Angela Hastings v Vantage Holdings Australia Pty Ltd [2021] FWC 5035

1 Fair Work Act 2009 s.394—Unfair dismissal Angela Hastings v Vantage Holdings Australia Pty Ltd (U2021/809) DEPUTY PRESIDENT ASBURY BRISBANE, 16 AUGUST 2021 Application for an unfair dismissal remedy. Overview [1] Ms Angela Hastings (the Applicant) applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of her dismissal by Vantage Holdings Australia Pty Ltd T/A Vantage Building Group (the Respondent/Vantage). On 9 August 2021 I issued an Order requiring compensation to be paid to the Applicant on the basis that I found that she had been unfairly dismissed. These are my reasons for that decision. [2] The Applicant was employed by the Respondent from June 2017 and was dismissed on 14 January 2021. At the time of her dismissal, the Applicant was employed as a New Homes Sales Consultant on a full-time basis. [3] The Applicant’s terms of employment were set out in a written contract dated 23 April 2020. The Respondent stated in its Form F3 – Employer response that the Applicant’s employment was covered by the Miscellaneous Award 2020. the Applicant contends that she was covered by the Real Estate Industry Award 2020. It is not necessary to determine this issue on the basis that there is no dispute that the Applicant was covered by a modern award. [4] The Applicant was dismissed for a number of reasons which were variously described by the Respondent as rude behaviour towards her managers, extreme disrespect to the Respondent’s Director and an ongoing failure to acknowledge performance and behavioural shortfalls. The Applicant contends that she was unfairly dismissed as there was no valid reason for her dismissal, and she had not been given any prior warnings in relation to her conduct or performance or offered an opportunity to improve. The Applicant also states that she was not provided with written notice of termination or an employment separation certificate. [5] Section 396 of the Act requires that four specified matters must be decided before the merits of the application may be considered. There was no contest between the parties regarding these matters, and I find that: [2021] FWC 5035 REASONS FOR DECISION -- 1 of 47 -- [2021] FWC 5035 2 (a) the application was made within the period required by s.394(2); (b) The Applicant was a person protected from unfair dismissal on the basis that notwithstanding that her income may have exceeded the high income threshold she was covered by a modern award; (c) the Respondent was not a “small business employer” as defined in s.23 of the FW Act; and (d) the dismissal was not a case of genuine redundancy. [6] Consistent with s.397 of the Act, I decided to conduct a hearing on the basis that there were disputed issues of fact and I considered this to be the most appropriate means to resolve them. A hearing was conducted on 14 April 2021 for the purpose of dealing with the question of whether permission should be granted for the Applicant to be legally represented. The substantive hearing was conducted on 19 and 20 April, and closing submissions were made on 6 May 2021. At the hearing, the Applicant was represented by Ms P Willoughby of Counsel, instructed by Mr W Davis of Stonegate Legal, and the Respondent was represented by Ms E Kirkby of Master Builders Queensland. The Respondent as a member of the Master Builders Queensland was represented as of right. Permission was granted for the Applicant to be legally represented on the basis that I was satisfied that the matter involves some complexity, legal representation would allow the matter to be dealt with more efficiently and no issues of fairness arose. [7] The Applicant gave evidence on her own behalf at the hearing.1 Evidence was also given for the Applicant by:  Ms Donna McIntosh, Real Estate Salesperson and former Salesperson for the Respondent from June 2019 to May 2020;2  Ms Michelle Comerford, self-employed and friend of the Applicant;3  Ms Kate Mayne, Sales Agent and former Sales Manager of the Respondent from August 2016 to May 2020;4 and  Mr Brad Kopcikas-Yates – New Home Sales Consultant and former employee of the Respondent from 2016 until October 2020.5 [8] Evidence for the Respondent was given by:  Kendra Bullock, HR and Interior Design Manager for the Respondent;6  Tonia Ivanni, Sales Manager for the Respondent;7  Susan Winter, Sales and Contracts Coordinator for the Respondent;8  Shawnee Collier, Marketing Coordinator for the Respondent;9  Sarah Scott, Salesperson for the Respondent;10 and  Shane O’Brien, Director of the Respondent.11 [9] Ms McIntosh and Ms Comerford attended the hearing but were not required for cross- examination and their statements were tendered without objection. Evidence Background -- 2 of 47 -- [2021] FWC 5035 3 [10] The Applicant stated that she commenced employment with Vantage in June 2017 as a New Homes Sales Consultant and was employed in that capacity until her dismissal on 14 January 2021. The Respondent’s evidence is that the Applicant commenced employment in July 2017. The Applicant was paid under a debit/credit arrangement an “advance” of $915.00 per week and statutory superannuation contributions, which were “debited” against commissions earned. The Applicant’s evidence is that in the year prior to her dismissal, she earned around $200,000.00. [11] The Applicant was initially employed on a full-time basis, but was demoted in 2018 by the then Sales Manager, Ms Mayne, to a part-time role as sales host, due to underperformance and not meeting sales KPI’s. In mid-February 2019, the Applicant was reinstated as a full-time salesperson. [12] The Applicant initially understood that she was employed under the Miscellaneous Workers Award, but now understands the correct award to be the Real Estate Award. The Respondent asserted that on advice given by the Office of the Fair Work Ombudsman, the Applicant was covered by the Miscellaneous Award. There was an employment contract tendered by the Respondent that neither party signed but which both acted generally in accordance with. A condition of the employment contract was that the display home in the Harmony Estate would be used as an office by the Applicant and the display was to be open from 10.00 am to 4.00 pm, and “manned” by the Applicant from 9.00 am to 5.00 pm. Despite this, the Applicant said that she occasionally left at 4.00 – 4.30 pm for a variety of reasons, including:  Attending meetings with potential clients at land sales offices;  Facilitating client contract signings at their homes or place of work;  Visiting estate land sites to view land and take photos to send to the Vantage Construction Manager for approval;  Meeting clients on their land and showing them through built homes;  Visiting Land sales offices to discuss upcoming land releases and build rapport; and  Attending Developer meetings and land release updates. [13] The Applicant stated that she enjoyed her job and engaged well with all staff and clients. The Applicant also stated that she had had good online reviews from clients and that she could obtain references from many clients. [14] Ms Mayne gave evidence about the Applicant’s demotion to a part-time role for failure to meet KPI’s, stating that she was under a lot of pressure to achieve sales and the Company’s Directors had said to her that if she did not release the Applicant from employment, they would. Ms Mayne also said that she was under pressure not to offer the Applicant a contract at all, however the Applicant secured the part time contract by writing to the Directors and pleading her case. [15] In her oral evidence, the Applicant said that after she had worked for the Respondent for one year, her contract ended and as she was not meeting sales targets her contract was not going to be renewed. The Applicant wanted to stay with the Company and emailed the Directors and Ms Mayne, her sales manager at the time, and requested them to consider placing her in a four day per week hostess role on the basis that she would still sell. At the end of 2018, the Applicant was offered a return to her full-time role by Ms Mayne, located in the Harmony Estate.12 At that time the Applicant was averaging 3 sales a month which was her -- 3 of 47 -- [2021] FWC 5035 4 target. Ms Mayne said that that after being put back into a full-time position, the Applicant was achieving her sales and her performance was great. The Applicant also said that in the last 6 months of her employment, she doubled her sales. [16] The Applicant said that the criticism that she was failing to obtain the details of all visitors to the display homes was recent. The Applicant maintained that she had done everything possible to welcome and assist visitors to the display, and all known enquires were dealt with as soon as possible and to suit the visitor’s availability. [17] The Applicant said that another recent criticism was that she did not communicate with the Respondent’s contract administration team. The Applicant denies this allegation and notes that frustrations had emerged as clients were not always available, and sometimes contract signings were postponed because of clients. The Applicant also said that she has never had a complaint from a client and has only had one performance review/probation period meeting which was six months after she commenced with the business. Further, in her oral evidence, the Applicant stated that her managers, being Ms Mayne until April 2020, and