Samir Sofat v Berkshire Hathaway Specialty Insurance Company - [2021] FWC 957

[2021] FWC 957

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Samir Sofat

Berkshire Hathaway Specialty Insurance Company

(U2020/11792)

Deputy President Boyce

SYDNEY, 7 JULY 2021

Application for an unfair dismissal remedy.

Introduction

Mr Samir Sofat (Applicant) has filed a Form F2 with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy. The Applicant claims that he was dismissed from his employment with Berkshire Hathaway Specialty Insurance Company (Respondent) on 14 August 2020, and that his dismissal was “unfair” within the meaning of Part 3-2 of the Fair Work Act 2009 (Act).

The Respondent asserts that the Applicant was dismissed due to unsatisfactory work performance. In short, the Respondent says that the dismissal was both substantively and procedurally “fair”.

Following the receipt of submissions and evidence in accordance with directions made, I held a hearing in Sydney to resolve the application. Mr K Raghavan of counsel appeared with permission for the Applicant. Mr D Lloyd of counsel, instructed by Ms C Ball (Solicitor, Ashurst), appeared with permission for the Respondent.[1]

Factual Background

The Applicant relies upon the following evidence:

(a) Witness Statement of Samir Raj Sofat; and
(b) Witness Statement of Samir Raj Sofat in-reply.
(collectively, Sofat Statements)

The Respondent relies upon the Witness Statement of Penny Morgan-Payler.

I note that the parties contested much of the factual background as it relates to the Applicant’s conduct and performance. That said, the parties do not appear to be in contest as to the following issues:

(a)       The Respondent conducts an insurance business, trading as Berkshire Hathaway Specialty Insurance. It is a branch of an overseas company incorporated in Nebraska, USA. Its products include healthcare liability insurance for doctors and healthcare organisations
(b)       On 26 November 2015, the Applicant was employed by the Respondent as an Underwriter. The employment relationship was subject to a written contract of employment, which was accepted by the Applicant on 1 December 2015. At this time, the Applicant held a Bachelor’s Degree in Commerce and Science, and a Master’s Degree in Business and Risk Management. Further, the Applicant already had several years’ experience as an indemnity insurance underwriter for another employer.
(c)       On 1 June 2017, the Applicant was promoted by the Respondent to the position of Senior Underwriter, Healthcare.
(d)       The Applicant reported to the Respondent’s Head of Healthcare. This role was held by Mr Tony Bainbridge until March 2017. From August 2017, Ms Morgan-Payler took up this role, where she remained as the Applicant’s manager.
(e)       On 21 July 2020, Ms Morgan-Payler sent the Applicant an email requesting him to attend a meeting with her, and Ms Angela Collett (Human Resources), the following day. In that email, Ms Morgan-Payler informed the Applicant that the meeting was to discuss his ongoing employment with the Respondent. He was invited to bring a support person.
(f)       The Applicant responded to that email, asking Ms Morgan-Payler to provide him with reasons why his continued employment was being called into question. The Applicant also requested that a colleague from the healthcare claims team be present as his support person. Ms Morgan-Payler later responded, advising that relevant reasons would be discussed at the meeting. Further, Ms Morgan-Payler refused to allow the person nominated by the Applicant to act as his support person. The Applicant again wrote to Ms Morgan-Payler, asking her to reconsider that decision. Ms Morgan-Payler responded, confirming her decision, but rescheduled the meeting to a later date to allow the Applicant time to find an alternative support person.
(g)       On 23 July 2020, the Applicant attended a meeting (Performance Meeting) with the following persons:

i.         Ms Morgan-Payler;
ii.        Ms Collett; and
iii.       Mr Matthew Clark (Head of Executive and Professional), who acted as the Applicant’s support person.

During this meeting, Ms Morgan-Payler expressed concerns regarding the Applicant’s performance. She asked the Applicant for a response. The Applicant disagreed with Ms Morgan-Payler’s assessment of his performance, and asked that the issues raised be put in writing. The Applicant said he would then respond to those matters in writing.
(h)       On 27 July 2020, Ms Morgan-Payler sent the Applicant a letter outlining her concerns about his performance (Performance Letter). Relevantly, the Performance Letter reads:
“As requested in our conversation on the 23rd July 2020 I have provided in writing the key areas where your performance hasn’t met expectations over the past eight months.
Since November 2019 we have had a number of conversations in relation to your performance with more formal conversations occurring on 19th November 2019, 7th January 2020, 6th February 2020, 4th June 2020 and 17th July 2020. In addition, during our weekly meetings I have provided you with feedback on your performance and what was expected of you and where you were not meeting expectations. From the 6th of March 2020 on a monthly basis I also provided you a document that I referred to as “One on One catch up sheet.” This document itemised outstanding work items and sought your feedback on progression to date on the deliverable items, I also added my comments to be clear on expectations of what was required from you.
During these meetings we have been discussing the following performance concerns and items for you to deliver:
1.           The implementation of a strategic plan to build the healthcare business in NSW, QLD & WA …
2.           Your ability to complete tasks assigned at the level required of a senior underwriter …
3.           Your behaviour in internal and external meetings where your behaviours has been observed to not be in line with our values …
4.           Loss of confidence in your alignment with our underwriting approach and business direction that we (myself, global head of Healthcare, and our local CEO) have determined best for the Healthcare business …”.

(i)        I note that in regard to the enumerated list above, Ms Morgan-Payler provides a number of examples in relation to each. The Applicant contests the veracity, relevance, or characterisation of those examples.
(j)        On 3 August 2020, the Applicant wrote a letter to Ms Morgan-Payler, whereby the Applicant responded to each of the particular concerns Ms Morgan-Payler raised in the Performance Letter (Response Letter).
(k)       On 10 August 2020, the Applicant attended a meeting (Termination Meeting) with the following persons:
i.         Ms Morgan-Payler;
ii.        Ms Collett; and
iii.       Mr Clark, who again acted as the Applicant’s support person.

During this meeting, Ms Morgan-Payler informed the Applicant that she had resolved to terminate his employment, with his last day being 14 August 2020.
(l) Following that meeting, Ms Morgan-Payler provided the Applicant with a letter (Termination Letter). Relevantly, that letter reads:

“We [the Respondent] consider that your performance continues to be unsatisfactory and have decided to terminate your employment for the following reasons:
1. Your inability to define or implement a strategic plan to build the healthcare business in NSW, QLD and WA;
2. Your inability to complete tasks assigned at the level required of a senior underwriter;
3. Your behaviour in internal and external meetings where your behaviours have been observed to not be in line with our values; and
4. Our loss of confidence in your alignment with our underwriting approach and the business direction that we (myself, global head of Healthcare, and our local CEO) have determined best for the Healthcare business.

You are entitled to one month’s notice which will be paid in lieu. Your final day of work will be Friday, 14th August 2020. On or around the 25th August 2020, you will be paid your final pay together with any accrued but untaken annual leave”.

(m) At the time of his dismissal, the Applicant was on a salary of $150,000.00 plus superannuation and bonuses. The Banking, Finance and Insurance Award 2020 applied to the Applicant’s employment with the Respondent.

Statutory provisions

Section 385 of the Act reads:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

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

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

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

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

The parties are not in dispute as to the following:

(a)       The unfair dismissal application was made within the period required by s.394(2) of the Act.
(b)       The Applicant is a person protected from unfair dismissal within the meaning of s.382 of the Act.
(c)       The Applicant had been “dismissed” by the Respondent within the meaning of s.386 of the Act.
(d)       The Small Business Fair Dismissal Code (as provided for in s.388 of the Act) does not apply.
(e)       The Applicant’s dismissal was not a case of genuine redundancy within the meaning of s.389 of the Act.

I accept and make findings consistent with the foregoing position of the parties.

Section 387 of the Act provides what matters must be taken into account by the Commission in determining whether a dismissal was harsh, unjust or unreasonable:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

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

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant”.

I turn to consider each of these matters.

s.387(a) — Whether there was a valid reason for the Applicant’s dismissal which is related to his capacity or conduct

In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”, and should not be “capricious, fanciful, spiteful or prejudiced”.[2] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[3]

Where a dismissal relates to an employee’s conduct, the reason for dismissal might be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur, or it did occur, but did not justify termination.[4] The question of whether alleged conduct took place, and what it involved, is to be determined by the Commission on the basis of the evidence in the proceedings before it.[5]

Where a dismissal relates to an employee’s capacity (i.e. where the reason is associated or connected with the ability of an employee to do their job),[6] and there is a dispute as to whether the employee possessed the requisite capacity to perform their job, it is for the Commission to resolve that disputed issue as a matter of fact.[7]

In these proceedings the Respondent relies upon the reasons set out in the Termination Letter (as extracted above in this decision) as being valid reasons for the Applicant’s dismissal. In this regard, the Respondent submits that such reasons concern the Applicant’s performance, and are individually or combined “sound, defensible or well-founded” reasons for dismissal.

The Applicant submits that none of the reasons relied upon by the Respondent have any substance. Further, the Applicant makes the following submissions generally in regard to ‘valid reason’:

(a)       Where the Respondent’s decision to dismiss the Applicant is based upon matters relating to his performance, that reason must be assessed in the context of the Applicant’s overall performance during his employment with the Respondent.
(b)       For the first four years of his employment, the Respondent recognised the Applicant as a high performer. The Applicant played an integral role in the establishment and growth of the Respondent’s healthcare liability insurance business. He consistently received substantial performance bonuses (between 100% to 250% of his target bonus) and pay increases, as well as a significant promotion, during this period. The payment of these bonuses reflected the volume and high quality of the Applicant’s work. He also received positive feedback from his managers, and was sponsored by senior executives of the Respondent to attend events as an emerging leader within the business.
(c)       The Respondent placed “extraordinarily high expectations” upon their employees. The fact that the Applicant’s performance over several years exceeded even those extraordinary expectations is telling. Further, the extraordinary nature of the expectations that the Respondent placed upon its employees must be kept in mind when it comes to assessing the Respondent’s reasons for dismissing the Applicant – namely, that his performance during the first half of 2020 did not ‘meet expectations’.[8]

Given the highly contested nature of each of the reasons identified by the Respondent, it is appropriate that I summarise the arguments concerning each reason for dismissal in turn.

