul – 6 Aug 2021.

Returning your PPD Equipment:

a.Our Facilities Assistant, Kay Teo, will book a courier delivery to your home address. Several boxes and bubble wrap will be provided to you, to return PPD issued IT equipment.
b.Please reply to my email confirming your postal address and mobile phone number, so that the courier delivery can be booked.
c.NOTE: if the equipment is not returned, you will owe PPD for the replacement cost for that equipment. Failure to submit the required payment will result in the debt being turned over to a debt collections agency.

You may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them you can call 13 13 94 or visit their website at
termination payments may give rise to waiting periods for any applicable Centrelink payments. If you need to lodge a claim for payment you should contact Centrelink immediately to find out if there is a waiting period.

Yours sincerely,

Matthew Wilson

[1] Exhibits A1, A2, A3 and A4.

[2] Exhibits R1 and R2.

[3] Exhibit R1 at 6.

[4] Mr Li on Transcript at PN183 and PN201.

[5] Exhibit R1 at 9.

[6] Exhibit A2 at NL-1.

[7] Mr Li on Transcript at PN221-237.

[8] Exhibit R1 at 10 and MW-1.

[9] Extracts of the January 2016 version are at Exhibit A4, NL-7; see also Mr Li on Transcript at PN227.

[10] Mr Li on Transcript at PN267-272..

[11] Exhibit R1 at 12 and MW-3.

[12] Mr Li on Transcript at PN235-237.

[13] Exhibit R1 at MW-2.

[14] Mr Li on Transcript at PN199.

[15] Exhibit A4 at NL-1; see also Mr Li on Transcript at PN186-220.

[16] Mr Li on Transcript at PN288.

[17] Exhibit R1 at MW-8; see also Mr Li on Transcript at PN243-260.

[18] Exhibit A4 at NL-18.

[19] Mr Li on Transcript at PN572-573.

[20] Mr Li on Transcript at PN290, 296-297.

[21] Exhibit R1 at MW-4.

[22] Exhibit R1 at MW-5.

[23] Ibid.

[24] Ibid.

[25] Exhibit R1 at 18.

[26] Exhibit R1 at 26-27.

[27] Exhibit R1 at 28.

[28] Exhibit R1 at 29-30.

[29] Exhibit R1 at 31.

[30] For example, see Mr Li on Transcript at PN315-316; PN323; PN409.

[31] Mr Li on Transcript at PN309-310. He denied asking such questions of the other two candidates.

[32] Mr Li on Transcript at PN317-318.

[33] Mr Li on Transcript at PN319-320.

[34] Mr Li on Transcript at PN329-337.

[35] Mr Li on Transcript at PN343.

[36] Exhibit R1 at 33.

[37] Mr Li on Transcript at PN415; Mr Wilson on Transcript at PN657 and 695.

[38] Mr Li on Transcript at PN414-415.

[39] Mr Wilson on Transcript at PN717.

[40] Exhibit R1 at MW-9.

[41] Exhibit A4 at NL-8.

[42] Mr Li on Transcript at PN473.

[43] Exhibit A4 at NL-9.

[44] Ibid.

[45] Mr Li on Transcript at PN461.

[46] Exhibit R1 at MW-7.

[47] Mr Li on Transcript at PN458-466.

[48] Exhibit R1 at MW-9.

[49] Mr Li on Transcript at PN471-474, 477, 480.

[50] Exhibit R1 at 42.

[51] Mr Li on Transcript at PN475 and 482.

[52] Exhibit R1 at MW-9.

[53] Exhibit R1 at MW-6.

[54] Ibid.

[55] Exhibit R1 at 34; Mr Li on Transcript at PN359-360.

[56] Mr Li on Transcript at PN163.

[57] Mr Wilson on Transcript at PN721.

[58] Exhibit R1 at 62.

[59] Mr Li on Transcript at PN545-548, 560; he also said he had trained the Third (successful) Candidate at PN569.

[60] Exhibit R1 at 55; Exhibit R2 at 14.