Mr Matt Burness and Ms Tonia Ivanni after that date, had never given her a warning nor performance managed her. [18] Ms McIntosh said that the Applicant was always helpful and encouraging, and that the Applicant would often discuss with her ideas of how to get more buyers interested. Ms McIntosh notes she had also accepted a further role with Vantage from about July 2020, and from October 2020 she was working with the Applicant at Harmony. Her evidence is that a typical Saturday with the Applicant involved fielding dozens of enquiries, and they were extremely busy and attempting to meet the volume of clients. Ms McIntosh states the Applicant would always go out of her way to ensure clients were looked after, make appointments at less busy times and walk them through the process. Ms McIntosh also said that she has witnessed the Applicant’s customer service and sales skills first-hand and was shocked to hear the Applicant had been dismissed for lack of service to the company and clients. Further, Ms McIntosh said that she found the work environment to be toxic and disruptive, and that Mr O’Brien would make erratic decisions and often change his mind about what he wanted. [19] Mr Kopcikas-Yates said that the Respondent did not offer sufficient support or training to achieve KPIs, and salespeople were often overworked. However, he always knew the Applicant to be an outstanding customer-focused sales professional, who exceeded her KPIs. Ms Mayne said that during her time as Sales Manager for Vantage, she always found the Applicant to be punctual, pleasant and well presented. According to Ms Mayne, the Applicant built a business rapport with developers, her colleagues, and customers alike and was always highly regarded within the industry for her knowledge and work ethic. Ms Mayne also said that that she never received a complaint from a customer or the Estate Sales or Management team at Harmony and that in her opinion, the Applicant always went above and beyond her duties to help at other Vantage Homes Display openings or events. [20] In oral evidence, Ms Mayne said that in 2018 when it was decided not to renew the Applicant’s contract, Ms Mayne was under a lot of pressure to achieve sales as a whole and she was told that if she did not “release” the Applicant from her employment, the Company would. The Applicant was able to plead her case to the Directors and was offered a four day a week job to see if she could improve her performance. The Applicant did well during this time and was offered a full-time role when it became available. -- 4 of 47 -- [2021] FWC 5035 5 [21] Ms Bullock said in her evidence that Ms Mayne did not consider the Applicant to be an exemplary employee and tendered an email sent by Ms Mayne to the Applicant on 29 September 2018 in the following terms: “WTF?? This was part of your role as hostess 4 days a week – to ensure displays look good … So far this month 0 sales and dead plants … Not happy”.13 [22] In cross-examination, Ms Mayne was shown the email sent to the Applicant on 29 September 2018 and said that this was a bit of a joke, and she was pointing out that the Applicant had to fight to get her job back by pleading to the Directors of the Respondent and that the Applicant needed to give it her best. Ms Mayne was also shown a warning letter that she received in relation to her performance as sales manager and agreed that she resigned her employment the day she received that letter.14 [23] Ms Bullock also said that the Applicant had a tendency to leave other employees to “pick up her slack”, including by other employees contacting clients for information on behalf of the Applicant or performing data entry for the Applicant. According to Ms Bullock the Applicant would also leave a display home filthy at the end of display. Ms Scott said that the Applicant had in the past told her to put false appointments into the diary, so that the Applicant could leave a display home early. [24] As to administrative and contract tasks, Ms Collier said that in the past, there had been an issue with sales staff not providing all required information for contracts. After this issue was raised, all sales staff provided the required details, except for the Applicant, who consistently failed to do so. Ms Collier said that the Applicant would often be short with her, and would insist she had uploaded all relevant information, even though it was not showing in the system. The Applicant would regularly request contracts with short notice and would often give excuses about why she needed the quick turnaround, including lying about clients having plans to be away. Further, Ms Collier said that the Applicant’s clients frequently requested post-contract variations, at a rate well in excess of other sales staff. The Applicant’s clients also had expectations that they could have changes made and were upset when they were charged an unexpected administration fee. [25] Because Ms Collier has sales management experience, she was asked to attend display homes and give feedback. When Ms Collier went to displays run by the Applicant, they were dirty and unkept, with mouse droppings in the bed and marks on walls. On 13 June 2020, Ms Collier made a report about these matters in the form of an email and sent it the General Manager of the Respondent, Mr Burness.15 Ms Collier also tendered emails where the Applicant had communicated requests for things to be done to administrative and contracts staff and had failed to provide sufficient details for them to undertake the tasks as requested.16 Further, Ms Collier said that she had heard and observed the Applicant requesting clients to request changes at a colour consultation, which is after contract signing and approval, and not an appropriate time for changes. Ms Collier also reported this issue to Mr Burness by email dated 15 June 2020.17 Ms Winter supported Ms Collier’s evidence as to the Applicant failing to give required information for contracts. Ms Winter also said that the Applicant was reluctant to follow processes and would be “uncomfortably aggressive” when asked to comply with them. -- 5 of 47 -- [2021] FWC 5035 6 [26] Under cross-examination, Ms Collier agreed that she was not the Applicant’s manager. Ms Collier also agreed that she had gathered the documents attached to her witness statement a few weeks ago.18 Ms Collier also agreed that it was possible that the Applicant had misunderstood what she was told by clients rather than the Applicant being dishonest and accepted the possibility that the Applicant gave her the wrong information due to a misunderstanding. Ms Collier also confirmed that the customers in question had not alleged that the Applicant was lying but had simply indicated that they were not going away at the time that the Applicant said they would be away and that the customers seemed surprised to hear that Ms Collier thought that they would be away.19 [27] Mr O’Brien said that the sales team are required to have a focus on customer experience “from start to finish” and that an important role of sales staff was to take details of potential clients in the display home, because if they did not, it would create an impression of disinterest and opportunity for later follow up would be lost. Ms Bullock said in her oral evidence that Ms Ivanni was hired as a new Sales Manager in October 2020, with the objective of improving the service levels of consultants. In relation to the concerns that caused the Company to hire Ms Ivanni, Ms Bullock said: “--- The company felt that they hadn't had sufficient management direction before, that their sales process needed improvement, that they needed someone, I guess to nurture their sales technique, that some of the sales technique might have been missing. Some of the other issues was that we didn't feel that we were capturing all the people that were coming into the displays and that we probably - we felt that we weren't getting enough sales out of the display homes for the product that we had on display.”20 [28] Ms Bullock also said that she had conversations with Ms Ivanni about the Applicant’s performance and said that Ms Ivanni was “up and down” about whether the Applicant was “on board” with where the Company was trying to get the sales team and that Ms Ivanni reported that the Applicant would say that she was on board and then a week or so later, the Applicant’s commitment would drop off again.21 [29] Ms Ivanni’s evidence was that upon commencing with the Company, she identified that the Applicant routinely failed to provide sales information to the contracts team, sought to fast track projects under false pretences and would leave work for others to complete. Ms Ivanni said that it was apparent the Applicant had an attitude of “doing her bit on the day”, with no follow up. Ms Ivanni said that when staff were advised of the requirement to take a name and number for every visitor, the Applicant had said “you’re joking right I am not going to take everyone’s details”. Ms Ivanni said that this is only one example of the Applicant’s negativity and “push back” on changes in the company. [30] As a further example, Ms Ivanni said that the Applicant repeatedly used promotions that had been withdrawn. Ms Ivanni said that this was extremely frustrating as no other salesperson was using the out-of-date promotions, and the Applicant had been told repeatedly not to do so. Ms Ivanni tendered an email chain of 3 November 2020, in