Applicant’s alleged inability to define or implement a strategic plan to build the Respondent’s healthcare business in NSW, QLD and WA

The Applicant made the following submissions:[9]

(a) The level of generality with which this complaint is expressed makes it almost impossible to identify what precisely is being alleged in terms of Applicant’s performance (i.e. what is it that the Applicant did that he ought not have done, or what did he not do that he ought to have done). The opacity of this allegation is important, given the Applicant’s evidence as to the lack of any specific guidance or direction he received from Ms Morgan-Payler. The Applicant’s evidence was relevantly to the following effect:

(i)        there were various market-based and commercial factors which served as impediments to the Respondent being able to win new business in the medium/large medical malpractice sector in the states assigned to the Applicant;[10]
(ii)       the Applicant did his best to nurture existing broker relationships and to build new ones, but “despite being in contact with numerous new brokers [he was] yet to uncover sizeable pockets of appropriate risks”;[11] and
(iii)      whilst Ms Morgan-Payler told him that she wanted him to “focus on trying to grow the business”, she had no concrete ideas herself, and gave the Applicant no useful direction as to how to go about doing so.[12]

(b) The Applicant’s observations are borne out by Ms Morgan-Payler’s evidence. Her statement is replete with criticisms (generally expressed) to the effect that Applicant’s did not “implement a strategic plan to build the medical malpractice healthcare business in his assigned States”,[13] or “proactively identify and pursue new opportunities in the medical malpractice business”,[14] but is short on detail and substance. Beyond general assertions of the kind referred to above, Ms Morgan-Payler offers virtually no specific and concrete examples of the aspects of Applicant’s conduct or performance that were unsatisfactory.

(c) On the few occasions that Ms Morgan-Payler does identify with any specificity her complaint as to Applicant’s performance, the evidence shows that the complaint has no substance. For example, Ms Morgan-Payler alleges that the Applicant did not contact enough brokers, including brokers Ms Morgan-Payler had asked him to contact.[15] Indeed, it is apparent that Applicant’s alleged failure to sufficiently network with brokers during the first half of 2020 is the essential complaint to which this alleged reason for the termination reduces.[16]

(d) The problem is that the Applicant’s evidence demonstrates that he did in fact contact numerous brokers, including the broker’s which Ms Morgan-Payler asserts he did not contact,[17] i.e. to the extent those brokers are actually identified by Ms Morgan-Payler.[18]

(e)       It is to be noted, in that respect, that Ms Morgan-Payler’s central allegation that the Applicant was not contacting brokers is based upon no more than an assumption that if the Applicant did not inform her of each and every time he made contact with a broker, no such contact must have occurred.[19] Such an assumption was unfair in circumstances where:
(i)        Ms Morgan-Payler never informed the Applicant that it was a requirement of his job to inform her of each and every time he made contact, or sought to make contact, with a broker;[20]
(ii)      it was unreasonable to expect the Applicant to have done so given the expectation that he work with a high degree of autonomy, and subject to limited supervision;[21]
(iii)      there is no evidence that Ms Morgan-Payler ever specifically asked the Applicant whether or not he had contacted the particular brokers that she now alleges he did not contact;
(iv)      Ms Morgan-Payler never informed the Applicant that she was assuming that he was not contacting those brokers, and certainly never told him she regarded that matter as sufficiently serious to put his employment in jeopardy; and
(v)       it ought to have been obvious to Ms Morgan-Payler, as she eventually conceded in cross-examination,[22] that it was possible that the Applicant was in fact contacting relevant brokers, albeit that those contacts had not manifested in new opportunities and, as such, the Applicant did not inform her of them.

(f) In any event, Ms Morgan-Payler’s assumption that the Applicant did not make efforts to contact brokers cannot stand in the face of direct and uncontradicted evidence from the Applicant to the contrary. Given the centrality (to the Respondent’s case) of the allegation that the Applicant did not sufficiently pursue and contact brokers,[23] this matter is sufficient in and of itself to warrant a finding that no valid reason existed for the Applicant’s dismissal.

(g) There are, however, a number of further matters which illustrate the unreasonableness in this alleged reason for dismissal, as follows:

(i) First, it is not suggested by the Respondent that the Applicant’s dismissal could be justified by reference to the ultimate outcome in terms of growth in his written premiums, as opposed to Applicant’s conduct in seeking to contact and pursue opportunities with brokers.[24] Ms Morgan-Payler acknowledged that it would not have been fair or reasonable to judge the Applicant by reference to his written premiums,[25] and in effect denied that the Applicant’s gross written premiums were relevant to her assessment of his performance in 2020.[26] Albeit, this is contradicted by the documentary evidence.[27] In any event, it is to be emphasised that on the Respondent’s own case, its concern was limited to whether or not the Applicant was making a sufficient effort to identify and pursue opportunities with new brokers, as opposed to the ultimate outcome of those efforts.

(ii) Secondly, the Applicant’s role changed, on numerous occasions during the first half of 2020, both in terms of the types of organisations he was responsible for, and the States that were assigned to him.[28] For reasons which Ms Morgan-Payler was unable to explain, this matter was not accurately disclosed in her statement.[29]

(iii) Thirdly, Ms Morgan-Payler’s complaint about the Applicant’s broker engagement plan has no substance.[30] The Applicant’s plan was no less “detailed” or “strategic”[31] than Ms Morgan-Payler’s own plan.[32] Further, none of the complaints which Ms Morgan-Payler now makes of the Applicant’s plan were raised by her with him at the time she received it.[33] Moreover, the uncontested evidence is that in March/April 2020, the Applicant asked Ms Morgan-Payler if he could see the broker plan that she was working on in order to get some direction as to what was expected,[34] but Ms Morgan-Payler never provided same to him.[35]

(iv) Fourthly, notwithstanding that a core aspect of Applicant’s role involved networking with new brokers,[36] in assessing his performance and making the decision to dismiss him, the Respondent made no allowance for the impact of the COVID-19 pandemic and consequent lockdowns.[37] Ms Morgan-Payler’s attempt to justify that position was illogical and should be rejected.[38] This is a significant matter that, in and of itself, warrants the conclusion that the Applicant’s dismissal does not have a valid reason associated with it.

(h) It follows that the central complaint upon which Respondent relies by way of justification for Applicant’s dismissal has no substance.

The Respondent, in closing submissions, highlighted the following evidence:

(a) Ms Morgan-Payler succinctly explained what was involved in pursuing new opportunities to grow the medical malpractice business as, first, inform the market and brokers that the Respondent had changed its minimum premium strategy, and second, identify and contact new brokers.[39]

(b) At a meeting with the Applicant on 19 November 2019, Ms Morgan-Payler discussed her concerns about the Applicant’s performance and “made it clear that [she] wanted him to focus on contacting brokers within his allocated States to build the business.”[40]

(c) On 2 December 2019 Ms Morgan-Payler met with the Applicant and discussed targets and strategy for the Respondent’s medical malpractice business.[41]

(d) In an email to the Applicant on 24 December 2020, Ms Morgan-Payler requested that he prepare his broker marketing plan by 20 January 2020.[42] The Applicant failed to do this.

(e) On 29 January 2020, Ms Morgan-Payler provided the Applicant with an outline of her broker plan for the month of February to give him guidance, as he was yet to provide her with any plan.[43]

(f) On 31 January 2020 the Applicant finally provided his broker plan targets to Ms Morgan-Payler.[44] He identified only 7 targets. By this stage, he had been focusing upon the Respondent’s medical malpractice business since about May 2019, and Ms Morgan-Payler had raised concerns with his performance in relation to contacting brokers as far back as November 2019.

(g) On 1 February 2020 Ms Morgan-Payler provided the Applicant with assistance in relation to his plan, by identifying some other potential targets.[45]

(h) In March 2020, Ms Morgan-Payler started using One on One Catch-Up Sheets and One on One weekly meetings (with the Applicant) as a performance management tool.[46]

(i) In an email from Ms Morgan-Payler to the Applicant on 5 March 2020, she listed as one of his weekly priorities “Your target list”, and directed him, despite the pandemic, to engage with the NSW market, by phone.[47] The evidence substantiates that the NSW market of health organisations requiring malpractice insurance was the largest of the three States for which the Applicant was responsible.[48]

(j) On and from 26 March 2020, Ms Morgan-Payler requested that the Applicant provide his broker plan each week.[49] Indeed Exhibit R1 records as an action item “Your plan to grow the medical malpractice book within NSW/QLD/WA”, and advised the Applicant to “Please update on this status item which we [have] spoken about”.[50]

(k) Arising out of a meeting between the Applicant and Ms Morgan-Payler on 21 May 2020, in an email to the Applicant on 22 May 2020, Ms Morgan-Payler included the following: “I look forward to your update next week on your work plan over the next months and have included below your numbers for last year and this year to date to help with that.”.[51]

(l) On 27 May 2020, the Applicant in an email to Ms Morgan-Payler said “I’ll make use of the EAP as suggested. As discussed, I’ll provide details of my broker engagement plans for NSW, Qld and WA in the next week”.[52] The Applicant failed to meet or follow through on this commitment.

(m) On 3 June 2020 the Applicant and Ms Morgan-Payler met. On 4 June 2020 Ms Morgan-Payler sent the Applicant an email confirming the matters discussed the day before, which included (as item number one) “The overdue delivery of your plan to finding opportunity in QLD, NSW and WA”.[53]

(n)   On 19 June 2020 the Applicant provided Ms Morgan-Payler with his Broker Engagement Plan.[54] By this time, the Applicant had been focused on the Respondent’s medical malpractice business for about 12 months, some 7 months had elapsed since Ms Morgan-Payler had raised concerns with his performance, and it was now 4 months since the Applicant had received very strong negative feedback at his performance appraisal.
(o)   For the reasons articulated by Ms Morgan-Payler, the Applicant’s plan and his approach to growing the business by engaging with brokers, was wholly inadequate.[55]
(p)   Ms Morgan-Payler further elaborated in her oral evidence upon what she was seeking of the Applicant in his plan, namely specific meetings and what outcomes he was going to achieve.[56]
(q)   On 16 July 2020, in an email to the Applicant, Ms Morgan-Payler sought from him a written update on his plan to grow the Respondent’s medical malpractice book in the three states.[57] Ms Morgan-Payler’s comments to the Applicant were “Please update on this status item, note that the last feedback given was that I wanted to see a more strategic approach especially in NSW. Please consider the opportunities in changing market conditions and our evolving appetite as part of this.”[58] No update was provided by the Applicant.

