Supneet Bhullar v Open Universities Australia Pty Ltd
[2025] FWC 815
•24 MARCH 2025
| [2025] FWC 815 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Supneet Bhullar
v
Open Universities Australia Pty Ltd
(U2024/14454)
| COMMISSIONER MIRABELLA | MELBOURNE, 24 MARCH 2025 |
Application for unfair dismissal remedy – Applicant repeatedly failed to prosecute her case – application dismissed.
Background
On 3 December 2024, Ms Bhullar made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth) (the Act).
On 13 June 2023, the Applicant first commenced employment as an Associate Student Advisor with Open Universities Australia Pty Ltd (trading as Open Universities Australia) (OUA) (the Respondent). The Respondent is a not-for-profit organisation which provides higher education service via an online platform. After her initial interim contract expired on 2 November 2023, the Applicant was issued with another maximum term contract that was to expire on 18 January 2025.
On 20 November 2024, the Applicant was dismissed due to ongoing performance issues and conduct related matters; including unsatisfactory performance, failure to demonstrate OUA values, and failure to adhere to the code of conduct policy. The Applicant claims her dismissal was unfair, pursuant to s.394 of the Act, submitting that there was no valid reason for her dismissal. The Applicant seeks an apology as a remedy.
The parties did not agree to settle at the member assisted conciliation held on 3 February 2025.
On 6 March 2025, the hearing was held. The Respondent was represented by Luisa Frederico of Counsel. Mitchell Betheras (People Experience Advisor, OUA) and Andi Saunders (Chief People Officer, OUA) both gave evidence for the Respondent. The Applicant did not give any notice that she would be represented, and in any case, as detailed below, she did not attend the hearing.
I am required by s.396 of the Act to decide preliminary matters prior to consideration of the merits of the application. The application was filed within the statutory timeframe and there is no contest that the Applicant was a person protected from unfair dismissal. This was not a case of genuine redundancy, nor is the Respondent a small business.
Procedural History
Failure to attend the staff conciliation conferences
On 20 December 2024, the Applicant emailed the Commission stating that ‘I don’t want any reconciliation talks please’.
On 24 December 2024, the Applicant called the Commission and requested to bypass the conciliation process.
On 2 January 2025, the Applicant emailed the Commission and requested for the matter to proceed to a hearing and that the staff conciliation conference be vacated. The conciliation conference, listed for 15 January 2025, was subsequently vacated as per the Applicant’s request.
Failure to Provide Materials
On 3 January 2025, the matter was allocated to Chambers. On the same day, a Notice of Listing and Directions was sent to the parties scheduling a Microsoft Teams mention/conference to take place on 30 January October 09:00am AEDT. The Notice of Listing and Directions included details explaining the mention/conference process, as well as timeframes:
At least 24 hours before the scheduled start time of the Mention/Conference, each party is to provide the names and direct contact numbers of those individuals attending to [email protected].
If the application does not resolve at or before the Mention/Conference at 9:30am (AEDT) on Thursday, 30 January 2025, it will be listed for arbitration (Merits/Remedy) before Commissioner Mirabella at a time to be confirmed.
The Directions included the following:
1. The Applicant must send to the Commission (the Commission) and to Open Universities Australia Pty Ltd (the Respondent) a copy of all witness statements and submissions the Applicant relies on to support their application, including in relation to remedy, by 4:00pm on Friday, 24 January 2025. This information should cover the matters set out in paragraphs F and J below.
…
3. The Applicant must send to the Commission and to the Respondent any submissions and witness statements in reply by 4:00pm on Friday, 21 February 2025.
…
Page 2 of the notice was headed IMPORTANT INFORMATION and included the following:
A. This notice of listing is definite. A request for an adjournment will only be considered if it:
a)is in writing;
b)has been provided to Commissioner Mirabella and to the other party;
c)provides a substantial reason as to why the date should be changed; and
d)has been made in a timely manner.
D. Non-Compliance: The Commissioner will not accept material that is filed late unless an extension has been granted by the Commissioner before it was due. Requests for an extension of time must be made in writing in a timely manner and specify substantial grounds. Parties must not assume an extension will be granted.
By 24 January 2025, the Applicant had failed to file materials in support of her application as directed in the directions of 3 January 2025.
On 28 January 2025 at 14.45pm, a non-compliance email was sent to the Applicant, seeking an explanation for non-compliance and noting that a failure to do so had ‘the potential to impact on any continuation of the proceedings’.
On 28 January 2025 at 23:18pm, the Applicant replied to the above email, stating that her non-compliance was due to visa and unemployment issues following the termination of her employment.
