Robert McLean v Reserve Bank of Australia - [2024] FWC 2269

[2024] FWC 2269

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Robert McLean
v

Reserve Bank of Australia

(U2023/10811)

COMMISSIONER MATHESON

SYDNEY, 23 AUGUST 2024

Application for an unfair dismissal remedy – performance improvement plan – unsatisfactory performance – valid reason for dismissal – a number of PIP requirements not expressed clearly enough to know what was required or whether they had been met – feedback after mid-point review did not make clear that the Applicant was ‘off-track’ – second PIP meeting cancelled – show cause letter did not particularise ongoing deficiencies in performance – dismissal harsh – compensation ordered.

Mr Robert McLean (Applicant) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with the Reserve Bank of Australia (Respondent). While the Applicant’s application initially indicated he sought reinstatement or, in the alternative, compensation, the Applicant confirmed that he was seeking financial compensation rather than reinstatement in his submissions and during the conference held to determine the matter.

When can the Commission order a remedy for unfair dismissal?

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

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

(b) the Applicant has been unfairly dismissed.

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

When is a person protected from unfair dismissal?

Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

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

When has a person been unfairly dismissed?

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

(a) the person has been dismissed; and

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

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

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

Background

The uncontested factual background to the matter is as follows:

· The Applicant began working for the Respondent on 18 August 2009.
· On 11 January 2020 the Applicant was appointed to a management role with procurement responsibilities (Role).
· On 8 June 2023 the Applicant was asked to attend a performance improvement plan meeting and was notified of the implementation of a performance improvement plan.
· In correspondence dated 8 June 2023 the Respondent stated that it considered that the Applicant was not performing his role to the standard required and raised the following concerns:
oinability to appropriately plan and prioritise work, causing delayed delivery of key business initiatives, poor stakeholder experience and, on occasion, exposing the Respondent to potential reputational and commercial risks;
oineffective communication and a lack of visibility on progress of key business deliverables;
oinconsistency in driving stakeholder engagement; and
olack of ownership and accountability when issues arise, and in proactively seeking to address those.

· The correspondence of 8 June 2023 attached a Performance Improvement Plan (PIP).
· On 13 June 2023 the Applicant responded to the correspondence of 8 June 2023 attaching the PIP and, by way of summary:
oraised concern that leadership had not acknowledged the difficult performance environment in which he had been working, had not observed procedural fairness and had not provided consistent support in clarifying his role and performance objectives;
ostated that should the performance management process continue it would impact the trust and confidence he has in the Respondent;
oacknowledged there were opportunities requiring improvement but saw this as most likely to be achieved via a collaborative process ‘featuring full and consistent feedback’;
oexpressed concern that his team’s achievements had not been recognised;
oindicated that work pressures and resource constraints presented significant limitations on his performance;
oindicated that his requests to recruit for two vacant positions in his team had been declined, intensifying his work demands;
oindicated that certain work priorities should be performed by other teams.

· On 19 June 2023 the Respondent provided the Applicant with a revised PIP which commenced on 20 June 2023.
· A midpoint review meeting in relation to the PIP occurred on 31 July 2023 and on 17 August 2023 the Applicant was provided with a document relating to the midpoint review.
· The Applicant took bereavement leave between 28 August 2023 and 5 September 2023 and upon his return to work on 6 September 2023 was advised that the PIP would be extended due to him taking leave.
· On 4 October 2023, following a meeting, the Applicant was provided with a letter inviting him to show cause as to why his employment should not be terminated (Show Cause Letter).
· On 5 October 2023 the Applicant commenced a period of personal leave.
· On 6 October 2023 the Applicant provided his response to the show cause letter.
· On 6 October 2023 the Applicant informed Mr Scott Hunter that he would not be able to attend a meeting on 11 October 2023 to discuss the Respondent’s decision concerning his employment and provided a medical certificate.
· On 10 October 2023 the Applicant received an email response from Mr Hunter stating that the meeting scheduled for 11 October 2023 would not be rescheduled and that the outcome would instead be communicated in writing.
· On 11 October 2023 the Respondent provided the Applicant with a letter terminating his employment with effect from that date with the reason for termination stated as a failure to perform his duties to the standard required by the Respondent.
· The Applicant was dismissed on 11 October 2023 and was paid four weeks in lieu of notice.

The conference

There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.

After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a conference for the matter (s.399 of the FW Act).

Witnesses

The Applicant gave evidence on his own behalf.

The following witnesses gave evidence on behalf of the Respondent:

· Seraphim Tomaras, employed by the Respondent as a Financial Controller; and
· Scott Hunter, employed by the Respondent as Head of Procurement.

Submissions

The Applicant filed submissions in the Commission on 9 January 2024. The Respondent filed submissions in the Commission on 31 January 2024. Final written submissions were filed by the Applicant on 8 February 2024.

Has the Applicant been dismissed?

A threshold issue to determine is whether the Applicant has been dismissed from his employment.

Section 386(1) of the FW Act provides that the Applicant has been dismissed if:

(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or

(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.

I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act.

Initial matters

Under section 396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b)   whether the person was protected from unfair dismissal;
(c)   whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d)   whether the dismissal was a case of genuine redundancy.

Was the application made within the period required?

Section 394(2) requires an application to be made within 21 days after the dismissal took effect.

It is not disputed and I find that the Applicant was dismissed from his employment on 11 October 2023 and made the application on 1 November 2023. I am therefore satisfied that the application was made within the period required in subsection 394(2).

Was the Applicant protected from unfair dismissal at the time of dismissal?

I have set out above when a person is protected from unfair dismissal.

Minimum employment period

It was not in dispute and I find that the Respondent is not a small business employer, having 15 or more employees at the relevant time.

It was not in dispute and I find that the Applicant was an employee, who commenced their employment with the Respondent on 18 August 2009 and was dismissed on 11 October 2023, a period in excess of 6 months.

I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.

Application of an enterprise agreement/Applicant’s annual rate of earnings

It was not in dispute and I find that, at the time of dismissal, the Reserve Bank of Australia Workplace Agreement 2008 applied to the Applicant’s employment.

It was not in dispute and I find that, at the time of dismissal, the sum of the Applicant’s annual rate of earnings, being $153,685, was less than the high income threshold, which, for a dismissal taking effect on or after 1 July 2023, is $167,500.

I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

Section 388 of the FW Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

As mentioned above, I find that the Respondent was not a small business employer within the meaning of s.23 of the FW Act at the relevant time, having in excess of 14 employees (including casual employees employed on a regular and systematic basis).

I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the FW Act.

Was the dismissal a case of genuine redundancy?

Under s.389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:

(a) the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

It was not in dispute and I find that the Applicant’s dismissal was not a case of genuine redundancy as described in s.389 of the FW Act.

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

Was the dismissal harsh, unjust or unreasonable?

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

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

I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[1]

I set out my consideration of each below.

Section 387(a) - Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

Submissions

The Respondent submitted that there was a valid reason for the dismissal related to the Applicant’s capacity because of sustained, unsatisfactory performance.[2]

The Applicant appears to dispute this, raising a number of concerns about the performance management process, including concerns that:

the feedback provided during PIP meetings was inconsistent with the reasons provided in the Show Cause Letter, show cause meeting on 4 October 2023 and termination letter;
many of the objectives in the PIP were so broad and unmeasurable that the Applicant had no way of reasonably being able to measure his progress of the achievement of these objectives except through ongoing feedback;
the Respondent ignored his suggestions to add in measurable metrics for performance of the PIP;
the Applicant was provided with misleading or disingenuous feedback that he was doing well all the way up to the PIP midpoint and by the time he was asked to show cause as to why his employment should not be terminated, the vague and unevidenced narrative had been that he had been effectively failing all along, despite completing all requested PIP deliverables;
the Respondent added on additional items to the PIP at will and without meaningful consultation, without making adjustments to provide more time or support;
the Respondent did not take into account short staffing or the Applicant’s actual excessive workload; and
the Respondent’s Chief Financial Officer was operating on completely different feedback in relation to the PIP as compared to what was told to the Applicant.

The Applicant also alludes to an ulterior motive for the dismissal, submitting that the Respondent has been pursuing plans to restructure its procurement portfolio which would have resulted in elimination or reduction of the Applicant’s position.[3] The Applicant referred to two documents, ‘Procurement Strategic Review’ and ‘Procurement Strategic and Operational Reviews’, and submitted that these provide evidence that the Applicant’s role was to be made redundant which would have led to a significant payment to the Applicant under the Respondent’s policies and in accordance with the Applicant’s employment contract.[4]

The Applicant’s role

On 2 December 2019 the Respondent wrote to the Applicant offering him the position of ‘Manager, Corporate Category & Governance, Workplace’, commencing from 11 January 2020. The Applicant said that the title of his role was ‘Manager, Corporate Category and Governance, Procurement’.[5] Mr Hunter said that when he first became the Applicant’s direct manager in May 2021 the Applicant was employed in the role of ‘Manager, Governance, Procurement, Financial Control, Finance’, and this was the role the Applicant held up to the termination of his employment.[6] Mr Tomaras said that at the time of the Applicant’s dismissal the Applicant was employed in the position of ‘Manager, Corporate and Governance, Procurement, Finance’.[7] Despite the differing titles used by the parties, these all refer to the Role.

Mr Hunter said the Applicant was appointed to the Role in January 2020 from a below manager role and that the Role brought with it the added responsibility of being a manager and the requirement to demonstrate leadership skills not required of the Applicant in his prior role.[8]

The responsibilities associated with the Role were set out in a position description (Position Description).[9] The Position Description indicates that it was approved on 28 March 2022 and stated that the primary purpose of the role was to:

‘Oversee the direction of a procurement area, while leading and developing individuals and teams to achieve goals and deliver RBA outcomes. Lead strategic sourcing initiatives in partnership with the business and support effective governance of procurement activities across the Bank.’