Applicant’s alleged inability to complete tasks assigned at the level required of a senior underwriter

The Applicant made the following submissions:[59]

(a) The matters which the Respondent relies upon in respect of this reason are largely the same as those previously raised.[60]

(b) The only additional matter concerns the “AON SME Policy”. As best as one can discern, the Respondent’s complaint in substance appears to be that the Applicant was responsible for that policy wording not progressing sufficiently quickly, and that the quality of his work on that policy was inadequate.[61]

(c) The Applicant has explained in detail the background to this issue, and why there is no substance to the Respondent’s complaint.[62] His evidence, in that respect, should be accepted.
(d) The Applicant emphasises the following matters:
(i)First, Ms Morgan-Payler was the person primarily responsible for the policy wording up until at least February 2020.[63] She had, by that stage, been working on the matter for some three months.[64] It was not until some months after Ms Morgan-Payler started working on the matter, that she requested that the Applicant become involved. Even then, the Applicant’s initial role was a supporting one, i.e. to review Ms Morgan-Payler’s draft.[65]

(ii)Secondly, the Respondent has failed to produce any evidence of the kind necessary to enable the Commission to make a finding as to whether the time that the Applicant took to complete the tasks for which he was responsible, or the quality of his work, whether in relation to the AON SME Policy wording, or more generally, was unsatisfactory.[66] For example, the Respondent has failed to produce any of the actual drafts and amendments to the drafts prepared by the Applicant and/or Ms Morgan-Payler. Nor has it produced other evidence that would enable the Commission to form an assessment of the timeliness and quality of the Applicant’s work. It was exclusively within the Respondent’s ability to produce that evidence. In those circumstances, the Commission should not be satisfied that the allegation that the Applicant was unable to ‘complete tasks assigned at the level required of a senior underwriter’ is well founded.[67]

(iii)Thirdly, the Applicant’s criticism of the delay in producing, and the poor quality of, Ms Morgan-Payler’s initial draft of the AON SME Policy wording is only supported by the few contemporaneous documents that the Respondent has adduced in evidence.[68] The first evidence of Ms Morgan-Payler emailing a draft of the wording is in December 2019, some two months after she had started working on it.[69] Indeed, Ms Morgan-Payler acknowledged in that email her own lengthy delay in completing the draft.[70]

The draft was sent to the Respondent’s Manager of Casualty, Mr Ciaran O’Shaugnessy. Mr O’Shaughnessy himself took more than a month to respond with his comments.[71] Yet Ms Morgan-Payler makes no complaint about this delay. Mr O’Shaugnessy suggested what were apparently extensive amendments to the draft, including that it “could be structed in a more user-friendly manner”. That is consistent with what the Applicant describes in his statement as to his conversations with Mr O’Shaugnessy about Ms Morgan-Payler’s work.[72] It is to be noted that the Respondent has not called any evidence from Mr O’Shaugnessy.

(iv)Ms Morgan-Payler gives evidence as to the feedback which the Applicant gave her on her initial draft of the policy wording. Her evidence is as follows:
“As Samir was a Senior Underwriter, I sent him the policy to review. Samir said to me words to the effect of “it’s bad, I don’t think it will work”. I responded to him with words to the effect of “What will work? How do I make it better”. Samir did not provide a response.”[73]

The first matter to note is that Ms Morgan-Payler does not dispute that her draft was, as the Applicant pointed out, “bad”.[74] Further, Ms Morgan-Payler’s account of her conversation with the Applicant is contradicted in an important respect by an email Ms Morgan-Payler sent to the Applicant on 13 January 2020, after she had received Mr O’Shaugnessy’s comments on her draft. Ms Morgan-Payler said in that email:[75]
Hi Samir
Ciaran and Jesse have kindly done some work on the SME wording with similar comments to yours. (Great minds think alike).”

The proposition that the extent of the feedback that the Applicant gave to Ms Morgan-Payler in respect of her initial draft was as described in Ms Morgan-Payler’s description of their conversation cannot be reconciled with this email. It is also inconsistent with the Applicant’s evidence, which is far more plausible.[76]

(e) Accordingly, the Applicant submits that the Commission should reject the second reason relied upon by the Respondent as a valid reason for his dismissal.

The Respondent made the following submissions on the issue of the Applicant’s inability to complete tasks assigned to him (as expected of a senior underwriter):

(a) Ms Morgan-Payler’s evidence identifies insufficient growth in the number of submissions written by the Applicant in 2020, as compared to 2019. Ms Morgan-Payler provided the Applicant with comparative reports on a monthly basis,[77] however, the Applicant submission rate continued to be insufficient. The significance of writing submissions arising out of contact with brokers is explained by Ms Morgan-Payler as follows:
“… a key aspect of Samir's role as Senior Underwriter was to build relationships with brokers in the medical malpractice business and to focus on submission numbers. A submission is an offer from a broker to quote on an insurance policy. It is through the process of reviewing policies that an organisation is able to build target business lists and form relationships with brokers who may have other business to place. A percentage of quotes will be successful and ultimately this is how you write a book of insurance business.”[78]

(b) The Applicant’s evidence was that he accepted that in growing an insurance business contact with brokers may lead to the writing of insurance “submissions”, being a request for a quote for new business (as distinct from a passive submission);[79] and that he received reports of submission rates from Ms Morgan-Payler.[80]
(c) The Commission should find that the Applicant’s submission rates in 2020 were insufficient, and that this arises out of his shortcomings in business planning and broker contact.[81]

On the matter of the “AON SME Policy”, the Respondent submits that regardless of the dispute between the parties as to the drafting of the initial documents in early 2020,[82] the work was assigned to the Applicant to satisfactorily complete from May 2020. This did not occur in the last 4 months of his employment.

Applicant’s observed behaviour in internal and external meetings allegedly not in line with the Respondent’s values

The Applicant made the following submissions in relation to the five matters that the Respondent relies upon in support of this allegation, as follows:
(a)   Firstly, the Respondent relies upon an alleged conversation between the Applicant and Ms Sarah Warden, a fellow member of the Respondent’s Healthcare liability team. The Applicant has explained that conversation in detail.[83] It is telling that the Respondent has not called any evidence from Ms Warden, the only other party to the conversation.
(b)   The Applicant’s account of his conversation with Ms Warden should be preferred over Ms Morgan-Payler’s hearsay evidence as to the content of that conversation,[84] which was put to the Applicant in cross-examination, and which he rejected.[85]
(c)   Secondly, the Respondent relies upon a conversation between Ms Morgan-Payler and the Applicant in relation to the Black Lives Matter (BML) movement.[86] The conversation was prompted not by the Applicant, but by a whole-of-company email from Peter Eastwood, the Respondent’s Global Chief Executive Officer.[87] The subject line of the email was “Listen, Learn, Affect Change”. The email stated (in part):
“Last Thursday I sent the below note to our team in the United States. I initially sent the note to the U.S. team only because, as you’ll read, there are certain aspects of the note that are specific to the U.S. I am sending it to all of you now, because the overarching messages that I communicate in the note are applicable to all parts of our organization everywhere in the world, and it is my expectation, as I know it is yours, that BHSI be an environment that all team members consider respectful, welcoming, safe, and healthy. And, quite frankly, I’m sending it because issues of racism, bigotry, and inequality are not unique to the United States.
As we continue on our journey at BHSI, there will undoubtedly be many instances and opportunities for us to learn and improve, and I’m certain that a continued focus on what it means to be a member of the BHSI team is an area for continued learning and improvement for all of us, and that it matters. I look forward to continuing the journey with all of you and getting better, together.
As always, I welcome any questions or thoughts that you may have regarding this note. (emphasis added).”
(d)   After receiving this email, it was Ms Morgan-Payler, not the Applicant, who raised the matter at a team meeting, and asked for peoples’ opinion.[88] The relevant parts of Ms Morgan-Payler’s statement are as follows:
“I raised this at a team meeting in July 2020 comprising my immediate team, the Healthcare Claims team and our Underwriting Technician (8 team members in total), to which Samir said words to the effect of ‘they are just words on a page’.
I telephoned Samir after the meeting and asked what more he thought BHSI should be doing. Samir simply responded with words to the effect of ‘we haven’t done anything about it.’ I was shocked by Samir’s responses. I found his negative comments to be disappointing and not constructive.”
(e)   Even if, for the sake of argument, one were to accept Ms Morgan-Payler’s account of her conversation with the Applicant, which the Applicant disputes in important respects,[89] it is submitted that this is plainly not a matter that could rationally justify such serious action as the Applicant’s dismissal. Indeed, having regard to the content of Mr Eastwood’s email, the fact that this matter was subsequently relied upon by the Respondent as a reason to dismiss the Applicant calls into question whether the Respondent is a company that truly lives up to the progressive values it espouses.
(f)    Thirdly, the Respondent relies upon two other comments of the Applicant which are described in Ms Morgan-Payler’s statement.[90] The trivial nature of the first matter is illustrated by the fact it was not even mentioned in any of the correspondence leading up to the Applicant’s dismissal, including the letters from the Respondent outlining the reasons for the Applicant’s dismissal. The second comment is of a similarly trivial nature. The Applicant addressed it in his response to the Respondent prior to his dismissal.[91] Neither comment is capable of providing a valid reason for the Applicant’s dismissal. Again, it is to be emphasised, that no formal warning, reprimand or other action was taken against the Applicant at the time of either comment.
(g)   Fourthly, the Respondent relies upon an incident concerning a letter the Applicant sent to the Commonwealth Government in January 2020. The relevant facts relating to this matter are disputed as between the Applicant and Ms Morgan-Payler.[92] The Applicant’s account of the relevant events should be preferred. In any event, the Applicant’s evidence that no harm was caused to the Respondent as a result of his communications is not contested.[93] Further, given that (a) the Respondent never formally warned or raised any concerns in writing with the Applicant about the incident;[94] (b) the Respondent has not produced a single document relating to this incident; and (c) the incident occurred in January 2020, some six months before the Applicant was dismissed, this matter is similarly not a matter that constitutes a valid reason for the Applicant’s dismissal.
(h)   Fifthly, the Respondent relies upon alleged comments that the Applicant made in a conversation with an employee of the Respondent’s underwriting agency, Mr David Leach. The Applicant has addressed that issue in detail in his statement.[95] It is sufficient to note three matters. First, the Applicant’s direct evidence of his conversation with Mr Leach should be preferred to Ms Morgan-Payler’s hearsay account of the content of that conversation based upon what was communicated to her by a third party.[96] Secondly, the Respondent has adduced no evidence to substantiate its allegation that the Applicant’s conversation “resulted in a loss of trust between Tego and BHSI”.[97] In fact, the Applicant has given uncontested evidence to the contrary.[98] Thirdly, Ms Morgan-Payler became aware of the conversation in March 2020. Plainly, she did not regard it as a matter sufficient to warrant a formal warning or any other disciplinary action, let alone dismissal.
(i)     Accordingly, the Commission should find that none of these matters relied upon by the Respondent, whether viewed individually or collectively, provide a valid reason for the Applicant’s dismissal.