relation to the use by the Applicant of a promotion referred to as “Our Gift to You”22 which involves free items being given to purchasers as an incentive to enter into a contract. In the email chain, commencing with an email sent at 2:47 pm, Ms Winter, the Respondent’s Sales and Contracts Co-ordinator, states that: “This one is good to go, apart from having another Our Gift To You that you need to get approval for…”. Ms Ivanni was copied into this email. At 3.15 pm on 3 November 2021, the Applicant emailed Ms Ivanni asking for approval for “this one”. Ms Ivanni’s response sent at 3.51 pm, asks the Applicant to send a list of all customers this upgrade has been promised to, and states that her conversations with the Applicant have been -- 6 of 47 -- [2021] FWC 5035 7 that all offers need to be approved prior to offering them. Ms Ivanni’s email goes on to state that: “Over the last 4 weeks no one else has asked for approval of this offer except yourself on a regular basis. So, either you are unable to sell homes without giving away something, in which case you are in need of sales training or, you don’t understand the terms of the deal. Which is it?” [31] In an emailed response sent at 4.51 pm, the Applicant said: “I don’t appreciate the tone of your email, you have known me for 5 minutes and you have the audacity to say I can’t sell homes. This promotion has been with the Company since I started and all Sales Consultants have taken advantage of this, and now all of a sudden you need approval? I think we may need to have a chat in person in regards to your email.” [32] Ms Ivanni said that when she pointed out in an email to the Applicant that she should be able to close a sale without relying on expensive promotions, the Applicant became angry and approached HR to mediate a dispute between them. Ms Ivanni said that there was no dispute, and she was questioning the Applicant’s reliance on props as was her responsibility as her manager. Ms Ivanni also said that it is her belief that if you are good at what you do, you did not need to use a promotion all the time and that it was intended to be a sweetener to get a deal across the line. Ms Ivanni said that approximately one month after she commenced employment with the Respondent she told sales staff: “We are just going to can it. Try to sell without it.” In her oral evidence Ms Ivanni said: “--- Yes. And there were some that I said to her, 'That's fine then if you promise that to somebody.' But I kept saying, 'From here on end let's stop using it.' I wanted to give her a little bit of leeway but there was still the can I do the my gift to you? Can I do the my gift to you? One I think was both the 2000 and the my gift to you. And was that exclusively where a quote had been issued before the instruction not to use these? Or was it ongoing - - -? --- Some were before and some were ongoing, yes – that I could see.”23 [33] Ms Ivanni also said in her oral evidence that she saw a pattern of behaviour involving the Applicant where there were a lot of emails going back and forth in which Ms Winter was stating to at the Applicant that she had not done something properly with respect to information provided to the contract administrators. In response to a question about whether Ms Ivanni had ever had a conversation with the Applicant about not being at display homes at required times, Ms Ivanni said that her tactic was to start fresh and to plant ideas before changing something.24 [34] In cross-examination, Ms Ivanni said that the Applicant’s sales performance was adequate in the three months after Ms Ivanni started employment and the Applicant met her target of four sales per month, sometimes making up to six sales. Ms Ivanni had approximately two one-on-one meetings with the Applicant during this time and did not coach the Applicant because the Applicant said that she did not need coaching. Ms Ivanni attended the display the Applicant was working at two or three times during this period. Ms Ivanni agreed that she did not give the Applicant a warning or put her on an improvement plan. -- 7 of 47 -- [2021] FWC 5035 8 [35] Ms Ivanni could not give an exact date when the “Our Gift To You” promotion was withdrawn and agreed that sometimes clients would come in knowing about the promotion and ask for it and where the promotion was in a quote provided before the promotion was withdrawn, it would have to be honoured. In re-examination Ms Ivanni said that the use of the promotion that she approved was where it was included in a quote and not otherwise. [36] Ms Bullock also tendered the email chain between Ms Ivanni and the Applicant in relation to the “Our Gift To You” promotion, with an additional email when the chain was forwarded to her by the Applicant on 3 November 2020. In that additional email the Applicant requested that Ms Bullock set up a “conflict resolution meeting” involving Ms Bullock, Ms Ivanni and the Applicant. The Applicant contends in the email that she had received oral approval from Ms Ivanni to use the “Our Gift To You” promotion to lock in six contracts and that when Ms Ivanni’s official approval had been sought, she had sent the email questioning the Applicant’s sales ability. The Applicant also referred to her emailed response and said “sorry I was not happy when I received this.25 [37] Ms Bullock also tendered other internal emails said to evidence other issues with the Applicant’s work performance including the Applicant attempting to rush administrative work on the basis that clients were going on holidays when this was not the case26 and emails from Ms Winter about various administrative issues with contracts and other documents involving the Applicant.27 Ms Bullock said that one of the issues the Respondent had with the Applicant was that she was not honest and would be dishonest to prioritise her requirements. This was said to be shown by the emails tendered by Ms Bullock where the Applicant had attempted to push for a short notice weekend task to be undertaken for a client on the basis that the client was away when this was not the case. [38] Under cross-examination, Ms Bullock agreed that it is the Company’s responsibility to ensure that employees are trained, directed and supported. Ms Bullock also agreed that the previous Sales Manager Ms Mayne, ceased employment because the Respondent was not happy with her performance of the role of sales manager and that for a five month period after Ms Mayne left, there was no sales manager. Ms Bullock also agreed that Ms Ivanni started in the position of sales manager in October 2020 and within three months the Applicant’s employment was terminated. [39] In relation to the “Our Gift To You” promotion, Ms Bullock agreed that the Applicant told her that she had approval from Ms Ivanni for the promotion to be given to her customers. In response to the proposition that Ms Ivanni’s email to the Applicant of 3 November 2021 was aggressive and that the Applicant had requested Ms Bullock’s assistance to mediate the relationship, Ms Bullock said that she did not arrange mediation because she believed that the email was reasonable management action. Ms Bullock also said that she spoke to Ms Ivanni who sent an email to the Applicant informing her that she did not intend the email to “come across as whatever it was” and that she had asked the Applicant not to offer the promotion and she was still using it.28 [40] Under cross-examination, Ms Bullock agreed that she did not given the Applicant a warning about making false statements to obtain fast tracked administration work and that the Applicant may have misunderstood what she was told by clients about being unavailable rather than lying.29 In relation to the cleanliness of display homes, Ms Bullock agreed that the mess in a display home depicted in a photograph appended to her witness statement, was left by a team of removalists who were moving items from one display home to another during a -- 8 of 47 -- [2021] FWC 5035 9 closure of display homes because of COVID-19. However, Ms Bullock maintained that the Applicant was helping the removalist team to take everything out of the display home. [41] Ms Scott said in her evidence that as a new salesperson she was open to the opinions of the Applicant as she had no previous sales experience. Ms Scott also said that after sales meetings the Applicant would telephone her and make disrespectful comments about Ms Ivanni such as “we shouldn’t be doing this stuff” and “Tonia [Ivanni] just sits in the office, what would she know” and “what’s with this lady and her forms”. Ms Scott also said that the Applicant told her to put false appointments into the diary so that she could leave the display home early. [42] Under cross-examination, Ms Scott agreed that she did not report that the Applicant had spoken disrespectfully about Ms Ivanni at the time this occurred. Ms Scott also said that she prepared her statement. Ms Scott was referred to a document filed with her statement headed “Hellosign Audit Trail” indicating that the statement was sent to her by Ms Bullock on 30 March 2021 at 04:05:47; viewed by Ms Scott at 04:09:05; and signed by Ms Scott at 04:09:47. Ms Scott did not dispute the proposition that the statement was sent to her by Ms Bullock and that she signed it after looking at the statement for 42 seconds.30 In re- examination Ms Scott said that the statement had previously been sent to her in draft form on the day that it was signed, and