The Position Description states that the Role objectives are to:

· Create a RBA values aligned culture, enabling an environment for high levels of employee engagement and achievement.
· Contribute to the broader strategic direction and leadership of the area, sharing accountability with other leaders for overall performance of deliverables and outcomes.
· Provide advice and insights and deliver accurate and timely reporting and procurement services that contribute to the organisation’s strategic goals.
· Ensure operational accountability in regards to people management, budget and processes.
· Lead, guide and develop individuals and teams to effectively achieve area outcomes.
· Enable and recognise workforce performance in a way that encourages continuous improvement.
· Contribute to the improvement of policies, systems and processes, ensuring the integrity and suitability of information as well as compliance with legislative obligations.
· Identify and respond to issues, risks and opportunities, ensuring appropriate processes are in place.
· Maximise value for the Bank by managing internal and external relationships and collaborating effectively with key stakeholders.
· Provide quality assurance of contract documentation for execution and assist with contract establishment and negotiations.
· Create and implement category strategies (for a portfolio of spend) delivering improved value for money to the bank and demonstrating implementation of best practice (KPI’s, supplier management, market knowledge, tendering, deal structuring).
· Establish and maintain a contract and supplier management framework.
· Provide quality assurance through the introduction and maintenance of procurement templates and tools for Bank-wide use.

The Position Description also includes ‘other position details’ which appear to be skill and experience requirements and include:

Experience in drafting and implementing policies and governance.
Experience in design and implementation of procurement governance tools (policies, procedures, templates).
Advanced skills in category management and procurement tendering.
Experience in commercial contract negotiation and management.

The Position Description includes ‘compliance requirements’ which include compliance with the Respondent’s Code of Conduct and policies, risk management arrangements, statements of responsibilities, manuals, guidelines and procedures including, without limitation, those relating to personal behaviour, work health and safety, diversity and inclusion and information management, confidentiality and security.

Applicant’s managers

The Applicant was appointed to his role in January 2020. Mr Scott Hunter was the Applicant’s Manager at the time of his dismissal.

The evidence of Mr Hunter and Mr Tomaras establishes that:

·   between May 2021 and December 2021 the Applicant directly reported to Mr Hunter;[10]
·   from December 2021 to April 2022, the Applicant reported to the Respondent’s Financial Controller, Mr Tomaras[11] while Mr Hunter held the role of ‘Acting IT Procurement Manager’;[12]
·   from April 2022 to December 2022 the Applicant reported to Mr Hunter while Mr Hunter held the role of ‘Head of Procurement – Finance’;[13]
·   from December 2022 to August 2023 Mr Hunter was seconded to the Respondent’s ‘Enterprise Program Management Office’ and Michael Hare acted in the ‘Head of Procurement’ role.[14] Mr Hunter said Mr Hare had responsibility for managing the Applicant during this time,[15] however Mr Tomaras’ evidence was that from July 2023 the Applicant reported to Mr Hunter who had returned from secondment.[16]

Prior to Mr Hunter becoming the Applicant’s manager in May 2021, the Applicant reported to Ms Anna Brown. However it is apparent that after Ms Brown ceased to be the Applicant’s Manager, the Applicant had three different direct managers across five periods in the period between May 2021 and his dismissal in October 2023.

Mr Tomaras’ evidence was that from October 2021 until the Applicant’s employment was terminated, he was either the Applicant’s direct or two-up manager.[17]

The Applicant’s FY21 mid-term performance review feedback

The Applicant’s Manager at the time of his 2020-2021 financial year (FY21) mid-year review was Ms Brown. Mid-term manager comments within the FY21 performance review document[18] include the following comments about the Applicant’s performance:

‘Robert has made a significant contribution to the team in the first half of this year, delivering a numbr (sic) of great results. The demands and his workload has (sic) been high, which has made it challenging and we have agreed that this is something we’d like to address in the second half of the year. Robert’s strengths are in problem solving, analysis, written and verbal communication, governance and legal advice and his strong network at the Bank. He is very valuable to me in his role as he is perceptive and sees opportunities and gaps and presents ideas to resolve them. He is building a strong team and managing some development areas with staff that are solvable and he’s been investing time in coaching and staff development. Robert’s development focus for the second half of the year is to strengthen his planning skills (consistent delivery and a method to manage his priorities and forecast changes) and continuing to strengthen his people management skills. He has a very good understanding of the procurement process, CPR’s and procurement governance, so it is not an area he needs to develop right now, but I agree with his idea to put aside time to continue to build that knowledge base. We also discussed opportunities for learning in innovation, design, thinking, digitisation to support some more interesting aspects of his role that will make a difference to Procurement in the coming 2 years. Robert is very well established in his role, I enjoy working with him every day and congratulate him on a very strong half of FY20’.

The Applicant’s FY21 performance review and feedback provided on 16 July 2021

Mr Hunter was involved in the Applicant’s end of year performance review for the FY21 as he was the Applicant’s manager at that time.[19] A meeting for the purposes of the review was chaired by the Head of the Respondent’s Workplace department on 16 July 2021 and during this meeting the Applicant’s self-assessment and manager feedback in the FY21 performance review document pertaining to the Applicant (FY21 Performance Review) was discussed.[20]

Mr Hunter said that in assessing the Applicant’s performance, he had regard to feedback provided by Mr Bruce Harries which was recorded in the FY21 Performance Review and said:
‘…However, there has been negative feedback on the procurement experience from Stake holders in Legal, HR, NI, RM and BK, which form the bulk of your portfolio. In some cases, the feedback was specifically about you and observations that you had a tendency to provide advice that was either hard to follow or changed over time, that you didn’t always appear to listen to the stakeholder issues, or if you did you did not address them to their satisfaction, and that expectations were not well defined or managed. I accept that some of this was no doubt due to the fact that you have been very stretched on the policy, reporting and governance issues, but on balance this negative feedback detracts from your overall performance. That is why I believe a “Good” overall rating is appropriate.
It is not to imply that these issues can’t easily be remedied (I know they can), and part of that is to ensure that you have a more balanced workload and can spend more time on the customer service aspects of your role. There are also some opportunities to work on the clarity and conciseness of your communications and customer engagement approach with Scott and the new Senior Manager for Procurement when they are appointed…’[21]
Mr Hunter pointed to the following further comments he provided in the FY21 Performance Review:

‘…Opportunities for improvement include:
Improved stakeholder engagement across your portfolio. We will work together to ensure you have capacity to do this more effectively in the next period.

Offering clear succinct advice that stakeholders can easily understand and act upon.
As simplification is bedded in and phase 1 of procurement digitalisation is completed this will provide some capacity to undertake greater portfolio based strategic work. This will provide an opportunity for increased stakeholder engagement and category strategy work.’

Notwithstanding these comments, immediately after them Mr Hunter stated:

‘You should be very proud of your achievements this year.
Well done!’

Mr Hunter said that for FY21 the Applicant gave himself a rating of ‘Great Year’ but was given an overall rating of ‘Good Year’, being the middle performance rating, as Mr Hunter and Mr Harries agreed there had been adverse stakeholder feedback and improvement needed, particularly in relation to stakeholder engagement.

A copy of the FY21 Performance Review was annexed to Mr Hunter’s witness statement at Annexure B. While the above feedback is reflected in the FY21 Performance Review, suggesting there were areas for improvement, the balance of feedback captured in the FY21 Performance Review is generally very positive notwithstanding that the Applicant was encountering high work demands and resourcing challenges in the FY21 performance year. While some of Mr Harries’ feedback was negative, he also included the following comments:

‘Robert undertook a great deal of work during the year centred around updating the Procurement policy, guidelines and tools and templates as well as rolling out simplification and training. These items have been undertaken in a much better way that (sic) previous iterations. Highlights include significant executive level engagement to revise the procurement guidelines as well as the roll out of simplification driving buy in along the way and the uplift in dtat (sic) driven decision making through the introduction of BI tools and reporting. The work on digitalization, although at proof of concept, also promises to yeild (sic) efficiencies. Of these achievments (sic) you should be very proud. Well done!’

As noted above, Mr Hunter did not become the Applicant’s Manager until May 2021. However as a part of the FY21 performance review process, the FY21 Performance Review indicates that Ms Brown and the Applicant reviewed his performance against the full year goals in mid-April and that Ms Brown’s overall assessment was that all the major goals for FY21 had either been achieved or were on track for delivery by year-end. Ms Brown’s comments in this regard are detailed, generally positive and include the following:

‘This is a significant achievement as there has been very little let-up in a big year. Robert has taken the full weight of the material changes we’ve made to procurement this year. His peers have supported him, but no-one at his level has worked to the standard, covered the volume and contributed to work with senior stakeholders as he has this year. He has worked closely with me on managing senior stakeholders and strategic matters’.
‘The number of goals that fell to Robert and his team out of the Procurement Review was significant (he had the majority). He has done this in challenging circumstances as his team is not resourced for this level of governance work (it was a peak for FY21). Hopefully it’s not repeated in FY22 as the team need to be able to balance governance work with BAU procurement support (or resources restructured to address this). We did agree with Bruce to minimise time on procurements, but it’s challenging to say no to 14 Departments all year – it’s (sic) just doesn’t work and some level of service needed to be provided. In the majority case where Robert’s team ran a tender and supported the business on a purchase, the savings have been significant and the customer feedback very positive’.
‘We agreed to targets at the start of the year without knowledge of the additional goals that would be added (without relief on other goals) or changes in dates. Robert responded positively to this challenge, is always fully committed to getting the best outcome for the Bank and meeting the needs/requirements of our senior stakeholders’.
‘We were asked to bring forward the review of the Policy and Guideline by several months. This placed an increased load on Robert in November/December to design the timeline, engage stakeholders early and start the review, while only just finishing the December submission to the RMC on Simplification’.
‘Robert has had changes in his staff this year which he has managed very well’
‘…In my skip meetings with his team members, I receive very strong feedback about their relationship with Robert and he has a high level of awareness of where he can and wants to improve his management style’.
‘Robert has supported me in challenging relationships at the WP Senior Manager level and has shown a level of maturity and skill that is beyond his level. He stepped in to manage resolution of matters with [a stakeholder] and the WP team more broadly and address their feedback on procurement processes. His maturity and skills to offer to his Manager was valuable to me and again – exceeds the performance of his peers, particularly the peer group across WP.
‘Robert has been my sounding board on most of the strategic matters all year and has led the technology roadmap discussion for Procurement. There are a few other people I can discuss matters such as framing a position for ExCo, positioning how to mature elements of the procurement strategy, how to introduce technology to our future strategy – his contribution to strategy and the position of Procurement is unmatched and invaluable to me as a leader’.
‘Robert’s contribution in FY21 has been exception and unfortunately I think that’s come at a personal cost to him at times (too much work, too many competing priorities). It is important that the workload reduces to a manageable level in FY 22, and a review of the resourcing model in this team would support that.’
‘He is no longer a “learner” in the procurement discipline. He is highly proficient, despite his short time in this area and is sought out by his peer and team members for expert advice weekly (to such a degree that I’ve asked his peers to manage this interaction so that he’s not overloaded and the other Managers step in to support this advisory role).’
‘It is a great pleasure working with Robert, he has contributed significantly to the evolution of procurement at the RBA. Where he has development areas and learnings, he is very open to reflecting and changing which is the type of behavior we are aiming to model in the team.’