The Respondent made the follow submissions in relation to “Tego”:

(a) In his evidence, the Applicant accepted that the Respondent’s relationship with Tego was very important and the maintenance of that relationship was of fundamental importance to the Respondent (particularly in relation to the doctors’ indemnity business).[99]

(b) The evidence of Ms Morgan-Payler establishes that the Applicant’s comments to a Tego employee, Mr Leach in March 2020, created relationship issues between Tego and the Respondent that required significant remediation efforts by the Respondent, and in particular Ms Morgan-Payler.[100] The Applicant’s evidence, whilst initially denying the comments, accepted that if he was critical of the Respondent in his discussion with Mr Leach, it was not his intention to be critical.[101]

(c) Based upon the events that transpired, the Commission should be satisfied that the Applicant’s comments were made, and that the Applicant’s actions were unsatisfactory conduct in the circumstances, particularly having regard to his seniority, his past involvement with the Tego relationship, and the fact that other members of the Respondent’s team now had responsibility for the relationship. Ms Morgan-Payler promptly spoke to the Applicant about his actions, and then followed this up in writing to him.[102]

The Respondent made the follow submissions in relations to the “Australian Government” communication:

(a) In his evidence, the Applicant accepted that Ms Morgan-Payler had not authorised the Applicant sending the letter to the Australian Government, and that he sent the letter in circumstances where she was on leave and he was the next most senior person in the team.[103] Although the Applicant could not recall if he tried to contact Ms Morgan-Payler whilst she was on leave before sending the letter, it is clear that based upon her evidence he did not do so.[104]

(b) Having regard to the events that transpired,[105] the Commission should find that the Applicant’s actions were unsatisfactory. Ms Morgan-Payler promptly discussed her concerns with the Applicant at his performance appraisal.

The Respondent made the follow submissions in relations to “Feedback to Ms Warden”:

(a) After the Applicant trained Ms Warden, she still needed advice and guidance from him from time to time, or from Ms Morgan-Payler.[106]
(b) Although the Applicant denied in his evidence making a specific comment to Ms Warden about her performance in April 2020, the Commission should find that based upon Ms Morgan-Payler’s evidence, the support or feedback that was provided by the Applicant to Ms Warden was not handled by him satisfactorily given the impact it had on Ms Warden.[107] This is particularly the case given the small three-person work team.

The Respondent made the following submissions in relations to “Comments about the Respondent’s Boston head office, the CEO circular and Ms Morgan-Payler”:

(a) The Applicant accepted making the comments recalled by Ms Morgan-Payler as set out in her statement.[108] Whilst the Applicant “did not recall” the exchange recalled by Ms Morgan-Payler,[109] it is submitted that the Commission should find that such an exchange did occur.

(b) It is submitted that the Applicant’s comments about his work colleagues were inappropriate and not consistent with the Respondent’s values, particularly ‘respect’ and ‘collaboration’.[110] They were also damaging to the working relationship between the Applicant and Ms Morgan-Payler.

Respondent’s loss of confidence in Applicant’s alignment with its approach to underwriting, and the business direction that the Respondent determined best for its Healthcare business

The Applicant made the following submissions:[111]

(a)   The Respondent relies upon two matters in support of this reason. First, that the Applicant allegedly continued to focus on aged care apparently against an instruction given by Ms Morgan-Payler in an email she sent to him on 15 May 2020.[112] Secondly, work that the Applicant performed in respect of the ‘Healius’ account.
(b)   The Commission should give short shrift to both of these matters. As to the complaint about aged care, that matter was dealt with comprehensively in the Applicant’s statement.[113] The Applicant’s account is consistent with documents that the Respondent subsequently produced in response to the Commission’s orders for production made on 3 November 2020.[114]
(c)   Ms Morgan-Payler failed to respond in her statement directly to any of the evidence provided by the Applicant as to these matters. The St Luke’s matter is the one and only example that the Respondent cited in its termination letter in support of its allegation as to the Applicant’s continued focus on aged care (which the Applicant comprehensively debunked in his evidence).[115]
(d)   As to the Healius matter, that is dealt with in three short paragraphs of Ms Morgan-Payler’s statement.[116] Not a single document has been produced by the Respondent in respect of it. The Applicant’s earlier submissions[117] in relation to the inadequacy of the Respondent’s evidence apply with even greater force to the Healius matter. In any event, the Applicant’s evidence demonstrates that there is no substance to the contention that his work on the Healius account could provide a valid reason for his dismissal.[118]

In relation to “Aged Care” the Respondent submitted that Ms Morgan-Payler gave detailed evidence in cross-examination that set out and explained her views and actions in relation to the St Luke’s referral.[119] It is submitted that her explanation bears out her concerns in relation to the Applicant’s alignment with her decision about aged care coverage.[120]

In relation to “Healius”, the Respondent submitted that the Applicant has admitted a particular error in his handling of this renewal.[121] In cross-examination the Applicant acknowledged further aspects of the renewal, which he summarised as not ideal.[122] It is therefore submitted that the concerns of Mr Morgan-Payler have substance, [123] especially having regard to the Applicant’s further evidence.

Consideration – Valid reason

In my view, I do not accept that the Applicant’s discussions with Ms Warden, his comments concerning BLM, his interactions with the Tego team, his interactions in Aged Care (including the St Luke’s referral), or his comments about other employees in the BHSI US management team, are sound, defensible or well-founded reasons for his dismissal. In this regard, even taking the Respondent’s case as to these matters at its highest, I concur with the Applicant that they are essentially minor or trivial issues, and in many cases based upon hearsay or differences of opinion.

In relation to the letter sent by the Applicant to the Commonwealth Government in January 2020, it is accepted between the parties that the Applicant was not authorised to send the letter. It is also uncontroversial that the Applicant failed to obtain Ms Morgan-Payler’s authorisation to send the letter. However, in the circumstances, I do not accept that the sending of the letter in January 2020 constitutes a valid reason for the Applicant’s dismissal in August 2020.

The issues concerning the Applicant’s general performance, however, fall into a different category. The Applicant raises various internal factors (mainly relating to his views as to Ms Morgan-Payler’s managerial approach and leadership), and external factors (relating to market-based commercial issues, and the impact of the COVID-19 pandemic) that he asserts blocked or impeded his inability to define or implement a strategic plan to build the Respondent’s business. However, there seemed to be a general acceptance between the parties that the issues concerning the Applicant’s performance were more about his efforts than the outcomes from those efforts. In other words, Ms Morgan-Payler’s expectations of the Applicant (as a senior and experienced underwriter) were for him to work both autonomously and collaboratively with her, to map out a plan for the business to grow. On the evidence, the Applicant failed to meet these expectations, or otherwise do the work required to meet same.

Between November 2019 and July 2020, over a period of eight months, issues such as strategy, plan, action, focus, and targets were a constant theme of the interactions between Ms Morgan-Payler and the Applicant. Notwithstanding this, there are various instances in the evidence where the Applicant did not produce what was expected of him, which ultimately resulted in Ms Morgan-Payler initiating One on One meetings as a performance management tool. The Applicant claims that the guidance and assistance provided to him by Ms Morgan-Payler over that eight-month period was unhelpful or of little assistance, or that he was contacting brokers that Ms Morgan-Payler was not aware of. However, the reality is that Ms Morgan-Payler was not impressed, and was becoming increasingly frustrated, by what she considered to be his lack of effort, and his failure to follow through on straightforward commitments that he promised.

In my view, having regard to the evidence and the submissions of the parties, the position adopted by the Respondent in dismissing the Applicant over his performance was rational, reasonable, sound , defensible and well-founded. The Respondent was entitled to form the view that the Applicant’s performance was unsatisfactory, and I consider that this view is equally made out on the evidence. I therefore find that the Respondent’s reasons for terminating the Applicant based upon his performance (or lack thereof) over an eight-month period constitute a valid reason for his dismissal. This weighs against a finding that the Applicant’s dismissal was harsh, unjust or unreasonable.

s.387(b) — Whether the Applicant was notified of the valid reason

The evidence discloses that the Applicant was notified of the reasons (including the performance reasons) for his dismissal. I consider this to be a neutral consideration in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.

s.387(c) — Whether the Applicant was given an opportunity to respond to any reason related to his capacity or conduct

The Applicant made the follow submissions:

(a) On 16 July 2020, Ms Morgan-Payler sent Ms Angela Collett, a member of the Respondent’s HR team, a script for a performance meeting that she proposed to have with the Applicant.[124] As the name suggests, the script recorded what Ms Morgan-Payler intended to tell the Applicant at the performance meeting.[125] At this point in time, the Respondent had not had any communication with the Applicant about his potential termination.[126] The script relevantly reads:
“At the mid-year point we have reviewed what you have achieved over the past 5 months and have the following feedback
…
For the reasons that I have outlined we are giving you notice. Your last day in the office will be Following your last day you will have a four weeks’ notice period.”

(b) The same day, Ms Collett sent Ms Morgan-Payler a revised version of this draft.[127] Ms Collet’s revised draft relevantly did not make any changes to the foregoing passage.
(c) Ms Morgan-Payler was cross-examined about her 16 July 2020 script as follows:[128]
“So you were planning to dismiss him at that first meeting? No. What we were planning to do was go to the meeting with an open mind. I'm someone who approaches things in a very measured and thoughtful way and I like structure. So I like to be clear on what it is that I'm going to communicate. So, you know, this was around getting - getting the messages correct that I was going to hand over, and I was very aware that I needed to listen in that meeting, that I needed to take on Samir's response and anything new that he provided in terms of his performance, and make a decision, you know, from that, which is subsequently what happened.
So this is evidence of you having an open mind, a letter that proceeds to say:
At the mid-year point we have reviewed what you have achieved.

It lists various points and then it says at the end of the letter:
For the reasons I have outlined we are giving you notice.

That's evidence of you having an open mind about this meeting? No, that's evidence of me preparing, you know, what I thought might happen, but I was fully aware that I could, you know, make a call, a different call either way, and depending on what came up in that meeting. But given I had had a number of meetings with him about all of the issues that we had concerns about and, you know, there was no change, there was no response that was any different I was of the view that it wasn't likely to change.”

(d) It is to be recalled, of course, that at the time Ms Morgan-Payler prepared her 16 July 2020 script, no written warning had ever been issued to the Applicant, no disciplinary action had ever been taken against the Applicant, and neither Ms Morgan-Payler, nor anyone else, had ever intimated to the Applicant that his employment was in jeopardy.

(e) Subsequently, on 21 July 2020, Ms Morgan-Payler requested that the Applicant attend a meeting with her the following day.[129]

(f) At 12:26pm that day, Ms Morgan-Payler informed the Applicant that, during the meeting, the Respondent would be:

“advising our decision on [the Applicant’s] continued employment at BHSI [the Respondent]”.