On 29 January 2025 at 11:20am, further details were requested by the Commission, as to why these matters prevented the Applicant from complying with the Directions.
On 29 January 2025 at 14:06pm, the Applicant emailed Chambers and stated that the dismissal experience was creating stress, resulting from her unemployment, issues with her visa, and alleged harassment whilst she was employed by the Respondent.
On 30 January 2025, a mention/conference on the matter was held.
On 31 January 2025, the Applicant emailed Chambers a brief one-page submission via email, in support of her application. Subsequent to the extensive material filed by the Respondent on 14 February 2025, the Applicant did not provide any further submissions in reply.
Failure to attend the hearing
On 11 February 2025, the Commission emailed the parties a Notice of Listing for the hearing on 6 March 2025 at 10:00am.
On 25 February 2025 at 12:39pm, the Applicant emailed Chambers requesting if she could attend the hearing online. The Applicant stated ‘I don’t have any savings left’, and would be unable to take leave to attend the hearing in person, because she was ‘in talks with some local restaurants who are going to pay cash’. The Commissioner declined to grant the Applicant’s request, and an email was sent to the Applicant advising her that the hearing would proceed in person.
On 25 February 2025 at 15:04pm, the Applicant emailed the Commission, requesting to provide bank statements to demonstrate that she was unable to attend the hearing.
On 28 February 2025, the Applicant emailed the Commission and advised, amongst other things, that she had found a casual job, was behind in her rent, could not afford the Myki fare, and was prioritising attending work at a casual job as opposed to attending her hearing at the Commission. The Applicant stated that she could not afford a lawyer, had no knowledge of the law, and was in no state to fight the Respondent in court. She thanked the Commission for ‘at least lodge [sic] a case’. She also noted some issues with the case, and that she had a camera in her room which may have captured conversations between her and her manager, when she was employed by the Respondent. Overall, this email suggested that the Applicant wanted to discontinue her application.
As a consequence of the email sent by the Applicant on 28 February 2025, Chambers contacted the Applicant by telephone to clarify whether she intended to discontinue her application. The Applicant clarified that she wished to proceed and was advised that she was required to attend the Commission for the hearing. The Applicant confirmed that she would be in attendance for the hearing.
On 3 March 2025 at 11:19am, the Commission sent the parties an Amended Notice of Listing for the hearing/determinative conference on 6 March 2025, adjusting the time to 14.30pm to facilitate witness availability.
On 3 March 2025 at 11:32am, the Applicant responded to the Notice of Listing with ‘Thank you! Received’.
On 6 March 2025 at 12.54pm (approximately 90 minutes prior to the listed 14.30pm hearing), the Applicant emailed the Commission stating that she was unable to attend the hearing because she could not afford the Myki fair, and that she was feeling unwell. The Applicant also attached screenshots of her bank statements to this email.
On 6 March 2025 at 13:49pm, Chambers emailed the Applicant, stating that the Applicant was required to attend the hearing, and that non-attendance at this late notice may have the potential to impact the continuance of proceedings. The Applicant replied to this email advising that she was unable to attend the hearing for financial and health reasons. In this email, the Applicant stated that that she gave ‘full authority to you guys to decide whatever you like on this matter today as I am not going to be in person available’.
On balance, assessing the Applicant’s submissions and interactions with the Commission and her public persona, it is difficult to decide what can be believed about the Applicant’s submissions and matters alleged in correspondence. She had confirmed her attendance at the upcoming hearing on 6 March 2025. About an hour and a half before the actual hearing, the Applicant protested that she was unwell, and in any case she could not afford the Myki fare. The public record shows that the Applicant runs an education business offering, amongst other things, English language course assistance and advice about various government services. From 11 December 2019, the Applicant’s business name ‘SBhullar’ has been registered with ASIC, and the listed business address is the same as the home address the Applicant listed in her Form F2. From this date, an ABN associated with this business name has also been registered. The Applicant’s current LinkedIn profile lists the location of the business as Level 27, 101 Collins Street, Melbourne, Victoria 3000, with a company size of 11-50 employees, and that the company was founded in 2016. Further, an internet search of the Applicant and her ‘SBhullar’ business produces numerous YouTube videos in which the Applicant provides advice of the nature described in her LinkedIn business profile.