Ms Brown’s feedback indicated that there had been questions about the performance of a team member who had been replaced and the interactions between that team member and the Applicant. In this regard the feedback states that with hindsight, and the opportunity to see the Applicant successfully managing other team members, she was confident that the matter was isolated to the relationship between that team member and the Applicant. Ms Brown’s feedback also indicated that another team member was sometimes challenged in her role, had been coached on some development areas, was likely to have some mixed feedback about working for the Applicant and that the feedback should be considered in context.

Ms Brown’s feedback also suggests that the Applicant needed to work with some challenging stakeholders, with Ms Brown including the following comments:

‘Robert and I have discussed some of the mixed feedback he has had from stakeholders during the year. More challenging relationships include for example managing FMG who openly and actively resist complying with the procurement guideline. We have sought senior leadership help to manage these challenges and continue to work with a number of stakeholders to slowly change that behaviour. However I think FMG is an example of an internal customer who give (sic) mixed feedback to all their interactions with Procurement – they have openly resisted the same guidance and direction from Darren’s team and have escalated to me’.

Initial concerns held by Mr Hunter and Mr Tomaras

As noted above, Mr Hunter first became the Applicant’s direct manager when he was appointed to the role of Interim Senior Manager, Procurement in May 2021.[22]

Mr Hunter said:

it soon became apparent that the Applicant was struggling in his role, particularly in relation to the leadership skills needed to perform the procurement aspect of the role, including planning and providing clarity to his direct reports;
the Applicant continued to focus disproportionately on governance processes rather than his procurement category objectives;[23]
he observed the Applicant was not proactive when it came to stakeholder management and his stakeholder engagement was poor, resulting in negative outcomes and feedback;
the Applicant did not take accountability and ownership of issues that, as a leader, he was responsible for managing;[24]
·   he was concerned about the Applicant’s performance and provided him with feedback and coaching on numerous occasions, including in regularly scheduled one-on-ones, catch-ups and team meetings;
·   he observed that sometimes the Applicant would be defensive about the feedback however more often the Applicant would be receptive to the feedback but didn’t ultimately take the action required; and
·   he felt the Applicant would follow specific directions and undertake specific tasks given to him but was not otherwise proactive.[25]

Mr Tomaras said that when he became the Applicant’s two up manager in October 2021 his initial impression of the Applicant was that he was positive as he was welcoming of him into the team.[26] However Mr Tomaras said that soon after that time he was approached by several employees who expressed concern about the Applicant’s leadership of the procurement activities he was supporting or advising on, specifically in relation to his communication, advice and lack or follow through.[27] Mr Tomaras said he provided some high level feedback based on those discussions but wished to assess the performance himself.[28] Mr Tomaras said he asked the Applicant about the status of the procurement activities he was responsible for and sought his feedback on any challenges and support required to progress them.[29]

Mr Tomaras said that early on in his working relationship with the Applicant he began to observe some performance issues related to:

poor stakeholder engagement;
untimely communication;
lack of transparency around the progress of his work;
missed deliverables due to a lack of prioritisation and planning; and
lack of proactivity and ownership over deliverables.[30]

Mr Tomaras said he made the Applicant aware of these issues from very early on by providing consistent feedback in relation to them, for example, during regular meetings with the Applicant.[31] Mr Tomaras said he observed that the Applicant did not take ownership of the feedback provided, either by suggesting that someone else was responsible or that others were not providing necessary input.[32]

Mr Tomaras referred to a specific example in relation to the pending expiry of the Respondent’s Employee Assistance Program (EAP) arrangement with the Respondent’s Head of Health and Safety sending him an email expressing concerns about the Applicant’s support in an email in December 2021.[33] Mr Tomaras provided a copy of that email in which the Respondent’s Head of Health and Safety indicated that:

the procurement plan had been submitted on 19 May and the Safety and Wellbeing team had prepared all of the required documentation and provided this to the Procurement team for review and approval on 23 November;
the Procurement team met with the Safety and Wellbeing team on 30 November and advised that due to resourcing constraints a full tender could not be supported by Procurement due to the amount of work involved;
two alternatives were proposed (by the Procurement team) being the extension of the current contract for a further year (Option 1) or selection of a provider from a government panel (Option 2).[34]

The Head of Safety and Wellbeing stated that while understanding there were genuine resource constraints this was not acceptable in that:

the Safety and Wellbeing team had prepared all of the required documentation and all that was required from the Procurement team was their review and approval;
he believed that the Procurement team resourcing was minimal;
the Procurement team had known that the tender was required for the best part of a year;
Option 1 contradicted a previous direction from Workplace that a two-year extension would breach the Commonwealth Procurement Guidelines;
Option 2 did not allow for the incumbent to tender as they were not part of the government panel of providers and in this regard the Head of Safety and Wellbeing indicated that that this seemed unfair and not necessarily in the Respondent’s best interest given they were happy with the service and there were considerable costs involved in changing provider.[35]

Mr Tomaras said that after an initial meeting with the Head of Safety and Wellbeing about his email of 6 December 2021:

he brought the Applicant to a subsequent meeting to work through the concerns and agree a path forward;
he had several discussions with the Applicant to support and provide guidance on delivery of the activity.[36]

Mr Tomaras said that this example raised his concerns about the Applicant’s communication and customer engagement skills, his ability to plan an activity and his ability to consider and balance elements of compliance with customer needs.[37]

Feedback provided by Mr Hunter on 29 June 2021

Mr Hunter provided an example of his concerns about the Applicant’s performance in relation to a project the Respondent called the ‘Simplification Project’. The Simplification Project had commenced prior to Mr Hunter him joining the Respondent and the Applicant was responsible for managing it.[38] The Applicant handed the final stages of the Simplification Project’s implementation over to a team member, Ms Camargo, as he was taking annual leave.[39] Mr Hunter said he reviewed the status of the project at that time and found that much of the required content had not yet been developed and there was a large amount of work outstanding for delivery by 1 June 2021 and limited planning in place.[40] After the Applicant returned from leave Mr Hunter met with him on 29 June 2021 to discuss how the lack of planning had impacted the team and during that meeting told the Applicant that the timeframe had only been met due to Mr Hunter’s direct intervention and additional support from Ms Camargo and the Respondent’s Corporate Communications Team.[41] Mr Hunter said he discussed the need for greater focus on having a clear and visible plan and using appropriate language for customer facing guidance.[42]

At Attachment A of Mr Hunter’s witness statement were notes that Mr Hunter said he kept in relation to meetings with the Applicant. I note that these do not appear to be contemporaneous notes but appear to have been extracted from some other source as they are included in a document that appears to be a chronology of events between 3 May 2021 and 15 August 2023. The notes in relation to the meeting on 29 June 2021 include the following:

‘RM Process Improvement Meeting
·     Discussed lack of planning with simplification impacting the end timeline. Need for a project plan with clear milestones.
·     Reviewed template list and prioritised.
·     Need greater focus on customer in the language we use with our customer facing guidance.
·     Limited capacity for category mgmnt given governance priorities and reporting due.
·     Discussed engaging 12 mth contractor to assist. RM to produce job add and PD due 5 July.’[43]

Feedback provided by Mr Hunter on 22 September 2021

Mr Hunter said he received negative feedback about the Applicant from a customer satisfaction survey on 22 September 2021 in which representatives from the Respondent’s Note Issue department and Audit department provided commentary to the effect that the Applicant had a tendency to immediately give them a response to requests for advice, that advice was incorrect and he would then follow up to correct his advice after consultation with others.[44] Mr Hunter said he met with the Applicant that same day and suggested he should hold off on providing the advice until he has made inquiries, as opposed to “shooting from the hip and hoping it is correct”.[45] Mr Hunter’s notes in relation to the meeting, as reflected in Annexure A of his witness statement state:

‘Feedback from Note Issue and Audit as part of customer (sic) satisfaction survey’.
‘[N]eed greater consistency in advice, Robert has a propensity to provide a response first that it wrong and then needs to come back and correct it after consultation with others’.
‘Discussed stakeholder feedback with RM. If he is not sure about providing certain advice to say he will find out and respond separately rather than shoot from the hip and hope it is correct.’[46]

The Applicant’s FY22 mid-term performance review

Mr Hunter did not participate in the Applicant’s mid-term, performance review as he held the role of Acting IT Procurement Manager at that time and the Applicant did not report directly to him.[47]

Mr Tomaras said he raised concerns with the Applicant during the mid-term performance review and recalled explaining to the Applicant that:

he had received generally negative feedback from several customers within the Respondent, particularly in relation to service delivery, advice provided and their personal engagements with the Applicant;
he had failed to communicate effectively and follow through on commitments in a timely way;
his approach to advice and planning was often considered overly conservative and negative by stakeholders.[48]