(g) Around two hours later, Ms Morgan-Payler sent to Ms Collett an “updated conversation script”.[130] Ms Morgan-Payler’s revised script now (relevantly) read:

“Over that period, I have been specific about what you needed to improve to reach the required level which include:

-     The implementation of a strategic plan to build the healthcare business in NSW, QLD & WA
-     Your ability to complete tasks assigned at the level required of a senior u/w
-     Behaviour in meetings and our weekly catch ups where your attitude and comments have not been in line with our values
-     Loss of confidence in your alignment with our underwriting approach and business direction moving forward

Samir, we have had regular 1:1 conversation’s and performance conversations from February including follow up emails so that you were clear on our expectations of you. During this time you haven’t engaged with me in the way I would have expected of you and as discussed on Friday, looking back over the first half of the year I haven’t seen the improvements required.

Samir, would you like to respond at this point?

Thank you for your response. Samir, when we discussed this in February this isn’t the outcome I was wanting however, we are in this position.

I believe that the points you have addressed have been discussed previously and as such the decision is to provide you with notice of termination your employment with BHSI. Your last day in the office will be 31 July 2020. You will be paid your one months’ notice and statutory entitlements following this.

What questions do you have?

(If there is addition information we have not considered – thanks for your feedback Samir this is new information that I have not previously considered. I would like to pause the meeting at this point to consider this further. We will come back to you in the next 24hours with our response)

Next steps:
-     I will be speaking to the team, do you have a preference in how you want to message this to them? My message to the team – Samir is going to be leaving BHSI, his last date will be xxx during the next x period he will be doing xyz, given covid, and our business I am going to take time to evaluate what is best in terms of next steps for the team.
-     I would appreciate the time for me to do so this afternoon
-     Lets catch up tomorrow to go through what we need to focus on for the next x period.”

(h) The Applicant subsequently sent an email to Ms Morgan-Payler which stated (in part):[131]

“That’s quite concerning! Prior to meeting can you please provide me with reasons why my continued employment with BHSI is now question [sic]?”

(i) Ms Morgan-Payler sent an email to the Applicant a few hours later in which she stated:[132]

“We have spoken about expectations of a Senior Underwriter at BHSI and where I needed to see improvement in our One on One meetings and follow up emails. As you have asked for further clarity I suggest that we take tomorrow to go through the reasons and follow up with a subsequent meeting.”

(j) The following relevant points emerge from the above:

i)First, the Commission should find that by no later than 16 July 2020, Ms Morgan-Payler had determined that the Applicant should be dismissed, and intended to communicate that matter to the Applicant at her initial performance meeting with him. That is the inference that overwhelmingly arises from Ms Morgan-Payler’s 16 July script. Her attempt to explain away that script in cross- examination should be rejected.[133]

ii)Secondly, the Commission should find that this remained Ms Morgan-Payler’s intention at least up until the afternoon of 21 July 2020, when Ms Morgan-Payler informed the Applicant that he would be advised at their initial meeting of the Respondent’s “decision on your continued employment”. Those words can only sensibly be understood as meaning that the Applicant would be notified at the performance meeting of the decision the Respondent had already made as to whether he would be dismissed.[134]

iii)Thirdly, it is true that, as matters transpired, the Applicant was not dismissed at that initial performance meeting, and that the Respondent gave the Applicant an opportunity to respond in writing before informing him of its decision to dismiss him.[135] However, it is pertinent to note that (a) Ms Morgan- Payler had previously planned to dismiss the Applicant at the initial performance meeting, (b) that plan changed only after the Applicant had “asked for further clarity”, (c) the Applicant was only afforded an opportunity to respond in writing because he had asked the Respondent to set out its reasons for his dismissal in writing,[136] (d) having received a detailed response from the Applicant, the Respondent never provided any substantive response to the matters he raised,[137] and (e) the reasons the Respondent subsequently cited for his dismissal were precisely the same as the matters outlined in the script Ms Morgan-Payler had prepared prior to the initial meeting.[138]

iv)In those circumstances, the observations of Moore J in Wadey v YMCA Canberra are apposite:[139]

“In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of allegations concerning the employee’s conduct so as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.”

(k) Here, the Commission should find that the Respondent simply ‘went through the motions’ of giving the Applicant an opportunity to respond to the allegations concerning him when a decision to terminate him had, in substance, already been made and would be adhered to.

The Respondent made the follow submissions:

(a) The reasons that were ultimately relied upon by the Respondent for the Applicant’s dismissal were articulated to him in his discussions with Ms Morgan-Payler on 23 July 2020, and were subsequently detailed in a letter dated 27 July 2020 from Ms Morgan-Payler to the Applicant.

The Applicant had an opportunity to respond to these reasons before a decision was made to dismiss him.
The reasons for dismissal were notified to the Applicant in the Respondent’s letter of dismissal dated 10 August 2020.
The Applicant’s unsatisfactory performance was also notified to him on an ongoing basis commencing from November 2019.

The Applicant was given an opportunity to respond to the reasons related to his capacity (performance) and conduct.
At discussions between the Applicant and Ms Morgan-Payler on 23 July 2020, Ms Morgan-Payler articulated the Respondent’s concerns with the Applicant’s performance. The Applicant chose not to respond at the discussions, and requested that the Respondent put its concerns about him in writing (and that he would provide a written response). This was agreed to by the Respondent. The discussions were also attended by Angela Collett, the Respondent’s Head of Human Resources, and Matthew Clarke, the Applicant’s support person.
By letter dated 27 July 2020 from Ms Morgan-Payler to the Applicant, the Respondent set out its concerns and requested the Applicant’s response by 31 July 2020.
The Applicant then sought a short extension for his response, which was agreed to by the Respondent.
On 3 August 2020 the Applicant provided the Respondent with his written response.
The Applicant’s response was considered by Ms Morgan-Payler before a decision was made to dismiss him.
The Applicant was notified of his dismissal at discussions between the Applicant and Ms Morgan-Payler on 10 August 2020. The discussions were also attended by Ms Collett and Mr Clarke.[140]
…
The Applicant’s unsatisfactory performance was brought to his attention on numerous occasions in the period from November 2019 to July 2020. The relevant events include the following:
i)19 November 2019 – the Applicant’s initial meeting with Ms Morgan-Payler;

ii)6 February 2020 – at the Applicant’s Performance Review Meeting with Ms Morgan-Payler, and then in an email on that date from Ms Morgan-Payler to the Applicant;

iii)12 March 2020 – at the Applicant’s meeting with Ms Morgan-Payler;

iv)In March 2020 and then recommencing on 1 May 2020 – by Ms Morgan-Payler commencing the use of weekly action plan documents and holding weekly meetings with the Applicant to discuss specific details of the Applicant’s work activities, planning and performance;

v)21 May 2020 – at the Applicant’s meeting with Ms Morgan-Payler at which time she said to him: “I don’t know how else to say it. You’re underperforming”;

vi)22 May 2020 – in an email from Ms Morgan-Payler to the Applicant about her expectations in relation to the use of his work time and effort;

vii)3 and 4 June 2020 – at the Applicant’s meeting with Ms Morgan-Payler, and in her subsequent email to him, about his failure to provide a broker engagement plan; and

viii)24 June 2020 - in an email from Ms Morgan-Payler to the Applicant, and in her subsequent discussion with him, about the number of submissions he had written.

The Applicant’s unsatisfactory performance resulted in him receiving no salary increase for 2020, and not being awarded his target bonus for 2019.
The Applicant clearly realised the seriousness of the situation when he said to Ms Morgan-Payler on 12 March 2020: “do you think it's time I found another job? I can leave.”
Ms Morgan-Payler provided appropriate assistance and guidance to the Applicant in relation to his unsatisfactory performance, such as: providing him with her broker plan and her action items as examples; providing him with the names of brokers and other opportunities that she had identified for the Applicant to action; convening weekly and later daily meetings with him to focus his attention on his engagement with brokers; and the utilisation of One on One Catch Up sheets to manage action items.[141]
(b) At the meeting between the Applicant and the Respondent on 23 July 2020, the Respondent articulated to the Applicant the reasons that were ultimately relied upon by it for the Applicant’s dismissal.[142] At the meeting the Applicant asked for those matters to be put to him in writing so that he could provide a written response, which was agreed to by the Respondent.[143]
(c) The cross-examination of Ms Morgan-Payler included the following evidence about that meeting and related matters:
“PN1021
So you were planning to dismiss him at that first meeting? --- No. What we were planning to do was go to the meeting with an open mind. I'm someone who approaches things in a very measured and thoughtful way and I like structure. So I like to be clear on what it is that I'm going to communicate. So, you know, this was around getting - getting the messages correct that I was going to hand over, and I was very aware that I needed to listen in that meeting, that I needed to take on Samir's response and anything new that he provided in terms of his performance, and make a decision, you know, from that, which is subsequently what happened.
PN1026
That's evidence of you having an open mind about this meeting? --- No, that's evidence of me preparing, you know, what I thought might happen, but I was fully aware that I could, you know, make a call, a different call either way, and depending on what came up in that meeting. But given I had had a number of meetings with him about all of the issues that we had concerns about and, you know, there was no change, there was no response that was any different I was of the view that it wasn't likely to change.
PN1031
That suggests, doesn't it, that a decision was going to be notified to Mr Sofat about his continued employment being (indistinct) at this meeting? --- Yes. And a decision was made at the meeting and that was to give him a written response and to – and he gave us back his written response.
PN1032
I see?---So that was a decision that was made.
PN1033
So notwithstanding that at this point in time you had prepared a script which included you saying to him for the reasons above you will be given notice. Your evidence is notwithstanding that script you have prepared the reference in this email to advising a decision on your continued employment was not the decision to dismiss him? --- Look, I didn't know what was going to happen in that meeting. A number of things could have happened. What happened was that Samir asked us to put – give him more information – which we did.
PN1034
And you're right, Ms Payler, there was a point at which there's a reference to potentially not terminating Mr Sofat if there's additional information provided and that was in a later version of the script that you prepared which is at document six. And I'll take you to that document as a matter of fairness to you? --- Document six? Yes.
PN1039
MR RAGHAVAN: And here you tell Ms Collet on the 21 July 2020 after your exchange with Mr Sofat and after you had already prepared the first version of your script some five days earlier that you were sending her an updated version of the script. And that updated version appears on page three? --- Yes.
PN1040
And here there is now included “if there is additional information we have not considered then you will tell Mr Sofat. That's for your feedbacks again. This is new information and not fresh incident. I would like to pause the meeting at this point. We will come back to you in 24 hours.” So what prompted the change in this script Ms Morgan-Payler? --- Look, I mean I'm not an expert at this. I don't do this every day of the week. So, you know, all I can say is that I realised that you have to go into these meetings and give people an opportunity to respond. You know?
PN1041
So before that was drawn to your attention you intended to terminate him. And then someone told you need to give an opportunity to respond and to include it? Is that your evidence? --- No. No, I have terminated people before and I do understand. I am very well versed on what you need to do. I have terminated a number of people in my past. So, no, it wasn't anyone – I don't recall it being anyone telling me anything. It may well have been of me sitting there and – you know – refining my script. You will see that they are all drafts. I'm just working through a process.
PN1042
And you accept, wouldn't you, that it would have been unfair to have decided to dismiss Mr Sofat before that first meeting? --- Yes. Yes.
PN1043
But your evidence is at no point did you intend that to be the case notwithstanding the script you had prepared? --- Well, it depended on – you know – how that meeting – that first meeting went.”