agreed that she had an opportunity to look at its content before signing the statement and was happy with that content. [43] Ms Winter said in her evidence that her dealings with the Applicant caused frustration as the Applicant consistently did not provide required information to contracts administration staff and had to be followed up repeatedly to provide details. Ms Winter also said that the Applicant would repeatedly say that she had uploaded information into the system when this was not the case. Ms Winter tendered a range of email correspondence evidencing attempts to obtain information from the Applicant; resulting delays to client builds; repeated requests and reminders about certain documents; and use of promotions and discounts after they had been discontinued. The material tendered by Ms Winter included an email trail evidencing the Applicant denying knowledge of a promotion having been discontinued months earlier, in circumstances where the cancellation was discussed and confirmed at a team meeting attended by the Applicant. [44] Under cross-examination, Ms Winter agreed that she was not the Applicant’s manager and had no knowledge as to whether the sales manager had ever spoken with the Applicant about the issues identified in her statement. Ms Winter confirmed that she gathered the documents attached to her statement approximately one month before the hearing.31 [45] The Applicant’s evidence is that the allegations about her using out of date promotions are not true. The Applicant states that while the Respondent eventually cancelled the promotion, some clients still had the promotion in their quote, and she therefore thought that where the quote had not reached its 30-day expiry, she should honour the promotion. Further the Applicant stated that all contracts were reviewed by Vantage management and approved before signing. The Applicant’s evidence is that she did not promote the use of the Our Gift To You” promotion after it was ceased. The Applicant also said that the further “recent criticism” about her lack of communication with the administrative team, was to the best of her knowledge, not true. -- 9 of 47 -- [2021] FWC 5035 10 [46] In her oral evidence, the Applicant said that the “Our Gift To You” promotion had been in effect “on and off” since 2017 when she commenced employment and had expired a couple of times. When Ms Ivanni commenced employment, the promotion had not expired and then the promotion was cancelled, so that it was difficult to keep track. Meeting on 11 January 2021 [47] The events which led to the termination of the Applicant’s employment commenced on Monday 11 January 2021. Mr O’Brien states that he received feedback from people who attended the display homes run by Ms Scott and the Applicant on Saturday, 9 January 2021, to the effect that they had been ignored by the sales team. Ms Ivanni confirmed that the Applicant was located at “Harmony” and the other salesperson, Ms Scott, was located at “Aura”. Mr O’Brien said that he decided to meet with Ms Scott and the Applicant, to express that the culture of customer service was being enforced from the top. Ms Ivanni’s evidence about the events which led to the 11 January meeting was as follows: “Can you explain why that meeting was called? --- Yes. So I had previously had one of the accounting staff come to us and say that her friend wanted to purchase and she was interested in buying through Vantage and we offer like a referral system to staff if they refer someone in. And I said to her, ‘That's great. Give me her name and numbers.’ And I did send to both Angela and to Sarah, who's at Aura, her details – her name, and phone number – and I said, ‘Can you keep a lookout for this girl. She is a friend of Cassie's make sure that – you know – give her great customer service.’ I noticed nothing happened for a while and then I saw Cassie and I said, ‘What happened with your friend? Did she end up buying?’ And she said, ‘Yes, I didn't want to say anything but – yes, she did.’ And she bought somewhere else because she went into the displays and she wasn't acknowledged on the way in or the way out and not followed up and she said that she went to – I think it was McCarthy Homes at the time and said the lady there was just so open-arms. Got colouring pencils out for the kids. Warm and she said – like I rang this lady – I said, ‘Can you tell me exactly what happened?’ Because I said to Cassie, ‘Can I ring her?’ And she said, ‘Look, I just’ – she said, ‘We wanted to buy with Vantage and we didn't actually like the home we bought as much but this lady was so welcoming and understanding and just couldn't do enough for us. And we just thought that's worth so much.’ Yes. So that you mentioned that that was at two different display homes? --- Yes. Yes. So that was – she went through Aura and she went through Harmony.”32 [48] Under cross-examination, Ms Ivanni was shown the email dated 13 January 202133 setting out examples of issues with the Applicant’s work performance and agreed that the email referred to an email sent to the Applicant on 20 November 2020 about “friends of Cassie from accounts and referred potential buyer” coming through the displays and to look after them. Ms Ivanni agreed that this matter was not raised until the meeting on 11 January 2021 which was some time after the event.34 Ms Ivanni also agreed that none of the other issues listed in that email were previously raised with the Applicant. [49] Mr O’Brien said that he and Ms Ivanni first had a discussion with Ms Scott who acknowledged that there had been repeated instruction to take client details and agreed to do so in the future. Mr O’Brien says that Ms Scott appeared to appreciate the feedback and advice on how to improve her sales techniques. Ms Ivanni’s evidence supports this, and she states that Ms Scott has since improved her service levels and sales. [50] Ms Scott’s evidence also confirms that the meeting ended in a friendly manner and that she accepted the views that Mr O’Brien expressed. Ms Scott said that the issues raised at the meeting were that she had not taken the names and contact details of clients which Ms Ivanni had asked sales staff to do either by using a sign in sheet or a QR Code. Ms Scott said -- 10 of 47 -- [2021] FWC 5035 11 that in the meeting she acknowledged that this had not been done despite a clear instruction. Ms Scott also said that it was clear to her that she had been incorrect in listening to the Applicant about her criticism of the new processes and of Ms Ivanni and she communicated this to Mr O’Brien and Ms Ivanni at the meeting. Further, Ms Scott said that Ms Ivanni told her that she was happy to spend 2 – 3 hours per week with Ms Scott providing extra training in order to improve Ms Scott’s sales. According to Ms Scott her sales skill improved as a result of this additional training. Ms Scott said that clients given to her after the Applicant left employment, who were part way through the sales process, have had documentation with missing information, wrong plans, wrong lots, incorrect advice about upgrades and clients had missed deadlines. [51] Ms Ivanni said that the meeting with the Applicant went in an entirely different direction to the meeting with Ms Scott and that the Applicant entered the room looking tense and aggressive. Ms Ivanni started the meeting by explaining the situation with the buyers who had come through and had not been acknowledged. Ms Ivanni said that Mr O’Brien spoke about how the Company had been implementing a new culture which had been spoken about at meetings attended by the Applicant, that it was expected that sales team members would follow direction and that this was non-negotiable. [52] Ms Ivanni said that the Applicant got defensive and stated that she got great reviews from her clients and that Mr O’Brien and Ms Ivanni were focusing on one sale that she missed. Ms Ivanni said that the Applicant was told that they were trying to have a discussion and that there was no need for the Applicant to get defensive. Ms Ivanni also said that she told the Applicant that the Applicant received the most complaints in the office about not calling people back and that she is aggressive with the internal team. [53] According to Ms Ivanni, the Applicant was asked several times by Mr O’Brien why she was getting defensive and Mr O’Brien told the Applicant it was not the right attitude and was “pissing him off”. Ms Ivanni said that the Applicant said that Ms Ivanni just sat in head office all day “banging out emails” and did not know what the Applicant did. In response, Ms Ivanni said that she stated to the Applicant: “Angela just be really clear, you don’t manage me, I manage you” and that this was not Ms Ivanni’s first time as a sales manager. [54] Ms Ivanni maintained that during the meeting on 11 January and throughout the Applicant’s exchange with Mr O’Brien, the Applicant did not appear fearful, and was “leaning in to conflict”, telling Ms Ivanni and Mr O’Brien that they did not know their jobs and denying that they had the capacity to make an assessment of her performance. Ms Ivanni also said that Mr O’Brien did not raise his voice and was not aggressive. According to Ms Ivanni, Mr O’Brien spoke firmly but did not slam his fist on the desk as alleged. Ms Ivanni confirmed that Mr O’Brien did tell the Applicant that if she cannot get on board with what they are trying to do here, then she was not right for