Mr Tomaras said he discussed with the Applicant the manager feedback contained in the FY22 performance review document pertaining to the Applicant (FY22 Performance Review).[49]

Mid-term comments by Mr Tomaras within the FY22 Performance Review included the following positive feedback:[50]

‘Robert has been a tremendous support in my transition to the procurement team, both in terms of his willingness to share his clearly detailed knowledge of the Bank’s procurement policies, processes and practices, but also being extremely generous with his time and jumping in to help myself and the broader procurement team through what has been a difficult period on the resourcing front (not least of which within his own team, which has seen a number of unplanned exits and staff absences over the period and Robert riding solo for an extended period).’
‘During the period, Robert was very active in guiding the work to map out the teams end-to-end processes, workshopping this with the team to ensure buy in and understanding and delivering a guidance document which will be highly beneficial to the team going forward as both a knowledge centre and a tool to support process improvement. In this spirit, Robert has also continued to carry forward the work for a digital procurement app, demonstrating both his SME knowledge and drive and passion for automation and process improvement; and the work to outsource the Bank’s fleet management services. Both these initiatives should be well placed for delivery over the second half of the performance year, but will require ongoing engagement and collaboration with partner departments across the Bank to ensure buy in and support (given resourcing constraints and competing priorities which have already posed some challenges to the planned delivery timeframes).
‘Robert has a clear passion to ensure the function delivers a high quality of service which supports the Bank in its broader goals, and has an unquestionably strong work ethic to support this. If he can continue to work on his customer engagement and portfolio goals, combined with us addressing the current resourcing challenges in the team, such goals are within reach.’

The mid-term comments in the FY22 Performance Review also included the following regarding areas for improvement:[51]

‘In terms of Robert’s key performance goals for the remainder of the period, he is strongly encouraged to focus on his customer experience and procurement portfolio gorals, which have not progressed as planned for various reasons. In particular, feedback from a number of Departments has tended to remain generally negative, in terms of both their experience with the service/advice provided and with their engagement with Robert himself (some of which reflects experiences in prior periods). This has tended to reflect a lack of communication and timely follow through on commitments. An at times very conservative and negative approach to advice and planning, rather than a risk based approach (i.e. trying to eliminate rather than manage risk), was also noted, and has been observed and raised by myself. Building these relationships and addressing the associated perceptions (some of which are historical) through regular and ongoing communication, and a focus on understanding and supporting the customer to provide valued advice, will be crucial in the immediate period ahead, and to support the ongoing development of the portfolio going forward. This in itself doesn’t mean always agreeing, as the nature of this role is such that difficult conversations will inevitably arise (and customers will always have their own lens on the priority of a deliverable), but such engagement still needs to occur productively and bearing in mind the role we play in procurement. Ongoing support will be provided, both in terms of the engagements themselves, working through any roadblocks and any formal development opportunities, but much will be driven by Robert actively seeking to work on these relationships.’
‘In terms of his leadership, Robert should work to actively manage the pipeline of work and prioritise this to ensure the highest value activities are prioritised (viewing this from an enterprise wide perspective), especially given the current resourcing constraints, and ensure the team are appropriately empowered to own some of these initiatives (which should free up Robert’s time) and provide them a good mix of work to support their ongoing development with appropriate stretch in their work.’

The Applicant’s FY22 end of year performance review and feedback provided on 25 May 2022

Mr Hunter and Mr Tomaras conducted the Applicant’s end of year performance review for the 2021-2022 financial year (FY22) and held a meeting for this purpose on 25 May 2022.[52]

Mr Hunter said that Mr Tomaras began by outlining positive feedback and that both he and Mr Tomaras mentioned that there had been mixed stakeholder feedback, negative customer engagement and a need to improve communication regarding the status of activities.[53] Mr Hunter said that he and Mr Tomaras discussed their concern that the Applicant had a tendency to downplay or ‘mask’ issues and specifically told the Applicant that he should provide a “warts and all assessment of issues” so he and Mr Tomaras could provide support and escalate when required.[54] Mr Hunter said he and Mr Tomaras also raised with the Applicant the need to improve the Applicant’s planning and prioritisation, emphasising actions that would deliver the most value to stakeholders.[55]

Mr Hunter said he gave the Applicant an overall performance rating of ‘inconsistent year’ for FY22, which was the lowest rating that could be given, and felt this was appropriate due to the performance concerns discussed at the performance review meeting.[56] Mr Tomaras said that this rating meant that the Applicant was not performing to the standard expected of a manager level role.[57]

Mr Hunter pointed to the following specific feedback within the FY22 Performance Review pertaining to the Applicant:

‘….Customer Engagement : Customer feedback has been positive in key areas of engagement however there have also been some areas where feedback is mixed. This feedback generally aligns with the mid year feedback with some improvements evident in HR and Note Issue.
We discussed the need for Robert to improve communication regarding the status of activities and initiatives to ensure that, when needed, support can be provided. Examples of where greater transparency could have been provided was in regard to the status and coordination of Contract Management Plans and the status/progress of the Fleet outsourcing agreement. We discussed the need to provide a warts and all assessment of progress, be open about progress and where there are issues call them out early so we are clear where support is needed.
Further discussion covered the need to focus on the priority actions that will deliver the most value. We discussed that this has been sometimes difficult due to the complexity of the Categories within the Corporate Portfolio as well as balancing the Compliance functional responsibilities. One suggestion provided was for Robert to structure his time (that best fits his job profile) to create dedicated time spaces to focus on key elements of the role (eg. Monday (people), Tuesday (process), Wednesday (systems) etc.)…’

A copy of the FY22 Performance Review was attached to Mr Hunter’s statement and also included the following comments.

‘Robert acknowledges that it has been a challenging year in his role with the key concern areas for him being around leadership and strategy ambiguity, team resourcing, services delivery of fleet, process changes, complexity of work profile and prioritisation of business engagement.’
‘General feedback is that there have been positive signs of improvement in stakeholder engagement when this has been a focus. Although there has been mixed feedback kfrom (sic) stakeholders throughout the year, it has been a more positive finish to the year.’

The Applicant’s FY23 mid-term performance review and feedback provided on 24 January 2023

Mr Hunter said that after the Applicant’s FY22 performance review, he continued to become aware of issues with the Applicant’s performance.

On 24 January 2023 Mr Hunter and Mr Hare met with the Applicant to discuss his mid-term performance review for the 2022-2023 financial year (FY23).[58] Mr Hunter said in that meeting he and Mr Hare discussed areas of the Applicant’s performance requiring further improvement including:

the need for the Applicant to take more direct responsibility for procurement activities under his category to improve his understanding of process in practice and in doing so raise his credibility with his stakeholders;[59]
improvements to his coaching and leadership style, notably ‘listening to hear versus respond’ and providing more autonomy in delivery to his direct reports, taking greater accountability and ownership of his portfolio and focusing more on proactive stakeholder engagement with a view to finalising Category/Portfolio plans by June 2023.[60]

Mr Hunter noted that the areas for improvement raised with the Applicant in his mid-term review were recorded in the FY23 performance review document pertaining to the Applicant (FY23 Performance Review), including the need to:

improve his coaching skills so as to promote autonomy in delivery, and drive
ownership and accountability;
take ownership and lead procurement activities; and
improve his stakeholder engagement, including in light of negative stakeholder experiences arising from his giving of inaccurate advice.[61]

Mr Hunter said a consistent theme with the Applicant’s performance, which was raised with the Applicant in his FY23 performance review, was the need to improve his leadership skills and this was despite the Applicant completing seven leadership courses offered to him by the Respondent to support his development between 2021 and 2023.[62]

Applicant’s account of when performance concerns were first raised and implications

The Applicant said that performance concerns were first raised with him by the Procurement leadership team between February and May 2023[63] and that he was:

subject to isolation and exclusion within the team; and
observed other procurement team managers withholding crucial information pertaining to his areas of responsibility for professional services engagements which were material to the Applicant’s ability to perform his role and duties.[64]

Mr Tomaras did not agree with the Applicant’s account that performance concerns were first raised with him by the Procurement leadership team between February and May 2023[65] and said that performance concerns were raised with the Applicant informally and made clear in his performance reviews from FY21 onwards, including the performance rating ‘inconsistent year’ as part of the FY22 Performance Review.[66]

Initiation of the Performance Improvement Plan

Mr Tomaras said that in the period between February and May 2023 he became increasingly concerned about a decline in the Applicant’s performance and that a few major issues arose during and leading up to this period, resulting in negative stakeholder feedback and potential exposure of the Respondent to liability.[67]

Mr Tomaras said that on 8 February 2023 immediately prior to the Applicant commencing a period of leave where the Applicant would have no access to systems, the Applicant sent an email to Mr Tomaras and others in the team notifying of an issue involving a supplier Eighty20 who was claiming payment for unpaid invoices relating to work performed several months earlier.[68] Mr Tomaras said he was concerned as he could see from the email trail that the matter had been escalated to the Applicant in August 2022 with multiple and regular follow-ups by the supplier.[69] Mr Tomaras said that when the Applicant returned from leave on 24 March 2023 it was necessary for him to meet with the Applicant about the issue and he expressed concern about the Applicant’s communication with the supplier and lack of escalation internally to support resolution in a timely manner.[70] Mr Tomaras said he noted concerns about how the supplier relationship was managed to lead to the dispute around the work performed and encouraged him to raise issues with him or others in the team as required.[71] Mr Tomaras sent the Applicant an email about this issue on 24 March 2023.[72]

Mr Tomaras said that he met with the Applicant again on 5 May 2023 as it had come to his attention that the Applicant had provided misleading and inaccurate information about the steps taken to obtain insurance for the Respondent’s motor vehicle fleet resulting in the potential for the Respondent’s motor vehicle fleet to be uninsured, potentially exposing the Respondent to liability.[73] Mr Tomaras also said that the Applicant’s actions committed the Respondent to a financial arrangement where he did not have the appropriate authority to do so.[74] Mr Tomaras said:

he expressed disappointment that the new issue had arisen soon after the other discussion where he had provided feedback and guidance to the Applicant about communication and that key details appeared to have been withheld from him when relevant approvals were sought;[75]
he noted the Applicant’s poor planning and that he needed to take accountability and ownership over his goals and action;
he advised the Applicant that he was on track for an ‘inconsistent year’ performance rating for FY23 and that a PIP was under consideration.[76]