The public profile of the Applicant would suggest that, at a bare minimum, she was capable of attending the hearing in this matter as she was apparently a successful business owner. In the Applicant’s correspondence on 25 February 2025, Ms Bhullar mentioned that she had been in discussions with local restaurants ‘who are going to pay cash’, and on 28 February 2025, she advised the Commission that she had a casual job and was prioritising this work instead of attending a hearing at the Commission. It would appear that on balance, the Applicant was likely in receipt of cash income from casual employment, and in such a case it is not possible for me to conclude, even if bank statements were provided, that she did not have the resources to pay the public transport fee to attend the hearing at the Commission. In the alternative, taking into consideration the Applicant’s own correspondence, I cannot conclude that she lacked the funds to pay a Myki fare to attend the hearing.
Was the dismissal harsh, unjust or unreasonable?
Whether a dismissal was harsh, unjust, or unreasonable, depends on an assessment of all the relevant facts and circumstances, including those set out in s.387 of the Act, which are considered below, and in doing so, I have considered all the materials filed by the parties.
Was there a valid reason for the dismissal related to capacity or conduct– s.387(a)
The Applicant was dismissed for a combination of performance and conduct related reasons.
The Applicant submits that there was no valid reason for her dismissal. In her written submissions the Applicant claims that she was awarded a ‘Rising Star’ award, amongst other titles, and that her employer was happy with her performance, with scores equal to her co-workers. The Applicant states that she was popular among her co-workers and only encountered performance issues when her manager joined the team, and then intentionally bullied and harassed her.
In the termination letter dated 20 November 2024, the reasons for dismissal are:
· Failure to meet all the objectives and targets outlined in the Performance Improvement Plan (PIP)
· Failure to demonstrate the Respondent’s values and behaviours
· Unsatisfactory performance to meet the performance outcomes expected
· Failure to adhere to The Respondent’s code of conduct policy
· Warnings were issued on 24 January 2024, 15 July 2024, and a final warning on 24 September 2024 for unsatisfactory behaviour, performance and attendance
· Performance and conduct did not improve.
The Respondent made detailed submissions and gave evidence that the Applicant did not meet the performance outcomes of her role, as outlined in the position description and the PIP. Further, the Applicant incorrectly advised customers, failed to provide quality conversations, received negative feedback and complaints, and did not follow processes which risked damage to customers’ and the Respondent’s reputation.
The Respondent also submitted that the Applicant breached company guidelines and policy by taking ‘Workation Leave’ without approval, sleeping in the office common areas, failing to follow reasonable management directions, having poor punctuality and attendance, and did not communicate sufficiently with her team leader.
On the evidence, I am satisfied that the Applicant breached her employer’s guidelines by not following the guidelines regarding ‘Workation Leave’, including by not seeking prior approval, and posing a cyber security risk to the Respondent and its clients. As a consequence, she received her first written warning on 24 January 2024. From 2 to 13 September 2024, the Applicant was to work from India, but failed to turn up to work on several days and did not provide evidence of an alleged unstable internet connection. It is not disputed, and I so find, that she was found sleeping in the reception and library spaces of the Respondent on 9 May 2024, and was counselled about her conduct. Two months later, she was counselled again about performance and conduct matters.
The Respondent detailed numerous instances in which the Applicant failed to either correctly advise or enrol tertiary students during 2024. On the evidence before me, I am satisfied that the Applicant failed in these core roles of her job as an Associate Student Adviser. The several reasons relating to conduct and performance did provide valid reasons for the Respondent to dismiss the Applicant, who barely made an effort to prosecute her application, and did not even reply to the Respondent’s substantial submissions.
Was the Applicant notified of the valid reason, did she have an opportunity to respond and was she unreasonably refused a support person – s.387(b), (c) and (d).
There is no dispute that the Applicant was notified of the reasons for her dismissal but says ‘…I wasn’t given a fair chance’. The Applicant confirmed that she did not want to attend a meeting to discuss the outcome of the PIP but wanted it in writing. Responding to this request, a letter was emailed to her on 18 November 2024. Amongst other things, the Respondent invited the Applicant to respond to any matters so that the Respondent could consider them prior to finalising an outcome. The Applicant was invited to attend a follow up meeting on 19 November 2024 at 16:00pm. She did not attend this meeting either. I find that the Applicant was notified of the reason for her dismissal and given ample opportunity to respond, and was invited to have a support person present at all discussions relating to performance. Further, that there was no unreasonable refusal for a support person, because no request was made. The criteria in s.387 (b), (c) and (d) support a finding that the dismissal was not unfair.
Was the Applicant warned about any unsatisfactory performance before the dismissal – s.387(e)
The Applicant’s brief written submission is somewhat confusing. The Applicant claims that she informed the Respondent about the alleged bullying, but was not supported by her employer or transferred to a different team as requested. She claims that she felt unsafe at work, was forced to work with her manager, and was repeatedly bullied and harassed. She claims that her manager refused her bathroom breaks and supplied her with ‘low contact’ rated leads.