(d) Based upon the evidence of Ms Morgan-Payler the Commission should find that:

i)prior to and as at the time of the meeting on 23 July 2020, Ms Morgan-Payler had not made a decision to dismiss the Applicant;

ii)Ms Morgan-Payler was preparing for the possibility, or even the likelihood, of needing to effect the Applicant’s dismissal but retained an open mind depending upon what transpired at the meeting on 23 July 2020, and the Applicant’s response; and

iii)the scripts prepared by Ms Morgan-Payler were drafts that were developed as the time of the meeting.[144]

(e)       The last draft script expressly referred to the meeting being adjourned so that the Respondent could consider matters raised by the Applicant.[145] This is exactly what happened. Also, an email from Ms Morgan-Payler to the Applicant two days before the meeting said: “We have spoken about the expectations of a Senior Underwriter at BHSI and where I needed to see improvement in our One on One meetings and follow up emails. As you have asked for further clarity I suggest that we take tomorrow to go through the reasons and follow up with a subsequent meeting”.[146]
(f)       Arising out of the meeting on 23 July 2020, the reasons (that were ultimately relied upon for dismissal) were detailed in a letter from the Respondent to the Applicant dated 27 July 2020;[147] and the Applicant provided his written response to the Respondent on 3 August 2020.[148]
(g)       Ms Morgan-Payler’s evidence is that she had not made a decision in relation to the dismissal of the Applicant as at 3 August 2020, and that she considered the Applicant’s response received that day before making her decision to dismiss the Applicant.[149] Ms Morgan-Payler concluded that nothing in the Applicant’s response caused her to believe that dismissal was not an appropriate outcome.[150]
(h)       The Applicant was notified of his dismissal and the reasons for dismissal at a further meeting between the Applicant and the Respondent seven days later, on 10 August 2020,[151] which was confirmed in a letter from the Respondent to the Applicant on that date.[152] The letter refers to Ms Morgan-Payler having taken time to carefully review the Applicant’s written response.[153]
(i)        The events in July and August 2020 should be seen in the context of the numerous past discussions and correspondence between the Applicant and Ms Morgan-Payler about the Applicant’s work performance that had commenced in November 2019.[154]
(j)        Ms Morgan-Payler’s evidence in her statement was:
“I am disappointed that I needed to make the decision I did. It was not a decision I took lightly, but it was a necessary one. My role as Head of Healthcare is to ensure that BHSI has the best team in place and, unfortunately, Samir’s work performance as Senior Underwriter was unsatisfactory and was consequentially negatively impacting on the business.”[155]

(k) The Applicant’s submission that the Respondent ‘went through the motions’ of giving the Applicant an opportunity to respond ought to be rejected by the Commission.

Consideration – Opportunity to respond

Having regard to the evidence and submissions of the parties, I am not satisfied that the Respondent approached the termination of the Applicant on the basis that it was open to considering any response given by him before making its decision to terminate his employment. In this regard, in my view, whilst the process adopted by the Respondent had a veneer of procedural fairness surrounding it, the evidence discloses that the Respondent had very much determined to dismiss the Applicant prior to meeting with him. Whilst the Applicant may well have said something extraordinary in his response to the allegations made against him that may have altered or delayed the Respondent’s intention to dismiss him, I cannot accept that the evidence discloses an open mind to the Applicant’s responses beyond the extraordinary. Accordingly, I find that this is a factor that weighs in favour of the Applicant’s dismissal being procedurally unjust.

s.387(d) — Whether there was any unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to dismissal

The Applicant submitted that it is relevant that he was denied the opportunity to have the person of his choice to attend as his support person.[156]

The Respondent submitted that:

“There were two relevant discussions between the Applicant and Respondent relating to dismissal – on 23 July 2020 and 10 August 2020.
At both of these discussions the Applicant had Mr Clarke present to assist him. Mr Clarke held the position of Head of Executive and Professional (insurance) with the Respondent, although he attended the discussions as a support person at the invitation of the Applicant.
There was no unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist at the discussions relating to dismissal.”[157]

The Respondent further submitted that:

(a) The reasons why the Respondent did not agree for Nicole Kroesche to attend as the Applicant’s support person were explained to the Applicant in advance and in writing.[158] The Respondent’s position in this regard needs to be understood in the light of the Applicant’s own evidence about the nature and history of the working relationship between the Applicant and Ms Kroesche, and other members of the Respondent’s insurance team.[159]
(b) The Applicant is well educated and sophisticated. He was able to respond at the meeting with Mr Clarke present as his support person.[160] He was not disadvantaged in not having Ms Kroesche as his support person.

Consideration – Unreasonable refusal to allow support person

Section 387(d) of the Act concerns only discussions relating to a dismissal. It does not require that an advocate (as opposed to a support person) be allowed to attend.[161] I accept, in the particular circumstances of this case, that the Respondent had reasonable grounds for rejecting Ms Kroesche attend discussions as the Applicant’s support person. On the evidence, there is no apparent prejudice to the Applicant in the Respondent taking this approach. Given the Applicant did have a support person present during discussions, I consider this to be a neutral consideration in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.

s.387(e) — Whether the person had been warned about that unsatisfactory performance before the dismissal

The Respondent made the following submissions:

(a)   The evidence establishes that the Applicant’s unsatisfactory performance was brought to his attention on numerous occasions in the period from November 2019 to July 2020.[162]
(b)   Ms Morgan-Payler’s evidence is that at a meeting with the Applicant on 19 November 2019, she discussed her concerns with his performance and “made it clear that I wanted him to focus on contacting brokers within his allocated States to build the business.”[163] In his evidence, the Applicant could not recall the specific discussion, but he acknowledged that he and Ms Morgan-Payler were constantly having discussions about improvements, including by him.[164]
(c)   Arising out of the Applicant’s performance appraisal on 6 February 2020, Ms Morgan-Payler’s confirming email to the Applicant that day included the following:
“In 2019 we did not seen the level of activity, leadership and commercial focus we were expecting on the Medical Malpractice business, a result that we would like to look different in 2020”.[165]

(d)   The Applicant’s evidence accepted that he understood, arising from his performance appraisal, that Ms Morgan-Payler was of the view that he was not meeting performance expectations in relation to a lack of activity in meeting with brokers, and a low level of engagement with the strategy of growing the health care business.[166]
(e)   Arising out of his performance appraisal, the Applicant received no salary increase for 2020, and was not awarded his bonus target for 2019.[167]
(f)    At a meeting with the Applicant on 12 March 2020, Ms Morgan-Payler detailed the specific areas where the Applicant’s performance was unsatisfactory in 2019 (which continued to be so in 2020).[168] The Applicant’s evidence accepted that at this meeting Ms Morgan-Payler informed him that her expectations in relation to his performance were not being met in relation to a low level of meeting activity with brokers, and a low number of business quotes, and that he knew of her concerns with his performance.[169]
(g)   Ms Morgan-Payler also gave evidence that at this meeting on 12 March 2020, the Applicant asked her: “do you think it’s time I found another job? I can leave”.[170] The Applicant’s evidence is that he had a different conversation with Ms Morgan-Payler, which included the following recollection of what was said by him: “I'd like to think that I was doing my job adequately, and the moment that wasn't occurring I'd expect to be told so and upon that, I'd leave the business.”[171] Notwithstanding the different versions of this conversation, the Respondent submits that Ms Morgan-Payler did inform the Applicant that his performance was unsatisfactory in specific areas, and that the possibility of his departure from the business was discussed.
(h)   Ms Morgan-Payler gave evidence that at a meeting with the Applicant on 21 May 2020 she said to him: “I don’t know how else to say it. You’re underperforming”.[172] The Applicant’s evidence was to the effect that he did not recall those words ever being put to him.[173]
(i)     Ms Morgan-Payler’s email to the Applicant on 22 May 2020 included the following:

“As discussed I think that the focus for your development this year is for you to meet the standard we expect for Senior Underwriters at BHSI rather than focusing on external learning. We have previously discussed that this includes planning your approach to driving business and finding opportunity in QLD, NSW and WA and showing leadership by staying focused and showing what we can do to move the business forward. I also expect you to actively contribute to building our messaging and underwriting approach as the environment changes.”[174]

(j) It is submitted (by the Respondent) that the feedback and notification provided by Ms Morgan-Payler to the Applicant was strong and directive, and at a greater level of detail than an employee performing a role at his level and remuneration would normally receive or require.

The Applicant made the following submissions in reply:

(a) The issue of whether the Respondent adequately warned the Applicant about his alleged unsatisfactory performance prior to his dismissal were not grappled with by the Respondent. In this regard, the Applicant’s submissions read:

“A striking aspect of this case is the almost complete lack of any contemporaneous emails or other documents which evidence (a) the Applicant’s alleged poor performance; (b) that the Respondent harboured sufficiently serious concerns about the Applicant’s performance to justify his dismissal; or (c) that the Respondent raised such concerns with the Applicant, or otherwise communicated to him specific complaints about his performance.
There is not a single document relevant to these matters in the human resources file that the Respondent maintained in respect of the Applicant.
Indeed, the uncontested evidence is that:
(i) The Applicant was never subject to any form of disciplinary action in respect of, and was never formally warned about, any of the matters upon which the Respondent now relies to justify his dismissal;

(ii) the first time the Applicant received any indication from the Respondent that his employment was at risk was in late July 2020, some two weeks before he was dismissed; and
(iii) The Respondent did not convey to the Applicant any negative feedback about his performance until late 2019.

The high watermark of the Respondent’s evidence in this respect is an email Ms Morgan-Payler sent to the Applicant at the start of February 2020 which relevantly stated:
‘In 2019, we did not seen [sic] the level of activity, leadership and commercial focus we were expecting on the Medical Malpractice business, a result that we would like to look different in 2020.’