On 6 May 2023 Mr Tomaras sent the Applicant an email summarising the 5 May 2023 meeting which:[77]

stated ‘Thanks for making the time on Friday morning to discuss the two items below in more detail, and to talk through my assessment of your broader performance and feedback on this has recently progressed’;
expressed disappointment and said:

‘Both items raise concerns for me given your role and that they again involve third parties and financial management, and especially as we have only recently discussed similar matters as part of the dispute resolution for Eighty20…and in the initial response to the insurance renewal being rushed through at the last minute’;

expressed an expectation that matters should be planned and that there be open, honest and transparent communication with staff and external parties, especially when an issue has arisen;
acknowledged that the nature of operations meant that things would go wrong from time to time and deliverables will fall behind but indicated that when this is the case, there was a need to appropriately respond and manage such instances and that this would almost always require timely and transparent communication with the Applicant’s team, colleagues or manager to address the situation and provide relevant support;
expressed an understanding that there was no intention to mislead around the insurance renewal or to commit the Respondent to the insurance policy prior to Mr Tomaras’ approval as the delegated approver and that those outcomes were more a factor of insufficient planning and that the Applicant was seeking to ensure the Respondent was covered given the policy was expiring on 31 March;
noted the Applicant’s feedback that expectations set by Mr Tomaras as a part of the review process were high, and that added weight may have been given to the financial approval processes given his role;
expressed an understanding from Mr Tomaras that he may ‘enquire on items more than some others’ and was ‘possibly more familiar with the relevant policies’;
expressed an expectation that staff involved in procurement activity, especially those leading procurement teams, should have a high standard when it came to ensuring the Respondent achieved value for money, acted (and were seen to act) fairly with suppliers, acted with integrity, and were familiar with the relevant policies and apply them as intended (or seek support where uncertainty arises);
said that ‘considering these events, and despite feedback and support being provided over a substantive period’ Mr Tomaras had not seen enough improvement in performance or the required uplift in capability expected for the role;
indicated that Mr Tomaras did not believe the Applicant had delivered against his performance objectives in the performance year and that his assessment was that he was on track for an inconsistent rating, following a similar rating in the prior year;
stated that as there had been little assessed improvement moving to a PIP was under consideration, the aim of which would be to more clearly outline goals and capability to be demonstrated, and have a regular check in to assess against these;
encouraged the Applicant to focus on maintaining open, timey and transparent communication with his team members and stakeholders, and to take more accountability and ownership for his goals, decisions and actions;
recommended that the Applicant take time to appropriately plan and outline actions to address the various priorities he had recently discussed with Mr Hunter relating to fleet, labour hire, the guidelines and pipeline of activity for the corporate portfolio and prioritise his time to ensure sufficient progress is being made on these and in leading and supporting his team (over other items that can be deprioritised or otherwise managed across the team);

stated that this would require the Applicant to be more actively engaged with the team to support and help their development;
indicated that Mr Tomaras was happy to make time the following week to follow up on any items he and the Applicant were not able to conclude or that the Applicant wanted to think about, including how the Applicant was finding the role and work more broadly;
foreshadowed a further meeting to discuss the broader performance feedback.[78]

Mr Tomaras said that on 12 May 2023, before the Applicant commenced a further period of planned leave, the Applicant sent a number of emails regarding outstanding actions including reporting of contracts on AusTender and several fleet issues that had not been completed and seeking support to progress those items in his absence.[79] Mr Tomaras said that he was concerned as these issues were raised immediately prior to going on leave (and after normal business hours to allow peers to discuss the actions) and in circumstances where the Applicant had earlier indicated that the matters were otherwise further progressed.[80]

Mr Hunter was on secondment between December 2022 and August 2023 and was not the Applicant’s direct manager at this time however Mr Hunter said he received regular updates on the Applicant’s performance from Mr Tomaras and Mr Hare.[81] Mr Hunter, recalled that Mr Tomaras and Mr Hare:

gave negative feedback about the Applicant’s management of fleet services;[82]
said there had been internal customer complaints about the Applicant;
said the Applicant was failing to plan and execute on ‘Labour Hire improvement’ – a task that was required of him in his role and which Mr Hunter discussed with the Applicant prior to Mr Hunter taking on his secondment.[83]

Mr Hunter said that the Respondent’s senior management had identified that the Applicant had not arranged for payment of invoices issued by Eighty20, a supplier engaged to develop a procurement workflow portal which damaged the Respondent’s commercial relationship with the supplier and exposed the Respondent to potential liability.[84] Mr Hunter also said that he was made aware of a failure by the Applicant to ensure that the Respondent’s motor vehicle insurance was put in place correctly and with the appropriate level of authority prior to the expiry of the policy and that the Applicant had overall responsibility and accountability for this.[85]

Mr Hunter said that he, Mr Tomaras and Mr Hare had serious concerns about the Applicant’s performance and decided that a performance improvement plan was needed to manage the performance issues and support him to uplift his performance to the required standard.[86]

Mr Tomaras, Mr Hare (who was Acting Head of Procurement at the time) and Mr Hunter developed the PIP, supported by the then HR Business Partner.[87] Mr Hunter was involved in the development of the goals for the PIP.[88]

On 8 June 2023 a meeting was held in which the Applicant and his support person, Mr Tomaras and the Respondent’s Head of Business Partnering were in attendance.[89]

During this meeting the Applicant was notified that a PIP would be implemented and would commence on 13 June 2023.[90] Mr Tomaras said that during the meeting he informed the Applicant of the purpose of implementing the PIP and that his employment may be terminated if his performance did not improve to the base level of competency expected of a manager.[91]

Later that day follow up correspondence was sent via email (PIP Letter) which was signed by Mr Tomaras. By way of summary, the PIP Letter stated that:

the Respondent had concerns in relation to some aspects of the Applicant’s performance;
the Respondent had raised these concerns with the Applicant several times as part of the Respondent’s formal review processes over the prior 18 months, and most recently in discussions about supplier engagement matters in February, March and May 2023;
at a meeting on 5 May 2023 the Applicant was notified that as he had failed to demonstrate an improvement in performance, a more formal performance management process may be implemented;
the Respondent considered that the Applicant had failed to demonstrate sufficient improvement and it was concerned about the following aspects of his performance:
oinability to appropriately plan and prioritise work, causing delayed delivery of key business initiatives, poor stakeholder experience and, on occasion, exposing the Respondent to reputational and commercial risks. The Applicant’s engagement with Eighty20 and renewal of the Respondent’s motor vehicle insurance policy were provided as examples;
oineffective communication and a lack of visibility on progress of key business deliverables;
oinconsistency in driving stakeholder engagement; and
olack of ownership and accountability when issues arise, and in proactively seeking to address those;
the Respondent considered he was not performing his role of ‘Manager, Corporate and Governance’ to the standard required;
a formal performance management process would by commenced by implementing a PIP, a copy of which was attached to the letter;
the purpose of the PIP was to work with the Applicant and support him in seeking to improve his performance to the standard reasonably expected for his role;
the Applicant’s performance would be reviewed over the next three months and the Respondent would meet with him on an ongoing basis to provide feedback and guidance on improving performance (in particular, the areas outlined in the PIP);
the Applicant may be subject to disciplinary actions up to and including termination if the Respondent was not satisfied that he was demonstrating sufficient progress during the PIP or his performance had not improved to the standard required.[92]

The Applicant gave evidence that at that time he was managing an excessive workload.[93] The Applicant also said that his team was understaffed, with one team member away on leave and that he was expected to ‘pick up that slack’.[94]

Applicant’s Response to the Performance Improvement Plan

On 13 June 2023 the Applicant responded to the PIP Letter and said, by way of summary:

he was an employee of almost 14 years who took pride in his work, had a strong affinity to the Respondent, its people and purpose;
he was disappointed that the Respondent had determined the standard of his work to be so unsatisfactory that it initialed a formal performance management process;
should the performance management process continue it would impact the trust and confidence he would have in the organisation;
he acknowledged that there were opportunities requiring improvement but considered improvement was most likely to be achieved in a genuinely collaborative process featuring full and consistent feedback from management;
across the prior three years the Corporate and Governance team had, under his leadership, been recognised as achieving many successes and these had not been reflected in the PIP letter or sufficiently recognised in his feedback from management or performance appraisals;
leadership had not acknowledged the difficult performance environment in which he had been working over the past three years, had not observed procedural fairness and had not provided consistent support in clarifying role and performance objectives;
work pressures and resource constraints were significant limitations on his performance;
the objectives of his team were designed to be achieved by three or four permanent positions plus a manager however he had not had more than two other team members since December 2021;
his requests to hire into two vacant permanent positions had been repeatedly declined, which had intensified the work demands of the Applicant and his team;
a direction in his mid-term appraisal to undertake 0.5 FTE of sourcing activity was inconsistent with achievement of all of the other goals articulated in his position description;
work priorities including execution of Statements of Work under master agreements, Labour Hire support and support of operational fleet services should be performed by other teams;
he had not had consistent leadership coaching in his role, feedback was more typically task based and constructive feedback had been limited;
the Head of Procurement role to which he reported had changed over the three years, having been held by four different people across five different periods;
leadership stability and consistent feedback would have been more conducive to high performance;
Mr Tomaras had not fully heard his response to concerns raised at the meeting on 5 May 2023 and the Applicant believed that hearing his response and the results of the pulse survey may have led him to adjust course before escalating from informal to formal performance management;
the PIP Letter contained several vague and negative statements that were not supported by examples;
the example ‘internal customer feedback has also generally remained negative’ conflicted with many of his recent conversations with internal customers, his manager and results of the quarterly survey and he wanted to better understand the information that underlies such statements so he could learn and better respond in the future;
the Respondent’s Procurement Section was a culturally and operationally difficult environment, he experienced low role clarity, excessive urgent demands, inadequate support from management and low job control as a result of other business units’ inability to adequately plan. [95]

The Applicant’s response to the PIP Letter also stated that the process for initiating formal performance management was not aligned with guidance published by the Fair Work Ombudsman in the following respects:

expectations remained unclear at the task level and overall;
the actions and aggressive timeframe for completion were unreasonable;
the PIP was not provided before the meeting and the meeting did not allow time for detailed commentary;
the offer of a clarification meeting the next day provided no opportunity for reflection on the content of the PIP;
little or no support had been offered to accomplish the tasks in the PIP and additional training, mentoring and/or work examples would be useful;
the non-collaborative tone and compressed timeframe of the meeting did not sufficiently allow for his participation;
there was no positive or supportive content in the meeting.