The Respondent’s submissions regarding performance, warnings and attempts to assist the Applicant to address performance issues are detailed. In summary, the Applicant received warnings, relating to a combination of conduct and performance-based issues, on 24 January, 15 July, and 24 September 2024 before her employment was terminated on 20 November 2024. Even with the opportunity to improve, and with the Respondent’s support, the Applicant failed to meet performance and conduct expectations.
The Respondent claims that issues began to arise between January and October 2024 where the Applicant repeatedly failed to follow reasonable directions, with ongoing performance issues, poor attendance and conduct. On or before 24 January 2024, the Applicant received her first written warning regarding not following the guidelines for ‘Workation Leave’.
Between 27 June and 15 July 2024, the Applicant incorrectly advised students and this resulted in formal complaints. The Applicant received further training from the Respondent.
On 15 July 2024, the Applicant received her second warning. the Applicant’s manager met with her and raised concerns regarding unsatisfactory performance, behaviour and punctuality. Various instances were stated where the Applicant gave the incorrect advice to the Respondent’s customers, and where the Applicant was late to work, with behaviours toward other colleagues which were against the Respondent’s code of conduct policy and values.
The Respondent claims that on approximately 27 June, and then on 10, 12 and 14 July 2024, the Applicant was up to 15 minutes late to work and failed to notify them.
Between 8 to 15 August 2024, the Applicant received further training due to the failure to ask ‘key needs analysis questions’ of students.
On or before August 2024, the Respondent observed that the Applicant’s customer satisfaction scores had decreased.
On or before 24 September 2024, the Applicant received a final written warning for not addressing the performance and behaviour concerns as discussed on 15 July 2024.
On or before 30 September 2024, the four-week PIP commenced. There were four objectives for the Applicant to achieve in that timeframe. Two of the objectives were in relation to performance, and the remaining two were in relation to punctuality and productivity.
The Applicant received a final written warning on 24 September 2024, and was put on a comprehensive PIP, during which she was well supported and provided with feedback. This process gave her an adequate opportunity to improve her performance, but she failed to meet all the relevant objectives of the PIP.
Having regard to the above, I find that the Respondent did warn the Applicant of her unsatisfactory performance before dismissal.
The degree to which the size of the employer’s business and any absence of dedicated human resources management specialists or expertise in the business would be likely to impact on procedures followed in affecting the dismissal – s.387(f) and (g).
There is no evidence before me, or submissions made that the Respondent’s business size (s.387(f)) impacted on the procedures followed by it in dismissing the Applicant. In any case, the Respondent is not a small business. Section 387(g) is not relevant because the Respondent has a dedicated Human Resources team. These are neutral factors in my consideration.
Any other matters considered relevant – s.387(h)
The Applicant alleges that she was bullied (see [38] above).
The Respondent submits that the Applicant’s allegations, that her manager bullied her, were not substantiated and denies the allegations that the Applicant was forced to work with her previous manager. Further, that these concerns were raised after the PIP was concluded.
On the evidence, I am not convinced that the alleged bullying occurred.
That the Applicant did not respond to the pages of submissions and evidence filed by the Respondent, is telling. This is, in spite of her assertions in correspondence with the Commission, that the Respondent had ‘made up’ the reasons for terminating her. Her failure to comply with directions, failure to respond to correspondence from my Chambers, and failure to participate in the hearing suggest that, at best, she was lukewarm about putting any material before the Commission and prosecuting her case.
The Respondent submitted further evidence at the hearing regarding the Applicant’s activities during her employment. Screenshots of the Applicant’s social media accounts were provided, which included a business providing Student Advice Services. The Respondent submits that this business provided services that were identical to the Respondent’s business, therefore creating an ongoing and undeclared conflict of interest.
Without more detailed submissions, I cannot reach a conclusion regarding the allegation of the undeclared conflict of interest.
Conclusion
When all these matters are taken into account, and in light of my findings above, I am not satisfied that the Applicant has been unfairly dismissed. None of the mandatory considerations support a conclusion that the dismissal was harsh, unjust or unreasonable. Her dismissal was proportionate to her sub-par performance and her continuous disregard for following proper processes. She had been afforded procedural fairness, and she was warned and counselled about her performance and conduct, and had ample opportunity to improve.
For these reasons, I find that the Applicant has not been unfairly dismissed.
COMMISSIONER
Hearing details:
In person, Melbourne 6 March 2025
Appearances:
Luisa Frederico of Counsel, the Respondent
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