That statement does little to assist the Respondent’s case. For one thing, the email related to the Applicant’s performance in 2019, which the Respondent accepts was satisfactory. Moreover, the context of the statement was to convey to the Applicant the outcome of his Performance Review for 2019, which included both positive and negative feedback, and which in fact resulted in the Applicant receiving a substantial performance bonus.
Taken at its highest, the totality of the Respondent’s evidence establishes no more than that Ms Morgan-Payler from time to time made general exhortations of the Applicant to improve his performance. In fact, that is itself a generous characterisation of the documents upon which the Respondent relies.
Importantly, as is clear from the authorities discussed above, there is nothing in the material relied upon by the Respondent that satisfies the requirements of a warning of the kind contemplated under section 387(e) of the Act.”[175]

(b) The Respondent urges the Commission to find that the “feedback and notification” provided to the Applicant was “strong and directive, and at a greater level of detail than an employee performing a role at his level and remuneration would normally receive”. The latter point is a bare assertion unsupported by any evidence.[176]

Consideration – Warned prior to dismissal

Having regard to the evidence and submissions of the parties, I am not satisfied that the Respondent made it sufficiently clear to the Applicant (i.e. properly warned him) that his employment on an on-going basis was at risk unless his performance issues were addressed. Indeed, even if it might be inferred that a warning in this regard was provided, there was certainly no set timeframe provided to the Applicant for this to occur prior to the commencement of the termination process by the Respondent. Accordingly, I find that this is a factor that weighs in favour of the Applicant’s dismissal being harsh.

s.387(f) and (g) — The degree to which the size of the Respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal. 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

The Applicant submitted that the Respondent has over 130 employees,[177] and is part of the Berkshire Hathaway group, a multinational conglomerate. The Applicant therefore submitted that it is reasonable to expect that a company of this size would be able to have in place appropriate performance management and dismissal procedures, and that there can be no excuse for the Respondent failing to have in place or follow such procedures in this case.

The Respondent submitted that in Australia, the Respondent is a medium-sized enterprise, with human resource specialists and expertise.

Given that these factors are ordinarily applied to explain poor procedures followed in effecting a dismissal by reference to the small size of a business and the absence of dedicated human resource management specialists or expertise, I consider this to be a neutral consideration in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.

s.387(f) — Any other matters that the Commission considers relevant

Neither party made submissions as to other relevant matters to be taken into account. Nor am I aware of any.

Conclusion – Applicant’s dismissal was unfair

After consideration of the relevant matters outlined in s.387of the Act, I am satisfied, for the reasons outlined in this decision, that the Applicant’s dismissal was “harsh, unjust or unreasonable” within the meaning of s.387 of the Act. His dismissal, whilst for a valid reason, was absent procedural fairness or warning, and therefore, in my view, was harsh and unjust.

Remedy

The Applicant seeks reinstatement to his former position without loss of continuity of service, and with back-pay. Reinstatement is strongly opposed by the Respondent.

Determining a remedy for unfair dismissal is governed by the provisions of Ch 3, Part 3-2, Div 4 of the Act, which reads:

“Division 4—Remedies for unfair dismissal
390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

Determining a remedy for an unfairly dismissed employee essentially involves a preliminary finding by the Commission as to whether it is satisfied that reinstatement is inappropriate. It is only upon a finding that reinstatement is inappropriate that the Commission can move on to consider compensation as the alternative to reinstatement.

In my view, in all the circumstances, reinstatement of the Applicant to his former employment with the Respondent is inappropriate. The Applicant worked in the Respondent’s health insurance practice, in a team of only three people. If the Applicant was to be reinstated, he would continue to work closely with, and report directly to Ms Morgan-Payler. The evidence discloses a clear breakdown in that relationship, being a breakdown that does not disclose the potential for a collaborative on-going working relationship that would benefit either the Applicant or the Respondent.

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

I will use the established methodology for assessing compensation in unfair dismissal cases which was set out in Sprigg v Paul Licensed Festival Supermarket,[178] and applied and elaborated upon in the context of the current Act by Full Benches of this Commission in a number of cases.[179] The approach to calculating compensation in accordance with these authorities is as follows:

Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
Step 5: Apply the legislative cap on compensation.

In relation to the assessment of compensation under s.392 of the Act by reference to the steps set out in Sprigg, the Full Bench of this Commission in A1 Distributions v Humphries stated: [180]

“… the first step to be taken in assessing compensation is to consider s.392(2)(c) - that is, to determine what the applicant would have received, or would have been likely to receive, if the person had not been dismissed. In Bowden this was described in the following way:
‘[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’...’

The identification of this starting point amount “necessarily involves assessments as to future events that will often be problematic”. Once this first step has been undertaken, various adjustments are made in accordance with s.392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee’s misconduct and the application of the cap of six months’ pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case.”[181]

I am satisfied on the balance of probabilities that if the Applicant had not been dismissed on 14 August 2020, he would have remained employed by the Respondent for a further period of no more than three months. Whilst I have found a valid reason for the Applicant’s dismissal, I have found that the absence of a procedurally fair termination process, along with the absence of clear warnings to the Applicant that his employment was in jeopardy if he did not improve (based upon a specifically articulated timeline), made his dismissal unfair. In my view, three months is more than sufficient for such a process to have occurred. Further, the other reasons relied upon by the Respondent for the Applicant’s dismissal, even if not “valid reasons”, are hardly irrelevant when assessing how long the Applicant would have remained in employment. Indeed, it is plain from the evidence that the Applicant and Ms Morgan-Payler had negative views of each other, were no longer getting along, and each had their own very differing views as to the Applicant’s performance, and what was needed to improve that performance. These tensions had been simmering away for at least eight months (i.e. since at least January 2020). I do not accept from the evidence (including the cross-examination of the Applicant and Ms Morgan-Payler) that these tensions would have abated such that the Applicant and Ms Morgan-Payler would likely return to a productive and cooperative working relationship (acceptable to Ms Morgan-Payler, the Respondent, and its business interests).

There is no dispute as to the monthly rate of pay ($12,500) which the Applicant received at the time of his dismissal. In view of my findings in the foregoing paragraph, the Applicant’s anticipated period of on-going employment with the Respondent equates to the gross amount of $37,500 (i.e. 3 months x $12,500 per month).

Remuneration earned (s.392(2)(e))

The Applicant was paid one month in lieu of notice ($12,500) upon his termination. I therefore deduct from the amount of $37,500 the sum of $12,500 (one month’s payment in lieu of notice), leaving a gross amount of $25,000.

Income reasonably likely to be earned (s.392(2)(f))

No submissions were made as to this issue, and in my view, no adjustment to the amount of compensation should be made in respect of same.

Viability (s.392(2)(a)) and Length of service (s.392(2)(b))

No submission was made on behalf of the Respondent that any particular amount of compensation would affect the viability of the Respondent’s enterprise. My view is that no adjustment should be made on this account.

The Applicant’s length of service, around 3 years and nine months, in my view, does not justify any adjustment to the amount of compensation.

Mitigation efforts (s.392(2)(d))

The Applicant’s evidence as to mitigation is scant on detail. As at the time of the hearing, the Applicant says that “he has tried his best to find a new job” but has been unable to find alternative employment. This contention was not seriously challenged by the Respondent. In all the circumstances, my view is that whilst there is little detail as to the Applicant’s efforts to mitigate his loss, I do not consider it appropriate to reduce the compensation on this account.

Any other relevant matter (s.392(2)(g))

It is necessary to consider whether to discount the remaining amount ($25,000) for “contingencies”. This step is a means of taking into account the possibility that the occurrence of contingencies to which the Applicant was subject might have brought about some change in earning capacity or earnings. Positive considerations which might have resulted in advancement and increased earnings are also taken into account. The discount for contingencies should only be applied in respect to an “anticipated period of employment” that is not actually known, that is a period that is prospective to the date of this decision.
Because I am looking (in this case) at an anticipated period of employment which has already passed, in my view, there is no uncertainty about the Applicant’s earnings, capacity or any other matters during the three-month period post his last day of employment with the Respondent. In all the circumstances, my view is that it is not appropriate to discount or increase the figure of $25,000 for contingencies.

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

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

Misconduct (s.392(3))

The Applicant did not commit any misconduct, so my view is that this has no relevance to the assessment of compensation.

Shock, distress or humiliation, or other analogous hurt (s.392(4))

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

Compensation cap (s.392(5)-(6))

The amount of $25,000 is less than the amount of the high-income threshold immediately before the Applicant’s dismissal. In my view is that there is no basis to reduce the amount of $25,000 by reason of s.392(5) of the Act.

Instalments (s.393)

No application has been made by the Respondent for any amount of compensation awarded to be paid in the form of instalments.

Conclusion on compensation

In my view, the application of the Sprigg formula does not, in this case, yield an amount that is clearly excessive or clearly inadequate. Accordingly, my view is that there is no basis for me to reassess the assumptions made by me in reaching the amount of $25,000.

For the reasons I have given, my view is that a remedy of compensation in the sum of $25,000 (less taxation as required by law), plus an amount of 9.5 percent superannuation on two months wages (9.5% of $25,000 = $2,375), in favour of the Applicant is appropriate in the circumstances of this case.

Fair go all round

Section 381(2) of the Act is a significant overarching object of Part 3-2 of the Act. It is expressed as follows:

“381 Object of this Part
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was used by Sheldon J in Re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”

In my view, the outcome in this case is consistent with the object of Part 3-2 of the Act of providing a ‘fair go all round’ to both the Applicant and the Respondent.

Disposition and Orders

The following Orders will be made, and issued contemporaneously with this decision:
(a) The Respondent is pay to the Applicant the gross sum of $25,000 (subject to applicable taxation as required by law) by way of electronic funds transfer into the Applicant’s nominated bank account.
(b) The Respondent is to pay into the Applicant’s nominated superannuation fund the sum of $2,375.
(c) Orders (a) and (b) above must be complied with within 21 days of the date of these orders.

DEPUTY PRESIDENT

Appearances:

Mr K Raghavan of counsel, instructed directly by the Applicant.

Mr D Lloyd of counsel, instructed by Ms C Ball, solicitor, of Ashurst lawyers, for the Respondent.

[1] I granted permission for both parties to be legally represented in these proceedings. I did so taking into account the necessary considerations under s.596 of the Act, specifically having regard to the complexity of the factual contests between the parties, and my determination that the Commission would be assisted in conducting this matter more efficiently with the assistance of legal representation.

[2]Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (2000) IR 371 at 373.

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

[4]Edwards v Justice Giudice (1999) 94 FCR 561; (1999) 169 ALR 89; [1999] FCA 1836 at [7].

[5]King v Freshmore (Vic) Pty Ltd Print S4213 [2000] AIRC 1019 at [23] to [24].

[6]Crozier v AIRC (2000) 50 AILR 4-488; [2001] FCA 1031 at [14].