The Applicant requested that:

the performance management process set out in the PIP Letter be cancelled and that further informal performance management discussions be held;
additional information be provided in relation to the issues raised in the letter that lacked actionable detail;
his feedback on issues raised be heard and considered;
any new formal performance management process be designed in good faith, taking into account the workload and operating environment in the development of work priorities.

Commencement of the PIP

Mr Tomaras said he considered the Applicant’s concerns about the PIP, made certain changes to replace one of the PIP deliverables and to amend the timelines given the delay in commencing the PIP, but otherwise assessed the PIP as being appropriate.[96] On 19 June 2023 Mr Tomaras and an Employee Relations Consultant for the Respondent met with the Applicant.[97] Mr Tomaras said he discussed the revised PIP, responded to the matters the Applicant raised in the 13 June 2023 email and reiterated the Respondent’s performance concerns giving rise to the PIP.[98]

The revised PIP commenced on 20 June 2023.[99] Mr Hunter was still on secondment at this time however said he was kept updated on progress.[100] A copy of the PIP was attached to Mr Hunter’s statement and describes the performance issues as follows:

‘Stakeholder Engagement
There has been insufficient proactive engagement with customers to support development of an appropriate pipeline of activity within the corporate portfolio. Feedback from key internal customers has also generally remained negative, in terms of both their experience with the service/advice provided. This has generally been due to poor communication, inconsistent or contradictory advice and lack of responsiveness.
Planning and Prioritisation
A lack of planning and prioritisation has resulted in delays to the delivery of key activities, including fleet outsourcing, labour hire centralisation and Procurement Digital; and timely completion of core accountabilities of the role (e.g. periodic review of the procurement policy and guidelines; procurement activity and oversight of external compliance reporting obligations (e.g. Austender reporting). Robert has been provided with consistent feedback that improvement is required in relation to planning and prioritisation, and to ensure his participation in several working groups (which he has voluntarily joined) can be managed without impacting his people leadership and procurement accountabilities.
Communication and Sharing of Information
On several occasions Robert has not shared or provided transparency of status and progress of activities and projects, and on occasion sought action and approvals from staff without clearly communication (sic) relevant information to support those considerations. Pertinent information and the accurate status of activities has often not been shared with relevant stakeholders in a timely fashion (or, on occasion, at all). In some instances, issues relation to outstanding items have only been identified when others have raised them as part of escalations, including external parties on occasion, or issues have inadvertently come to light. This behaviour has the potential to create increased risks in relation to fulfilling compliance obligations as well as financial management and reputational risks when dealing with Suppliers and external parties.
Accountability
Robert has demonstrated a lack of accountability and ownership of issues in his work. This includes problem identification and resolution of associated issues, with a propensity to defer decisions and responses to others without being proactive in supporting them (especially where there is a clear responsibility for him to support or lead)’.

The PIP included performance improvement targets or tasks under four improvement goals and a further descriptor of the required performance standards relevant to those targets or tasks.

Under the improvement goal ‘Fleet Service’, the PIP required the Applicant to:

conduct an ‘end-to end’ review of processes post outsource, with a view to simplifying and centralising support within procurement (addressing current pain points and recent incidents). The required performance standard was the development of ‘a status tracker of various processes with proposed actions and dates for remediations’;
propose and implement the ‘supplier management approach’ (i.e. ongoing management model with SG Fleet). The performance standard required the Applicant to:
ocomplete, have approved and implement a Contract Management Plan for SG Fleet, clearly identifying the performance management approach; and
oestablish the standing agenda, attendee list and book in supplier meetings for the coming 12 months;
communicate outcomes and implement recommendations with SG Fleet and internal stakeholders and update any reference material to clearly document updates. The performance standard required the Applicant to update fleet management supporting processes and customer reference material and, subject to changes, communicate with impacted staff (both drivers and support partners in Finance and HR).

Under the improvement goal ‘Labour hire services’, the PIP required the Applicant to:

establish a customer education session with relevant updates to support self-service and a new approach, ensuring relevant support partners in Shared Service and HR were engaged and part of the education roll out. The performance standard required the Applicant to:
odevelop and book education sessions; and
ocoordinate and roll out sessions focusing on high volume users first (e.g. IT and PMO);
with relevant Departments, develop a pipeline of activity in the labour hire space to support timely delivery. The performance standard required the Applicant to develop a tracking report capturing the status of expiring arrangements and a pipeline of upcoming requests;
ensure existing ‘preferred’ supplier agreements are managed to support timely engagement and continuity ahead of a broader panel. The performance standard required the Applicant to update and actively monitor a centralised supplier management list.

Under the improvement goal ‘Procurement Pipeline and Operations’, the PIP required the Applicant to:

ensure that the pipeline for the corporate category was up to date and each team member, including the Applicant, had an allocation (i.e. a lead role). The performance standard required the Applicant to update the pipeline capturing the current and planned pipeline of procurement activities with effective resource allocation;
propose an approach for engagement, including a template pack and supporting information and to ‘address coordination with relevant FBPs’. The performance standard required the Applicant to develop a template engagement pack, and agree on an engagement approach to ‘leverage existing FBP interactions with relevant departments’;
engage with departments to forecast upcoming non-ICT and workplace procurement activities, with a ‘particular focus on BK, HR, NI and PS’. The performance standard required the Applicant to develop a portfolio plan outlining an 18 month ‘forward plan of procurement activity based on engagement discussions, contract renewals data, project pipelines and discussion with relevant FBPs’.

Under the improvement goal ‘category leadership and advice, the PIP required the Applicant to:

undertake timely assessment, prioritisation, and allocation of work requests as they arise and relate to the corporate portfolio. The performance standard required the Applicant to ensure work requests were triaged and allocated based on assessed priority (relative to the current pipeline of activity) and that the outcomes of assessments were notified to stakeholders and included in the procurement pipeline;
provide timely, accurate and actionable advice to the business, as it relates to activity in the corporate portfolio. The performance standard required the Applicant to provide a response to stakeholders with actionable outcomes, consistent with the Respondent’s polices and ‘the CPRs’;
ensure routine deliverables, including any reporting obligations residing with the corporate and governance category, were met within agreed timeframes. The performance standard required the Applicant to complete deliverables within agreed/required timeframes.

The PIP indicated that these actions would be supported via the Applicant’s weekly meeting with his manager and the weekly procurement manager’s meeting.

PIP review meeting on 21 June 2023

A second meeting in relation to the PIP took place on 21 June involving the Applicant, Mr Tomaras and Mr Hare.[101]

Mr Tomaras said that matters discussed during this meeting included the requirements of the PIP (including desired outcomes), the Applicant’s concerns about the PIP, the Applicant’s workload for the week ahead and general feedback on the Applicant’s performance.[102]

The Applicant gave evidence that at this meeting he sought more clarity as to the actions and requirements of the PIP and was told that the dates for fixed deliverables were indicative dates for assessment of the deliverables, as opposed to being hard deadlines.[103]

Mr Tomaras said that he informed the Applicant that while the deadlines for the PIP goals were firm, there would remain flexibility to account for other urgent work, should it arise, and unplanned absence.[104]

PIP meetings between 28 June 2023 and 26 July 2023

The Applicant attended subsequent PIP meetings with Mr Tomaras and Mr Hare between 28 June 2023 and 16 July 2023.[105] Mr Tomaras’ evidence was that there were five meetings during this period, with the meeting on 12 July 2023 also forming a part of the FY end of year performance review during which the Applicant was again given a rating of ‘inconsistent year’.[106]

The Sprigg formula was discussed and refined in Ellawala v Australian Postal Corporation[305] as follows:

“[31] The principles applicable to determining an amount to be ordered in lieu of reinstatement are dealt with in Sprigg. In that case the Full Bench endorsed the following approach:

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.

[32] Any amount provisionally arrived at by application of these steps is subject to whether offsetting weight is given to other circumstances, including those that need now to be taken into account under paragraphs 170CH(7)(a), (b) and (c). The legislative cap on the amount able to be ordered is then applied pursuant to ss.170CH(8) and (9).

[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:

“...we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.”

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the “anticipated period of employment”. This amount is then reduced by deducting monies earned since termination. Only monies earned during the period from termination until the end of the “anticipated period of employment” are deducted. An example may assist to illustrate the approach to be taken.

[35] In a particular case the Commission estimates that if the applicant had not been terminated then he or she would have remained in employment for a further 12 months. The applicant has earned $3,000 a month for the 18 months since termination, that is $54,000. Only the money earned in the first twelve months after termination - that is $36,000 - is deducted from the Commission’s estimate of the applicant’s lost remuneration. Monies earned after the end of the “anticipated period of employment”, 12 months after termination in this example, are not deducted. This is because the calculation is intended to put the applicant in the financial position he or she would have been in but for the termination of their employment.

[36] The next step is 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.

…

[45] In relation to the fourth step set out in Sprigg we note that the usual practice is to settle a gross amount and leave taxation for determination.” (my emphasis, references omitted)

In Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe,[306] the Full Bench stated that in quantifying compensation, it is necessary to set out with some precision the way in which the various matters required to be taken into account under s.392(2) (and s.392(3) if relevant), and the steps in the Sprigg formula, have been assessed and quantified. The Full Bench also proffered that the way in which a final compensation amount has been arrived at should be readily apparent and explicable from the reasons of the decision-maker.