their business and could “f off”. Ms Ivanni stated that the Applicant replied with words to the effect of: “well clearly I'm not and will leave and you can go fuck yourself Shane” and walked out of the meeting. Ms Ivanni said that based on the Applicant’s actions and statement, she believed the Applicant had resigned and she advised Ms Bullock of that. Mr O’Brien also said that he believed the Applicant had resigned. [55] Ms Ivanni confirmed in her oral evidence that the meeting on 11 January 2021 was called as a result of concerns about reports from the friend of a member of the Respondent’s accounting staff – Cassie – who complained of not being given service when she visited the -- 11 of 47 -- [2021] FWC 5035 12 display at Harmony, with her husband and children. Ms Ivanni said that she rang the customer to check details of her complaint and was told that she had bought from a competitor because she received better treatment on the day she visited the display with her children.35 Ms Ivanni agreed under cross-examination as to the names of the customers and that the Applicant had in fact acknowledged that customer entering the display house but had been with another customer at the time. Ms Ivanni also agreed that the customer who complained had stated that she was acknowledged when she entered the display home but that her details were not taken, and this was the extent of the Applicant’s failure.36 [56] In her oral evidence, Ms Ivanni said that Mr O’Brien was not banging the table and did not raise his voice, but that his demeanour indicated that he was frustrated. In relation to Mr O’Brien swearing during the meeting, Ms Ivanni said: “Did he swear? --- Yes. Yes. And what was the context of him swearing? --- Oh, everyone knows Shane. It's ‘Fuck this.’ And ‘Fuck that.’ He's a builder and – you know – so he was just sort of more like, ‘Like, this is starting to fucking really piss me off.’ Yes, he did swear. But it wasn't an aggressive like – you know – like, ‘Go get fucked. You bitch.’ Or anything like that. It wasn't anything like that. Yes. He did at the end. He got upset. But not aggressively. And did the applicant swear? --- Yes. And what did she say? --- You can go fuck yourself, Shane. Yes. And what part of the meeting was that? ---- Towards the end. Yes. Yes.”37 [57] Under cross-examination, Ms Ivanni agreed that Mr O’Brien swore first but did not accept that he swore at the Applicant and said that: “He swore at her in a matter of fact way, saying ‘I’m getting frustrated Ange’. Like, yes, it wasn’t an attack.” Ms Ivanni also had the following exchange with Counsel for the Applicant in relation to Mr O’Brien swearing: “In fact what Shane said to her was, ‘I don't like your fucking attitude, girlfriend. Why are you getting so defensive?’ Correct? --- I don't remember that being said like that, no. And he said, ‘If you don't like it here you can fuck off. This is my business’, didn't he? --- He said, ‘This is my business’, definitely. And as she left he called after her, ‘well, fuck off then.’ Correct? --- After she said, ‘You can go get fucked, Shane’, and got up and stormed out.”38 [58] In relation to the decision to terminate the Applicant’s employment, Ms Ivanni had the following exchange with Counsel for the Applicant: “So did you believe that her behaviour was consistent with ongoing employment? --- Yes, I did. I didn't think it was consistent with ongoing work So you decided on 11 January that you were going to terminate her employment because her conduct was inconsistent, didn't you? --- No, we went into that meeting to - like, after the meeting, do you mean? After the meeting? --- No, we didn't decide in that moment that we were going to terminate her employment; no. Okay? --- We just - to be honest, at the end of the meeting we were quite shocked and gobsmacked that it went that way. -- 12 of 47 -- [2021] FWC 5035 13 So the performance issues that you've raised, you didn't start to gather those until after the event. Correct? --- Well, no, they've been - they were ongoing through the three months, but I was only But you'd never raised it with her? --- No, I hadn't, because I was going to give her the three months and then after that I was going to gather this information and say, "Look, I've observed you for three months and I think now even" - this is where we were going to start with that conversation. So on 11 January you changed your mind and you decided to address these issues? --- We decided to address that particular issue, and then afterwards we said, "Well, look, we really" - but she had resigned after the meeting - during the meeting.”39 [59] Mr O’Brien also said that the Applicant appeared tense and aggressive when she entered the room and stated that before she even sat down, the Applicant said words to the effect of “what am I here for” and sat with her arms crossed. Mr O’Brien said that he and Ms Ivanni started the meeting as they had with Ms Scott, explaining that they had feedback from a friend of a staff member, who had gone through the display home on Saturday and who was not acknowledged or spoken to. Mr O’Brien explained this was not acceptable, as they were trying to build their customer service. Mr O’Brien said that the Applicant quickly became defensive and angry, denying that she had not taken names of persons who visited the display home. [60] Mr O’Brien also said that the Applicant started attacking Ms Ivanni’s management, accusing her of not going to the displays often enough to know what is going on, and stating that Ms Ivanni did not know how to manage a sales team. Mr O’Brien said that he told the Applicant to stop, that this was not about Ms Ivanni, it was about her needing to improve her sales performance. [61] Further, Mr O’Brien said that he explained that this was about their reputation and that one poor experience can ruin years of building good will. According to Mr O’Brien, the Applicant then accused him of not knowing how to run a business, and he told her that she had crossed the line. Mr O’Brien said that he also confirmed that the meeting was only about the Applicant needing to improve her work, and that if she did not want to do this, she could leave. According to Mr O’Brien, the Applicant stood up and said: “alright I am fucking leaving”. Further, Mr O’Brien said that on exiting the meeting, the Applicant told him to “go fuck himself” or words to that effect. [62] In oral evidence, Mr O’Brien said that it was a concern that the Applicant had not taken details of a potential customer because all salespersons know that they may get “mystery shopping” to understand the Company’s performance in the market place and in this case, a “mystery shopper” gave poor feedback. In relation to the meeting on 11 January 2021, Mr O’Brien said that the intention was to educate the Applicant about what the was trying to do in terms of customer service, to differentiate the Respondent’s business in the market.40 [63] Mr O’Brien agreed that he did say to the Applicant words to the effect of: “I don’t like your fucking attitude girlfriend”41 (although stating under cross-examination that he may not have used the term “girlfriend”) but maintained that he did not bang his hand on the table. Mr O’Brien also maintained that when the Applicant left the meeting on 11 January 2021, he believed that the Applicant had resigned. Mr O’Brien was asked what he said to Ms Bullock when she informed him that the Applicant denied resigning, and said: “No real surprise, based on behaviour previously, but I was a bit disappointed.” Mr O’Brien said that he then told Ms Bullock: “contact Fair Work and understand what we’ve got to do from here.”42 -- 13 of 47 -- [2021] FWC 5035 14 [64] Under cross-examination Mr O’Brien agreed that the issue raised at the meeting on 11 January 2021 was the Applicant’s failure to get contact details from a potential client. Mr O’Brien rejected the proposition that he told the Applicant that she failed to get contact details on 8 January (the weekend before the meeting) when the event happened on 20 November 2020. Mr O’Brien also rejected the proposition that his evidence meant that the information given to the Applicant in the show cause letter was false and said that the Company had been educating salespeople that no matter who comes through the door, they should be greeted and told that the salesperson would be with them in a minute. Mr O’Brien did not agree that on the occasion raised with the Applicant she had acknowledged the customers. Mr O’Brien did not know how many people went through the property on the weekend in question and said that all salespersons work alone and this issue is not relevant. [65] Later, Mr O’Brien said that he did not expect that a salesperson would walk away from a client in front of her to take details from another person who may or may not be interested in a home, but rather that the person that is coming through the door should be acknowledged.43 In relation to this issue, Mr O’Brien had the following exchange with Counsel for the Applicant: “In the meeting you told Angela it was your friend, didn't you? --- Yes, because - - - That was a lie, wasn't it, because it was Cassie's friend? --- I'm not a - love, I'm not on trial here. Yes, it was a lie - it was not a lie. It was just a - I don't want to get someone else in trouble so I directed the trouble to me. Why would I want to get a staff member that is helping my business, finding flaws