[61] Exhibit R1 at 50; Mr Li on Transcript at PN515.

[62] Mr Wilson on Transcript at PN673-678; PN718-719.

[63] Mr Wilson on Transcript at PN665.

[64] Exhibit A4 at NL-21.

[65] Mr Wilson on Transcript at PN661.

[66] Exhibit R1 at 49.

[67] Exhibit R1 at 53; Exhibit A4 at NL-20.

[68] Exhibit A4 at NL-20 and NL-21; Mr Li on Transcript at PN555.

[69] Exhibit R1 at 54.

[70] Exhibit R1 at 56.

[71] Exhibit A4 at NL-21.

[72] Exhibit R1 at 58.

[73] Exhibit R1 at 61-62 and 65.

[74] Mr Li on Transcript at PN545-548, 560.

[75] Exhibit R1 at 64-66.

[76] Mr Li on Transcript at PN550, 557, 564.

[77] Exhibit A4 at NL-14.

[78] Exhibit R1 at 67; Exhibit R2 at 16; Mr Li on Transcript at PN574.

[79] Exhibit A4 at NL-15.

[80] Exhibit A4 at NL-16.

[81] Mr Wilson on Transcript at PN735-737.

[82] Mr Li on Transcript at PN579.

[83] Mr Li on Transcript at PN577, 581; Mr Wilson on Transcript at PN743.

[84] Mr Li on Transcript at PN583; Exhibit R1 at 72.

[85] Mr Li on Transcript at PN584; Exhibit R1 at MW-11.

[86] Exhibit A4 at NL-17 and NL-19.

[87] Exhibit R1 at 8.

[88] Mr Li on Transcript at PN793.

[89] Exhibit R1 at MW-1.

[90] Exhibit A4 at NL-18.

[91] Mr Li on Transcript at PN791.

[92] Exhibit A4 at NL-2, NL-3, NL-4, NL-5, N-11.

[93] Mr Li on Transcript at PN609-624.

[94] Mr Li on Transcript at PN608.

[95] Edwards v Justice Giudice [1999] FCA 1836 at [7].

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

[97] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

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

[99] Toll Transport and Toll Priority v Joseph Johnpulle[2016] FWCFB 108 at [15].

[100] Ibid.

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

[102] Ibid.

[103]Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

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

[105] Ibid.

[106] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].

[107] RMIT v Asher (2010) 194 IR 1, 14-15.

[108] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

[109] Wadey v YMCA Canberra [1996] IRCA 568.

[110] Etienne v FMG Personnel Services[2017] FWCFB 3864 at [33].

[111] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

[112] Mr Li on Transcript at PN606.

[113] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198 at [19]–[20].

[114] Counsel on Transcript at PN838-839.

[115] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198 at [9].

[116] Kable v Bozelle [2015] FWCFB 3512 at [17].

[117] (1998) 88 IR 21; Tabro Meat Pty Ltd v Heffernan [2011] FWAFB 1080; Read v Golden Square Child Care Centre [2013] FWCFB 762; Bowden v Ottrey Homes Cobram [2013] FWCFB 431.

[118] Mr Li on Transcript at PN606-607; Exhibit A1 at 2.1; Exhibit A2 at 7.

[119] Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [32].

Printed by authority of the Commonwealth Government Printer

INDEX
PART A: Initial matters to be considered	[8]-[11]
PART B: Was the dismissal harsh, unjust or unreasonable?
I) The evidence and submissions
· About the employment relationship	[12]-[19]
· The reason for Mr Li’s dismissal	[20]-[23]
· The First Issue	[24]-[38]
· The Second Issue	[39]-[46]
· The Third Issue	[47]-[51]
· The Fourth Issue	[52]-[56]
· Counselling and disciplinary process	[57]-[78]
· Other matters	[79]-[82]
II) The findings	[83]-[126]
III) Consideration of section 387(a) to (h)	[127]-[160]
IV) Conclusion	[161]-[162]
PART C: Remedy	[163]-[199]