I will assess compensation having regard to these matters.

Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed – s.392(2)(c)

As stated by a majority of the Full Court of the Federal Court, “[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.”[307]

When calculating the remuneration that the Applicant would have received or would have been likely to receive if the Applicant had not been dismissed, the intention is to put the Applicant in the financial position they would have been in but for the unfair dismissal.

While the reason for the dismissal was poor performance and this constituted a valid reason, I have earlier found that the the Applicant was not provided with the details of what particular aspects of the PIP he had not met so that he could consider and provide a response to the specific concerns that the Respondent still had about his performance at the time the Show Cause Letter was provided to him. The Applicant would have reasonably held a belief at the mid-point review of the PIP that he was on track for successful completion of the PIP. The feedback after the mid-point review did not make clear that he was ‘off-track’ and at risk of having his employment terminated prior to the 4 October 2023 meeting and the show cause process would have come as a shock to him. If the Respondent’s assessment of the Applicant’s performance had changed following the mid-point review such that he was off-track and at risk of having his employment terminated this should have been clearly communicated to him. I consider it likely that if the Respondent did so, the Applicant would have shown some degree of improvement during the second half of the PIP and this would have given rise to continued employment for a further period of time, particularly considering the Applicant had shown an uplift in performance during the first half of the PIP.

However the Respondent submitted that to the extent that the PIP included specific tasks, these tasks were not an exhaustive statement of the duties the Applicant was required to perform and he was also expected to continue to perform all other duties of the Role set out in the Position Description. It does appear that, particularly after the mid-point review of the PIP, the Respondent has raised concerns about matters falling outside the specific PIP requirements. These include:

concerns raised in the meeting on 15 August 2023 about two labour hire services agreements reaching their expiry, and the Applicant being ‘uncertain’ about these;
concerns raised in the meeting on 15 August 2023 about the Applicant’s uncertainty in relation to progress towards the establishment of and the Respondent’s potential participation in the Whole of Australian Government People Panel;[308]
concerns raised in the meeting on 23 August 2023 that a significant high profile project was looking like it was delayed;[309]
concerns at the 20 September 2023 meeting that the Applicant was not meeting expectations in relation to the development of a handover document and process maps to support the fleet services transition. I have earlier found that this requirement was only clearly communicated to the Applicant on 13 September 2023 and it was not clear that this was a requirement of the PIP as asserted by the Respondent. Particular concerns were raised during the meeting on 20 September 2023 that the fleet service transition items due to be delivered by 15 September 2023 had been delivered in draft on 18 September 2023 with no advanced notice of the delay and that the items were incomplete and required a significant amount of further work;
concerns expressed in a meeting on 22 September 2023 that Mr Hunter was having to provide too much guidance to the Applicant in the development of a handover document.

It is apparent that the Respondent had expectations of the Applicant that extended beyond the PIP and had concerns that the Applicant was not meeting them. If the Applicant had shown uplift in performance during the second part of PIP, this would likely have resulted in a further period of employment and continued performance management. However the Respondent’s ongoing concerns suggest that the gap between the Applicant’s performance and Respondent’s expectations was going to be a difficult one for the Applicant to bridge. It is apparent that the Respondent wanted the Applicant to work in a more self-directed way in his capacity as a manager, there was a continued lack of alignment between the Applicant and Respondent about what work needed to be prioritised and how it needed to be undertaken, and it is unlikely that this would have been remedied without further performance management or that the level of improvement would have been so substantial such that the Applicant would not have been terminated at some time by another means following further performance management measures. In these circumstances it find that that the Applicant’s employment was likely to continue for a further period of eight weeks.

Findings

Having regard to the above matters I find that:

· the Applicant’s employment was likely to continue for a further period of eight weeks (i.e. up until 6 December 2023); and

· the remuneration likely to have been received by the Applicant during that period would have been $23,643.85. This has been calculated by dividing the Applicant’s annual salary of $153,685 by 52 ($2,955.48) and multiplying this by eight.

I am satisfied that the Applicant has suffered some financial loss as a result of his dismissal between the period that he was dismissed and the end of the eight week period across which I anticipate his employment would have continued.

Remuneration earned – s.392(2)(e) and income reasonably likely to be earned – s.392(2)(f)

Remuneration earned from the date of dismissal to the date of any compensation order is required to be taken into account under s.392(2)(e) of the FW Act. Remuneration reasonably likely to be earned from the date of any compensation order to the date the compensation is paid is also required to be taken into account under s.392(2)(f) of the FW Act. Any remuneration likely to be earned after that date to the end of the period of anticipated employment determined for the purpose of s.392(2)(c) is a relevant amount to be taken into account under s.392(2)(g) in accordance with the Sprigg formula.

The Applicant indicated during the determinative conference that he had earned $18,270.00, being earnings received from ad hoc work between November 2023 and January 2024 and secured full-time employment on 8 January 2024 and as at the date of the hearing had received a net payment of $8,999.00 from this ongoing full-time employment. This was not challenged by the Respondent. The salary in respect of the Applicant’s new employment is $195,000 per annum exclusive of superannuation. Applying a divisor of 52, this equates to $3,750 per week. Assuming the Applicant continues to receive $3,750.00 per week, I find that the amount of remuneration earned by the Applicant from employment or other work during the period since the dismissal is $142,020 until the date of the order, comprised of $123,750 (earned between 8 January and 23 August 2024) in earnings from his new role and $18,270 in other earnings, excluding payment of notice.

Based on the Applicant securing alternative employment and having been paid an amount of $3,750.00 per week, I am satisfied that the amount of income reasonably likely to be earned by the Applicant between the making of the order for compensation and the payment of compensation is a further $7,500.

As the Applicant commenced receiving remuneration from work in or around November 2023 and this is before the time when his employment would, in my view, have ended (i.e. 6 December 2023 being a period of 8 weeks from the time of dismissal), earnings between 11 October 2023 and 6 December 2023 should reduce the amount of compensation ordered. Income was earned in respect of the period between 27 November 2023 and 3 December 2023 in the amount of $3,480. Further income was earned between the period 4 December 2023 and 10 December 2023 in the amount of $4,350 (equating to $870 a day for a period of 5 working days). The income earned between 4 and 6 December 2023 inclusive is therefore calculated to amount to $2610. The total amount earned between 27 November 2023 and 6 December 2023 was $6,090.

In mathematical terms, this means deducting the actual and likely income for the Applicant for the 8 week period from the date of his dismissal ($6,090) from the amount calculated for the purpose of s.392(2)(c) ($23,643.85), which leaves $17,553.85 gross in compensation. The Applicant was also paid four weeks in lieu of notice, further reducing the amount by $11,821.92, leaving $5,731.92 gross in compensation.

Length of service – s.392(2)(b) and any other matters – s.392(2)(g)

The Applicant was a long serving employee with approximately 14 years service.

I do not consider there is any basis for any deduction for length of service or contingencies in this matter and it will be left to the Respondent to deduct taxation required by law.

Effect of the order on the viability of the Respondent’s enterprise – s.392(2)(a)

The evidence before the Commission does not establish that an order for compensation would have an effect on the viability of the employer’s enterprise.

Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal – s.392(2)(d)

The Applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal.[310] What is reasonable depends on the circumstances of the case.[311]

The Applicant submitted that following his dismissal he applied for three roles and had six interviews in total for those roles. The Applicant obtained work on an ad hoc basis in or around November 2023. The Applicant was successful in obtaining alternative employment on a full time ongoing basis on 8 January 2024.

I am satisfied that the Applicant took reasonable steps to mitigate his loss by actively seeking and ultimately obtaining alternative employment.

Misconduct – s.392(3)

I am not satisfied that the Applicant engaged in misconduct so no deduction is required under s.392(3) of the FW Act.

Compensation cap – s.392(5) & (6)

I find that the total amount of the remuneration received by the Applicant and to which he was entitled during the 26 weeks immediately before the dismissal was $76,842.50.

The high income threshold immediately before the dismissal was $167,500. Half of that amount is $83,750.00.

The amount of compensation ordered by the Commission must therefore not exceed $76,842.50 in wages.

Instalments – s.393

I do not consider that there is any reason for compensation to be made by way of instalments.

Shock, Distress – s.392(4)

The amount of compensation calculated must not and will not include a component for shock, distress, humiliation or other analogous hurt caused to the Applicant by the manner of his dismissal.

Conclusion

I am satisfied that the Applicant was protected from unfair dismissal, that the dismissal was unfair and that an order for compensation equating to $5,731.92, less taxation to be deducted as required by law, is appropriate having regard to all the circumstances of the case.

An order requiring the payment of this amount within 14 days will be issued with this decision.

COMMISSIONER

Appearances:

Mr R McLean on his own behalf.
Ms K Korbel and Ms N Linton on behalf of the Respondent.

Hearing details:

2024.
February 12.
Sydney (in person).

[1] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[2] Respondent’s Outline of Submissions at [9].

[3] Applicant’s outline of argument: merits.

[4] Applicant’s outline of argument: merits.

[5] Applicant statement of evidence at [2].

[6] Hunter at [2], [12].

[7] Tomaras at [9].

[8] Hunter at [13].

[9] Tomaras at Annexure A.

[10] Hunter at [3].

[11] Hunter at [4], Tomaras at [10].

[12] Hunter at [2].

[13] Hunter at [2].

[14] Hunter at [4].

[15] Hunter at [5].

[16] Tomaras at [10].

[17] Tomaras at [10].

[18] Hunter at Annexure B.

[19] Hunter at [19].

[20] Hunter at [20].

[21] Hunter at [21].

[22] Hunter at [2], [11].

[23] Hunter at [13].

[24] Hunter at [14].

[25] Hunter at [15].

[26] Tomaras at [11].

[27] Tomaras at [11].

[28] Tomaras at [11].

[29] Tomaras at [11].