from others, to not fix? A moment ago you told the Commission it was a mystery shopper? --- That's how we mystery shop, with others. That was a lie too, wasn't it? You didn't pay them to mystery shop your business? --- I don't pay mystery shoppers. They're people we know. Okay? --- Sorry, but do you know much about building home and sales? I'm not the one who is on trial here, Mr O'Brien? --- Okay.”44 [66] Mr O’Brien confirmed that he had not placed the Applicant on a performance improvement program and said that this was because he could not find salespeople. Mr O’Brien rejected the proposition that he got angry because the Applicant corrected him when he told her that the potential customer had gone to another builder, by stating that the builder in question did not have a home in the village. Mr O’Brien maintained that the feedback was that the customers went to another builder who gave the customer’s children an iPad and sat them down and treated them differently to the treatment they received from the Applicant. [67] Mr O’Brien also had the following exchanges with Counsel for the Applicant: “You never - - -? --- All we were trying to do in that meeting - you're trying to turn this - you're very good barrister. Well done. What we were trying to do is just educate - I wasn't - it wasn't a personal attack. This is what happened.”45 and later: “There was no McCarthy Homes in the Harmony - - -? --- Excuse me, as I just said - please don't talk to me like I'm an idiot, love.”46 -- 14 of 47 -- [2021] FWC 5035 15 [68] In response to the assertion that he felt that the Applicant was challenging him and he did not like that, Mr O’Brien said that he did not like being spoken to poorly. Mr O’Brien denied that he was the first person to swear but agreed that at the end of the meeting he did state to the Applicant: “If you don’t like it here you can fuck off. This is my business” and that he probably said the words attributed to him by Ms Ivanni. Mr O’Brien maintained that the Applicant swore first but rejected the proposition that he decided to dismiss her the moment she walked out the door, stating that he believed the Applicant had resigned. [69] In re-examination, Mr O’Brien maintained that what he was talking about at the meeting on 11 January 2021 was an event that had occurred on the previous weekend and that he decided to address it immediately after he received the feedback. In this regard, Mr O’Brien said: “We mystery shop all the time.”47 [70] The Applicant’s evidence is that Mr O’Brien used words to the effect of “you cost the company money, you cost the company a sale”. She states that Mr O’Brien was in an angry state when informing her of this and that Mr O’Brien raised his voice and banged his fist on the desk. The Applicant said that she tried to defend herself, and to explain to Mr O’Brien why she was unable to get the details of people visiting the display. The Applicant was with other clients at the time and had about 90 people through the display that weekend, while she was there on her own. The Applicant also said that she had people sitting and waiting for her and she did the best that she could in the circumstances. [71] Further, the Applicant said that after she tried to explain herself, Mr O’Brien became aggressive and swore at her saying words to the effect of: “I don’t like your fucking attitude, girlfriend” and asked why she was getting defensive. The Applicant said that she got up and left the meeting, after being verbally abused and bullied, and that she did so to remove herself from an unsafe situation where she felt extremely threatened and overwhelmed by the way she was spoken to. The Applicant also said that she left the room to avoid any physical altercations, as this is how she felt the situation was going. The Applicant contended that as she left the room, Mr O’Brien yelled: “fuck off then”. The Applicant denies swearing back at Mr O’Brien during the exchange. In the alternative, the Applicant contends that if she did swear at Mr O’Brien, it would not be grounds for dismissal. [72] In her oral evidence, the Applicant said that she was told at the meeting on 11 January 2021 that Mr O’Brien had some friends who had gone through the display home the weekend before and that while the Applicant acknowledged them when they entered, she was sitting down with someone and those persons had gone through the display and left, before the Applicant had taken their names. The Applicant said that she responded by telling Mr O’Brien that it was a busy weekend and some 90 people had gone through the display. The Applicant also said that she told Mr O’Brien that she had tried to get everyone’s details but that this was difficult. The Applicant conceded that she got defensive. Mr O’Brien then told the Applicant that the persons he was referring to had gone next door to another company’s display home and had received such great customer service that they were building with that company. The Applicant said that she queried Mr O’Brien on the basis that the company he named did not have a display home in the village where she was working. The Applicant said that at this point Mr O’Brien became aggressive and made the comments set out in her witness statement and the meeting became heated causing her to leave as she felt it was an unsafe situation.48 -- 15 of 47 -- [2021] FWC 5035 16 [73] Under cross-examination, the Applicant accepted that she became defensive during the meeting but denied that she was told by Mr O’Brien and Ms Ivanni to calm down. The Applicant also denied that she went on the attack during the meeting or that she told Mr O’Brien that his management and his business are “shit”. The Applicant also denied that she told Mr O’Brien that he could “go and fuck himself”.49 Ms Comerford gave evidence that the Applicant came to her home at around 10.30 am on 11 January 2021, and was distressed, shaking and teary. [74] Ms Bullock’s evidence was that at approximately 10.30am on 11 January 2021, the Respondent’s Receptionist asked her to go and see Mr O’Brien, who was in his office with Ms Ivanni. Ms Bullock was told that the Applicant had resigned. Ms Bullock asked what had happened, and was told by Mr O’Brien and Ms Ivanni that the Applicant would not listen to their concerns about her failure to take client details despite instruction to do so and had attacked their management abilities. Ms Bullock says Mr O’Brien told her that the Applicant had said his management was “crap and the company was crap” and had told him to “go fuck himself” as she left the meeting. [75] Ms Bullock said that she is aware of the concept of “heat of the moment resignation” and wanted to confirm that the Applicant had resigned prior to processing any termination. Accordingly, Ms Bullock sent the Applicant an email stating that she understood she had resigned and seeking confirmation of this. Ms Bullock says that she received a response from the Applicant stating that she had not resigned. That response was tendered by Ms Bullock and is in the following terms: “This is not correct, I feel the information that has been given to you has been misinterpreted. What has occurred this morning is I was called into a meeting with Shane and Tonia, during this meeting I was verbally attacked, bullied, intimidated and abused with absurd language by Shane O’Brien in a highly unprofessional manner. I walked out as I felt very stressed and unsafe in that environment so I removed myself from that situation. By no means have I resigned, I have worked too hard for this.”50 [76] Under cross-examination, Ms Bullock agreed that the incident on 11 January 2021 brought her concerns about the Applicant to a head and that she had not warned the Applicant about those concerns before that date. Ms Bullock also agreed that a performance plan had not been instituted in relation to any concerns with the Applicant’s work performance. In relation to the view expressed in her witness statement that the Applicant was unwilling to acknowledge the need for performance improvement and that this made her employment untenable, Ms Bullock agreed that the Applicant had not been warned about her performance at that point but said that there had been email communication between the Applicant and Ms Ivanni that helped in the formation of that opinion.51 [77] Ms Bullock also agreed that the Applicant had stated in an email dated 11 January 2021 that she felt attacked, bullied, intimidated and abused and that Ms Bullock did not respond or offer support to the Applicant and did not investigate this claim. Ms Bullock accepted that both Ms Ivanni and Mr O’Brien agreed that Mr O’Brien swore at the Applicant during the meeting and that the Applicant interpreted this as bullying. Ms Bullock also accepted that it would be appropriate for the Applicant to have walked away from the meeting if her version of “what went down” at the meeting was correct. In response to the proposition -- 16 of 47 -- [2021] FWC 5035 17 that the Applicant believed she was in an unsafe situation, Ms Bullock said that the Applicant was saying this “after the fact”.52 Ms Bullock confirmed that her understanding that the Applicant told Mr O’Brien that he had a shit business, was derived from what Mr O’Brien told her after the meeting of 11 January, and that this could have been a generalised summary of Mr O’Brien’s perception. [78] Ms Ivanni said that she was surprised when Ms Bullock informed her that the