[7]See more broadly: Jetstar Airways Ltd v Neeteson-Lemkes[2013] FWCFB 9075; CSL Limited v Chris Papaioannou[2018] FWCFB 1005.

[8] Applicant’s Closing Submissions dated 27 November 2020 at 5.

[9] See ibid at 7-11.

[10] First Sofat Statement at [78].

[11] First Sofat Statement [78] to [79] and [85]; Annexure SRS-4 at 73.

[12] First Sofat Statement at [78].

[13] Morgan-Payler Statement at [27]

[14] Ibid at [23].

[15] Ibid at [44], [50], [73], and [77].

[16] Ibid at [21] to [23], [27] to [28], [50] to [51], and [73] to [97]; Transcript at PN754 to 759;

[17] First Sofat Statement at [45] and [85]; Second Sofat Statement at [5] to [12]. In respect of two brokers, CBD Insurance and Insurance Brokers Australia, Mr Sofat candidly acknowledges that he does not specifically recall speaking with those brokers but provides a cogent explanation as to the efforts he undertook to make contact with brokers he did not know. See Second Sofat Statement at [6(f)].

[18] c.f. First Sofat Statement at [86] to [87]; Morgan-Payler Statement at [77].

[19] Transcript at PN786 to PN793.

[20] Second Sofat Statement at [5]; Transcript at PN477 to PN481.

[21] Transcript at PN783 to PN784; Morgan-Payler Statement at [13].

[22] Transcript at PN791 to PN793.

[23] Morgan-Payler Statement at [23] and [28].

[24] Ibid at [21] to [23]; Transcript at PN635 to 638.

[25] Transcript at PN651.

[26] Ibid at PN674-PN679.

[27] Annexure PMP-9 at 35; Annexure PMP-16 at 52; Exhibit A3 at 3.

[28] Transcript at PN850 to PN890.

[29] Ibid at PN894 to PN899.

[30] Morgan-Payler Statement at [69] to [71]; BHSI letter to Mr Sofat dated 27 July 2020, Annexure SRS-3 at 69.

[31] Ibid.

[32] Transcript at PN915-PN938; Annexure PMP-3.

[33] Morgan-Payler Statement [71]; Transcript at PN524 to PN535.

[34] Sofat Statement at [79] and [81].

[35] Transcript at PN930 to PN933.

[36] Ibid at PN764-PN765.

[37] Ibid at PN772.

[38] Ibid at PN768 to 780.

[39] Ibid at PN763.

[40] Morgan-Payler Statement, at [31]; Transcript at PN214.

[41] Morgan-Payler Statement at [33].

[42] Ibid at [34], 16.

[43] Ibid at [36], 18.

[44] Ibid at [37], 20.

[45] Ibid at [38], 19.

[46] Ibid at [53]- [59].

[47] Ibid at [53], [55], [154], 27.

[48] Transcript at PN280-283.

[49] Morgan-Payler Statement at [59], 33.

[50] Ibid at Item 8 of 33.

[51] Ibid 34.

[52] Ibid at [66], 34.

[53] Ibid at [67], 40.

[54] Ibid at [68], 43-44.

[55] See Morgan-Payler Statement at [71], [74]-[75].

[56] Transcript at PN943-944.

[57] Morgan-Payler Statement at [72], 45.

[58] Ibid 46.

[59] See Applicant’s Closing Submissions dated 27 November 2020 at 11-13.

[60] See Morgan-Payler Statement at [76]-[97].

[61] BHSI letter to Mr Sofat dated 27 July 2020, Annexure SRS-3 at [2(c)]; Morgan-Payler Statement at [105]-[108].

[62] First Sofat Statement at [88]-[100].

[63] Transcript at PN868-PN869.

[64] Morgan-Payler Statement at [99].

[65] First Sofat Statement at [90]-[94].

[66] See Standen v NCH Software Pty Ltd (2019) 290 IR 359, 371-2 [65].

[67] See the approach taken in Standen v NCH Software Pty Ltd (2019) 290 IR 359.

[68] First Sofat Statement at [93]-[94]; Morgan-Payler Statement at [100]-[101]; Transcript at PN868.

[69] Annexure PMP-17 at 57.

[70] Ibid.

[71] Annexure PMP-17 at 56.

[72] First Sofat Statement at [98].

[73] Morgan-Payler Statement at [100].

[74] Ibid at [95].

[75] Annexure PMP-17 at 55.

[76] First Sofat Statement at [95].

[77] Morgan-Payler Statement at [94]-[97], 51-52.

[78] Ibid at [93].

[79] Transcript at PN322-336 and PN483-486.

[80] Ibid at PN344.

[81] Respondent’s Outline of Closing Submissions dated 4 December 2020 at [44]-[46].

[82] First Sofat Statement at [88]-[100]; Morgan-Payler Statement at [98]-[108].

[83] First Sofat Statement at [123]-[130].

[84] Morgan-Payler Statement at [111].

[85] Transcript at PN378.

[86] Morgan-Payler Statement at [114]-[115].

[87] Ibid at [114]; Annexure PMP-18 at 59.

[88] Morgan-Payler Statement at [114].

[89] First Sofat Statement at [136]; Second Sofat Statement at [13].

[90] Morgan-Payler Statement at [117]-[118].

[91] First Sofat Statement at [136].

[92] Ibid at [111]-[117].

[93] Ibid at [114]-[115].

[94] Ibid at [117].

[95] Ibid at [101]-[110].

[96] Morgan-Payler Statement at [132].

[97] First Sofat Statement at [101]; Annexure SRS-3 at 70 [3(a)].

[98] First Sofat Statement at [110].

[99] Transcript at PN108-112.

[100] Morgan-Payler Statement at [130]-[135].

[101] Transcript at PN357-358.

[102] Morgan-Payler Statement at 61.

[103] Transcript at PN363-370.

[104] Morgan-Payler Statement at [128].

[105] See Morgan-Payler Statement at [120]-[129].

[106] Transcript at PN196, and PN377.

[107] Morgan-Payler Statement at [111]-[113]; Transcript at PN376-379.

[108] Transcript at PN350-351 and PN383. See Morgan-Payler Statement at [114] and [118].

[109] Transcript at PN374-375; Morgan-Payler Statement, at [117].

[110] Morgan-Payler Statement at [15].

[111] Applicant’s Closing Submissions dated 27 November 2020 at [16].

[112] Morgan-Payler Statement at [137]-[140]; BHSI letter to Mr Sofat dated 27 July 2020, Annexure SRS-3 at 71 [4(a)].

[113] First Sofat Statement at [137]-[144].

[114] Exhibit A4; Annexure PMP-20 at 63.

[115] Transcript at PN948-PN955.

[116] Morgan-Payler Statement at [142]-[143].

[117] Applicant’s Closing Submissions dated 27 November 2020 at [49].

[118] Transcript at PN392-PN405.

[119] Transcript at PN948- 1005; Exhibit A4.

[120] Morgan-Payler Statement at [137]-[141], 63.

[121] First Sofat Statement at [153](b).

[122] Transcript at PN396-405.

[123] Morgan-Payler Statement at [142]-[144].

[124] Transcript at PN1014-PN1018; Email from Penny Morgan-Payler to Angela Collett, Exhibit A3.

[125] Transcript at PN1018.

[126] First Sofat Statement at [58], [155].

[127] Email from Angela Collett to Penny Morgan-Payler dated 16 July 2020, document 5 in the Applicant’s bundle of documents provided to the Commission on 12 November 2020.

[128] Transcript at PN1021-PN1026.

[129] Email from Ms Morgan-Payler to the Applicant dated 21 July 2020, Exhibit A5 at 7. The meeting was subsequently rescheduled and took place on 23 July 2020: see First Sofat Statement at [58]-[63].

[130] Email from Ms Morgan-Payler to Ms Collett dated 21 July 2020, Exhibit A6.

[131] Ibid at 5.

[132] Exhibit A5 at 4.

[133] Transcript at PN1021.

[134] C.f. Transcript at PN1031.

[135] First Sofat Statement at [63]-[74].

[136] Ibid at [63].

[137] Ibid at [67]-[72].

[138] Termination Letter; First Sofat Statement; Annexure SRS-5 at 76.

[139] (1996) IRCA 568, cited by Cross DP in Martin Bajelis v Reserve Bank of Australia[2020] FWC 3740, [196].

[140] Respondent’s Opening Submissions dated 4 November 2020 at [26]-[36].

[141] Ibid at [40]-[43].

[142] Exhibit A1 at [63].

[143] Ibid.

[144] Exhibit A3 and Exhibit A6.

[145] Exhibit A6.

[146] Exhibit A5 at 4.

[147] Exhibit A1 at 69-72.

[148] Ibid at 73-75.

[149] Morgan-Payler Statement at [156]-[157].

[150] Ibid at [157].

[151] Exhibit A1 at [73].

[152] Ibid at 76-77.

[153] Ibid at 77.

[154] Respondent’s Opening Submissions, at [40]-[43].

[155] Morgan-Payler Statement, at [160].

[156] Exhibit A5 at 1-5; First Sofat Statement at [58]-[62].

[157] Respondent’s Opening Submissions dated 4 November 2020 at [37]-[39]. See also Exhibit A1 at [61(m)], [62], [63] and [73].

[158] Exhibit A5.

[159] Transcript at PN146-161.

[160] Exhibit A1 at [63].

[161] See Victorian Association for the Teaching of English Inc v de Laps (2014) 241 IR 1, at [52].

[162] See summary at paragraph 40 of the Respondent’s Opening Submissions.

[163] Morgan-Payler Statement at [31].

[164] Transcript at PN214.

[165] Morgan-Payler Statement at 25.

[166] Transcript at PN244.

[167] Morgan-Payler Statement at [40], [41].

[168] Ibid at [48], 22-23.

[169] Transcript at PN263-264 and PN268-269.

[170] Morgan-Payler Statement at [48].

[171] Transcript at PN267.

[172] Morgan-Payler Statement at [64]-[65].

[173] Transcript at PN296.

[174] Morgan-Payler Statement at 34.

[175] Applicant’s Closing Submissions dated 27 November 2020 at [22]-[28].

[176] See also paragraph [9] of the Applicant’s Outline of Closing Submissions in Reply dated 7 December 2020, responding to paragraphs [16]-[23] of the Respondent’s Closing Submissions dated 4 December 2020.

[177] Morgan-Payler Statement at [11].

[178] (1998) 88 IR 21.

[179] Tabro Meat Pty Ltd v Heffernan [2011] FWAFB 1080; Read v Golden Square Child Care Centre [2013] FWCFB 762; Bowden v Ottrey Homes Cobram [2013] FWCFB 431.

[180] [2016] FWCFB 7206.

[181] Ibid at [16]-[17].

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