[30] Tomaras at [12].

[31] Tomaras at [13].

[32] Tomaras at [13].

[33] Tomaras [14].

[34] Tomaras at Annexure C.

[35] Tomaras at Annexure C.

[36] Tomaras at [15[.

[37] Hunter at [16].

[38] Hunter at [16].

[39] Hunter at [16].

[40] Hunter at [16].

[41] Hunter at [17].

[42] Hunter at [17].

[43] Hunter at Annexure A.

[44] Hunter at [18].

[45] Hunter at [18].

[46] Hunter at Annexure A.

[47] Hunter at [24].

[48] Tomaras at [17].

[49] Tomaras at [18].

[50] Tomaras at Annexure D.

[51] Tomaras at Anexure D.

[52] Hunter at [25], Tomaras at [20].

[53] Hunter at [27].

[54] Hunter at [27].

[55] Hunter at [27].

[56] Hunter at [28].

[57] Tomaras at [22].

[58] Huntar at [31].

[59] Hunter at [32].

[60] Hunter at [32].

[61] Hunter at [33].

[62] Hunter at [34].

[63] Applicant at [4].

[64] Applicant at [5].

[65] Applicant at [4].

[66] Tomaras at [23].

[67] Tomaras at [24].

[68] Tomaras at [25].

[69] Tomaras at [25].

[70] Tomaras at [27].

[71] Tomaras at [27].

[72] Tomaras at Annexure F.

[73] Tomaras at [28].

[74] Tomaras at [28].

[75] Tomaras at [29].

[76] Tomaras at [29].

[77] Tomaras at Annexure G.

[78] Tomaras at Annexure G.

[79] Tomaras at [32].

[80] Tomaras at [32].

[81] Hunter at [35].

[82] Hunter at [35].

[83] Hunter at [36].

[84] Hunter at [37].

[85] Hunter at [38].

[86] Huner at [40].

[87] Tomaras at [35].

[88] Hunter at [41].

[89] Applicant at [6], Tomaras at [36].

[90] Applicant at [6], Tomaras at [36].

[91] Tomaras at [36].

[92] Applicant at Annexure C, Tomaras at Annexure H.

[93] Applicant at [8].

[94] Applicant at [8].

[95] Applicant at [9], Document 4; Tomaras at Annexure I.

[96] Tomaras at [38].

[97] Tomaras at [39].

[98] Tomaras at [39].

[99] Hunter at [41], Applicant at [10], Tomaras at [41].

[100] Hunter at [42].

[101] Applicant at [11].

[102] Tomaras at [48].

[103] Applicant [11].

[104] Tomaras at [48].

[105] Applicant at [11].

[106] Tomaras at [44].

[107] Tomaras at [48].

[108] Tomaras at [48].

[109] Tomaras at [48].

[110] Tomaras at [48].

[111] Tomaras at [48].

[112] Applicant at [11].

[113] Applicant at [11].

[114] Applicant at [11].

[115] Applicant at [11].

[116] Applicant at [11], Tomaras at [50].

[117] Tomaras at [49].

[118] Tomaras at [50].

[119] Applicant at [11].

[120] Tomaras at [51].

[121] Tomaras at [51].

[122] Tomaras at [51].

[123] Hunter at [43].

[124] Hunter at [43].

[125] Hunter at Annexure E.

[126] Hunter at Annexure E.

[127] Applicant at [11].

[128] Hunter at [44].

[129] Hunter at [51].

[130] Applicant at [11].

[131] Applicant at [11].

[132] Hunter at [46], Tomaras at [52].

[133] Hunter at [46], Tomaras at [52].

[134] Hunter at [53].

[135] Tomaras at [52].

[136] Hunter at [11].

[137] Hunter at [11], Tomaras at [54]..

[138] Hunter at [49].

[139] Tomaras at [54].

[140] Tomaras at [54].

[141] Tomaras at [54].

[142] Tomaras at [54].

[143] Hunter at [48].

[144] Hunter at [50].

[145] Hunter at [50].

[146] Hunter at [52].

[147] Hunter at [52].

[148] Hunter at [52].

[149] Hunter at [53].

[150] Hunter at [54].

[151] Applicant at [11].

[152] Applicant at [11].

[153] Applicant at [11].

[154] Hunter at [55] and [56], Tomaras at [57].

[155] Tomaras at [57].

[156] Tomaras at [57].

[157] Tomaras at [58].

[158] Tomaras at [59].

[159] Hunter at [57].

[160] Hunter at [57].

[161] Tomaras at [56].

[162] Tomaras at [61].

[163] Hunter at [59].

[164] Hunter at [60].

[165] Hunter at [60].

[166] Hunter at [61].

[167] Hunter at [61].

[168] Hunter at [63].

[169] Hunter at [64].

[170] Hunter at [64].

[171] Hunter at [65], Annexure F.

[172] Hunter at [66].

[173] Hunter at [66].

[174] Hunter at [67].

[175] Hunter at [67].

[176] Hunter at [68].

[177] Hunter at [68].

[178] Hunter at [70].

[179] Applicant at [12].

[180] Applicant at [12].

[181] Applicant at [12].

[182] Applicant at [13], Hunter at [70].

[183] Applicant at [13].

[184] Applicant at [13].

[185] Applicant at [13].

[186] Hunter at [70].

[187] Hunter at [71].

[188] Hunter at [75].

[189] Hunter at [72] – [73].

[190] Applicant at [14].

[191] Tomaras at [62].

[192] Tomaras at Annexure L.

[193] Hunter at [76].

[194] Hunter at [77].

[195] Hunter at [78], Annexure H; Tomaras at [65].

[196] Applicant at [16].

[197] Applicant at [16].

[198] Applicant at [17].

[199] Applicant at [18].

[200] Applicant at [19].

[201] Applicant at Annexure F.

[202] Applicant at Annexure F.

[203] Hunter at Annexure I.

[204] Hunter at [79].

[205] Applicant at Annexure F.

[206] Applicant at Annexure F.

[207] Applicant at Annexure F.

[208] Hunter at [80].

[209] Tomaras at [67].

[210] Tomaras at [67].

[211] Applicant at [23], [4].

[212] Applicant at [23].

[213] Hunter at [81].

[214] Hunter at [84].

[215] Hunter at [85].

[216] Tomaras at [68].

[217] Tomaras at [69].

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

[219] Ibid.

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

[221] Respondent’s outline of submissions at [9].

[222] [2021] FWCFB 533 at [42].

[223] Syed Rizvi v Salini Australia Pty Ltd [2023] FWC 3112; A v The Commonwealth of Australia, represented by Centrelink [2011] FWA 3532; Shane McGrath v Waco Kwikform Limited [2021] FWC 1414; Quttrocchi v Monsanto Australia Limited [2009] FWA 882.

[224] Hunter at [17].

[225] Hunter at [18].

[226] Tomaras at [12] – [13]/

[227] Tomaras at [18].

[228] Hunter at [27].

[229] Hunter at [27].

[230] Huntar at [31].

[231] Hunter at [33].

[232] Tomaras at [32].

[233] Applicant at [11], Tomaras at [50].

[234] Hunter at Annexure E.

[235] Applicant at [11].

[236] Tomaras at [57].

[237] Tomaras at [57].

[238] Tomaras at [58].

[239] Hunter at [67].

[240] Hunter at [67].

[241] Hunter at [72] – [73].

[242] Hunter at Annexure E.

[243] Hunter at Annexure F.

[244] Respondent’s submissions at [23].

[245] Respondent’s submissions at 27(a).

[246] Hunter at [11], Tomaras at [54]..

[247] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

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

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

[250] Applicant’s outline of submissions.

[251] Respondent’s submissions at [33].

[252] Respondent’s submissions at [34].

[253] Respondent’s submissions at [35].

[254] Respondent’s submissions at [36].

[255] Hunter at [77].

[256] Hunter at [78], Annexure H; Tomaras at [65].

[257] Tomaras at [64].

[258] Applicant at [16].

[259] Applicant at [17].

[260] Applicant at Annexure F.

[261] Hunter at Annexure I.

[262] Hunter at [79].

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

[264] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

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

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

[267] Applicant at Annexure F.

[268] Respondent’s submissions at [38] – 41].

[269] Tomaras at [64].

[270] Hunter at Annexure I.

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

[272] Annetta v Ansett Australia Print S6824 (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000), [16].

[273] McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd [2013] FWC 3034, [32].

[274] Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].

[275] Ibid.

[276] Applicant’s outline of submissions.

[277] Applicant’s outline of submissions

[278] Respondent’s submissions at [47].

[279] Respondent’s submissions at [48].

[280] Respondent’s submissions at [48], Tomaras at [36].

[281] Respondent’s submissions at [48].

[282] Respondent submissions at [48].

[283] Respondent submissions at [48].

[284] Respondent submissions at [48].

[285] Respondent submissions at [49].

[286] Respondent submissions at [50].

[287] Jetstar v Meetson-Lemkes[2013] FWCFB 9075, [68].

[288] Respondent’s submissions at [54].

[289] Respondent’s submissions at [55].

[290] Respondent’s submissions at [55].

[291] Respondent’s submissions at [59].

[292] Respondent’s submissions at [60].

[293] Respondent’s submissions at [61].

[294] Respondent’s submissions at [61].

[295] Respondent’s submissions at [57], [36].

[296] Kioa v West [1985] HCA 81, [11] (per Gibbs CJ).

[297] Ibid, [22] (per Wilson J).

[298] Telstra Corporation v Streeter [2008] AIRCFB 15, [27].

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

[300] Taylor v C-Tech Laser Pty Ltd[2013] FWC 8732, [58].

[301] Seitz v Ironbay Pty Ltd t/a City Beach IGA [2018] FWCFB 1341, [24].

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

[303] Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].

[304] [2018] FWC 679.

[305] Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000)

[306] [2017] FWCFB 429 at [43].

[307] He v Lewin [2004] FCAFC 161, [58].

[308] Tomaras at [54].

[309] Hunter at [52].

[310] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].

[311] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.

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