Applicant denied resigning and that she had a discussion with Ms Bullock and Mr O’Brien about how the Applicant’s multiple performance issues might be addressed. Ms Ivanni said that during this discussion it was agreed that the Applicant’s behaviour in telling Mr O”Brien to “go and fuck himself” particularly in the context of a blanket refusal to accept a need for performance improvement, was inconsistent with ongoing employment. Ms Bullock was requested to prepare a show cause letter that outlined the areas where the Respondent would need to see improvement if the Applicant was going to remain employed. Ms Ivanni also said that Ms Bullock informed her that after receiving the show cause letter the Applicant asked for specific examples of performance shortfalls and she provided some examples for Ms Bullock to pass on to the Applicant for discussion at a meeting on 14 January 2021. [79] Mr O’Brien’s evidence is that he told Ms Bullock he expected the Applicant to apologise for her behaviour in the meeting of 11 January 2021, and to demonstrate an openness towards performance improvement if she intended to remain employed. He said that he advised Ms Ivanni and Ms Bullock that they should meet with the Applicant and determine if she was remorseful, and if they felt that she would work with them productively in future. Mr O’Brien said that Ms Bullock and Ms Ivanni had authority to decide whether or not to terminate the Applicant’s employment on the basis of her response in a show cause meeting. In his oral evidence, Mr O’Brien said that when he was informed that the Applicant denied that she had resigned, he understood that Fair Work would be contacted to understand “what we’ve got to do”.53 [80] Ms Bullock said that after her discussion with Ms Ivanni and Mr O’Brien about what would be needed to make the Applicant’s employment workable, it was apparent to her that they had two problems: the ongoing performance issues that the Applicant refused to acknowledge, and her extreme disrespect to both Mr O’Brien and Ms Ivanni. Ms Bullock said that while she had reservations whether the employment relationship could be recovered, she nevertheless decided to give the Applicant an opportunity to put her views on the future of her employment by issuing the Applicant a show cause letter. The show cause letter [81] An email termed by the Respondent as a “show cause” letter was issued on 11 January 2021 under the signature of Ms Ivanni. That letter (tendered by Ms Bullock) stated that at a meeting with the Applicant on 11 January 2021, to discuss feedback from a potential client’s recent display home visit, the Applicant would not listen to the concerns of Ms Ivanni and Mr O’Brien and had stated that she was an excellent salesperson and did not need to change her approach. The show cause letter went on to state that: “As you are aware, it was the impression of Shane and myself that when you abruptly left the meeting your words ‘fuck off I am leaving then’ in the context of the discussion were understood to be a resignation. You have advised that this was not your intent. However the question of your fit for the team remains unanswered, particularly given your foul and disrespectful language used toward out (sic) director. -- 17 of 47 -- [2021] FWC 5035 18 I require you to attend a meeting on Tuesday 12 January at 11 am with Kendra and myself to answer the following questions: 1. Are you willing to following management directions and accept oversight in the delivery of your role? 2. Do you accept your behaviour on Monday was unacceptable? 3. Are you willing and able to deal respectfully with management and co-workers? 4. Why should the company have confidence that the employment relationship has not been irreversibly harmed as a result of your actions in Monday’s meeting.”54 [82] Ms Bullock said that the Applicant replied by email requesting specifics of when she had not met company expectations, which she was provided with by email. Ms Bullock also said that a meeting was scheduled at a time convenient to the Applicant to address the concerns raised. As the Applicant stated that she did not feel comfortable going back to head office with Mr O’Brien there, the meeting was scheduled for 14 January 2021, at a park. In her oral evidence Ms Bullock said that her intention in sending the show cause letter was to see whether the Applicant would show remorse for having aggravated and escalated the meeting on 11 January. Ms Bullock also said that the Applicant’s response to that letter was essentially to answer “yes” or “no” to the question set out in the show cause letter and that this did not show the Respondent there was any change in the Applicant’s position. [83] The Applicant’s emailed response to the show cause letter was not tendered by the Respondent’s witnesses. The Applicant tendered a document headed “Draft email to Tonia” which she contended had been sent to Ms Ivanni in response to the 11 January email.55 The Applicant said that she did not have the original email as it had been sent from her work computer to which she no longer had access. It was not disputed that Ms Ivanni received that email and Ms Bullock also said that she had seen it. The Applicant’s response stated that:  The Applicant welcomed Ms Ivanni’s involvement as Sales Manager and is receptive to any efforts to maximise company service and sales levels;  The Applicant had been following her “position guidelines” from commencement of her employment;  A request for specifics of changes implemented by Ms Ivanni that the Applicant had refused an instruction to follow;  The Company sent someone to the sales office to collect information on her sales presentation over two days where some 90 people had visited the sales office and that at times during that period she had been tied up with a potential customer while others came in;  The Applicant acknowledged everyone who entered the sales office and tried to get to them as soon as possible; and  At the meeting of 11 January 2021 the Applicant did not say the words attributed to her and did not resign. [84] In response to the four questions posed in the show cause letter, the Applicant stated in her email response that:  She is willing to following management directions and accept oversight in the delivery of her role provided that they are “lawful and relevant to the position”;  The Applicant did not agree that her behaviour on 11 January was unacceptable and said that she reacted to being abused and bullied by removing herself; -- 18 of 47 -- [2021] FWC 5035 19  The Applicant answered “yes” to the question as to whether she is willing and able to deal respectfully with management and co-workers; and  For her part, the Applicant would work hard to quickly repair any harm to the employment relationship that may exist and that both parties must respect each other. [85] The email concluded by stating that the Applicant was unable to attend a meeting at the time proposed by the Respondent as it was her day off and she had a doctor’s appointment and other obligations. The Applicant also said that she did not wish to attend such a meeting until she had obtained a representative and that she would do this as soon as possible. [86] Ms Bullock agreed under cross-examination that the Applicant’s response that she would work hard to quickly repair harm that might exist in the employment relationship was a reasonable response to the question posed in the show cause letter as to whether the employment relationship had been irreversibly harmed. Ms Bullock also said that at that stage, she did not think that the relationship had been irreversibly harmed and that there needed to be a face-to- face meeting to see whether the response was genuine.56 [87] In response to the Applicant’s request for specifics of instructions the Applicant was alleged to have refused to follow, Ms Bullock sent an email to the Applicant on 13 January 2021 setting out examples of alleged failure by the Applicant to respond to client inquiries and to provide contract information in a timely “matter” (sic). It was also stated that the Applicant had not followed requirements to be in a display home from 9.00am to 5.00pm on rostered days with doors open to public from 10.00am – 4.00pm and on several occasions over past months had left before 4.00 pm. Reference was made to sales meetings where the Applicant was reported to have responded to an instruction to take down names and numbers of persons visiting displays by stating “are you kidding” and that she did not see the point. [88] It was also stated in the email that the Applicant had been informed in the October sales meeting that the “Our Gift To You” promotion was no longer available to be given away as a tool for closing a deal and that Ms Ivanni would be happy to train sales staff with dialogue to overcome any objection to this from customers. The email went on to inform the Applicant that she had continued to offer this promotion despite being advised to cease doing so and that she had become angry and defensive about this matter when it was raised with her by Ms Ivanni in an email of 3 November 2020.57 The 13 January email also contained the following paragraph: “On 20 November 2020, an email was sent to you and Sarah Scott letting them know that Matt and Kate Parsons (friends of Cassie from accounts and referred potential buyer) would be coming through the displays and to look after them. You sent a return email acknowledging this. As discussed in the meeting between yourself, Shane and I on Monday, this is the client that we called the meeting with you on Monday to discuss. Kate Parsons advised that when she visited Harmony display, there was already a client in the display that you were talking with. Kate advised that she was not acknowledged when she arrived or when she left the display, and that her name and details were not taken down or captured in any method. Her overall comment was that she was disappointed by the lack of acknowledgement and zero customer service.” [89] The email concluded with a statement that: “We look forward to discussing these but do not consider back and forward on email a productive way of reaching resolution.” In relation to the performance concerns emailed to the Applicant on 13 January 2021, Ms Bullock said that she started gathering this information after 11 January 2021. Ms Bullock also said that the email of 13 January 2021 was the first time that these were raised with the -- 19 of 47 -- [2021] FWC 5035 20 Applicant. Ms Bullock disagreed with the proposition that the performance matters were a smokescreen and that the real reason for the Applicant’s dismissal was the meeting on 11 January 2021. In this regard, Ms Bullock had the following exchange with Counsel for the Applicant: “The real reason was her conduct on 11 January, wasn't it? --- The issue was her conduct and how she escalated the meeting and attacked the - Tonia and Shane made us whether there could be an - and reacted - the meeting started off simply just we had two meetings that day about the same thing with people, one went - they went down completely different and that was solely due to how Angela interpreted or didn't want to engage with the conversation. So after that we were left wondering whether - you critique your sales manager and you tell them that they're doing a bad job and that they're never on site and then you start telling your boss that he has a crap business and he doesn't know how to run a business and this is a person that is sitting in front of the public and is a representation of your company, it does put doubt there as to whether you want that person being in contact with people if they have that viewpoint of the company. And that's why you terminated her employment? --- No, that's not why. It was - there were - this whole process was very layered and it wasn't an easy situation to navigate because we've never been in this but it was layered with the attitude in that meeting, it was layered with Angela's resentment to Tonia, her manner of engaging with people in the office and that she was not as managers it was difficult to performance management - manage Angela because she wasn't receptive, she would claim bullying or want HR mediation just for getting an email that was warranted because she was not following a manager's repeated instructions so it wasn't just about that meeting, it was about - we had to stand back and look at whether this person in all honesty really wanted to be in the role. All right. But you'd never raised any of these issues with her prior to this date, had you? --- Not in a - we had a sales manager before who was - shied away from performance management. You've said that already but the answer to the question is, ‘No, you had never raised these issues with her previously’, correct? --- Not in a - what's the word, sorry. Not in a performance management process, no.”58 [90] In her oral evidence, the Applicant said that she did not respond to the email of 13 January 2021 because she believed that these matters would be discussed at the show cause meeting. The Applicant agreed that a few of the matters were discussed at that meeting but maintained that they had not been raised prior to her receiving the email and that she had not previously received a warning from Ms Bullock. [91] Under cross-examination, the Applicant agreed that she had never been given a direction by Ms Ivanni that was not lawful or relevant to her position but disputed the proposition that including this qualification in her response to the question about whether she would comply with a direction was an inappropriate response. The Applicant said that she responded in this way to cover herself.59 Meeting on 14 January 2021 [92] Ms Bullock and Ms Ivanni met with the Applicant on 14 January 2021. Ms Ivanni said that at the start of the meeting, she asked the Applicant if she was waiting for a support person, and the Applicant responded “no, let’s get on with it”. According to Ms Bullock, the meeting started with her asking the Applicant to respond to the Show Cause letter. When the Applicant had nothing to say, Ms Bullock and Ms Ivanni started running through the examples set out in the letter of 13 January 2021. -- 20 of 47 -- [2021] FWC 5035 21 [93] Ms Bullock said that Applicant confirmed she had read the examples and replied that the allegation she had not responded to clients in a timely manner was incorrect. Ms Bullock said that she explained to the Applicant that they had gathered supporting documentation, including multiple email requests made by clients with no response being provided by the Applicant or anyone, until Ms Ivanni became involved. The Applicant was asked to explain how this shows that she was responding in a timely manner, and the Applicant responded by stating that she “tries her best”. [94] Ms Bullock further stated that it was put to the Applicant that on 11 January, she had become verbally aggressive during her meeting with Mr O’Brien and Ms Ivanni, and it was therefore queried whether it was appropriate for the Applicant to remain employed with Vantage. Ms Bullock stated that part of the show cause process was determining if the Applicant was likely to take direction in future, and could accept that improvement was needed on her part. [95] According to Ms Bullock, the Applicant responded by stating that she was bullied and abused in the meeting of 11 January 2021. Ms Ivanni said that she then asked the Applicant whether she remembered being asked to calm down during the meeting, and the Applicant responded by stating: “well of course I am going to be defensive, you are attacking my livelihood”. Ms Bullock said she also put to the Applicant that other staff had stated that the Applicant had demonstrated similar behaviour and had been defensive or aggressive with them. The Applicant responded by stating that she is not an aggressive or abusive person and had never had a complaint from staff and in all respects, the Applicant denied any wrongdoing. [96] Ms Bullock said that the Applicant stated that she did not believe the meeting was going to get anywhere as it was her word against “management’s”, and she wanted to know what their intentions were. Ms Bullock said that in light of the Applicant’s ongoing disrespect and anger shown towards management, her failure to acknowledge performance issues, and her responses during the meeting, Ms Bullock and Ms Ivanni advised the Applicant that they intended to terminate her employment. [97] In her oral evidence, Ms Bullock said that the Applicant was asked at the meeting on 14 January to respond to the matters in the show cause letter. When the Applicant generally denied the generic allegation that she was not following management instructions, Ms Bullock moved on to the specific examples given in the 13 January email, by showing the Applicant the emails relating to each example. The Applicant’s response to these matters was to deny them. In relation to the meeting being short, Ms Bullock said that the Applicant was given the opportunity to respond to each issue and was not giving anything but simply stating that it was not true or when evidence was shown to the Applicant, that she tried her best. Ms Bullock said that this response sounded a bit flippant. In relation to the ending of the meeting Ms Bullock said: “--- So then something came - somehow we got onto the point talking about the meeting on the 11th. She still said that her version of how it went down - we spoke about that. We were talking about that and then she said, "Well, we're not getting - this is" - something along the lines, "This is pointless. We're not getting anywhere, what's the point", and then she said, "So what are you going to do." And at that point we felt like - well, I felt like we weren't getting the response from Angela that she was maybe remorseful about how things went down on the Monday, she wasn't open to discussing the performance issues, she was resistant sort of to hearing any sort of feedback so I told her that in light of the disrespect shown, in light of the fact that she wasn't acknowledging the need for performance -- 21 of 47 -- [2021] FWC 5035 22 management or that there were issues with her performance that I didn't feel that it was a workable working relationship and that we would need to terminate.”60 [98] Under cross-examination, Ms Bullock said that the show cause meeting went for around ten minutes. There was no break in the meeting for Ms Bullock and Ms Ivanni to discuss the Applicant’s responses. In response to the proposition that the Applicant could not have done anything to change their minds about dismissal, Ms Bullock said that the Applicant could have engaged with them and instead was dismissive and flippant. [99] Ms Ivanni said in her evidence that it had been agreed that Ms Bullock would do most of the talking during the meeting. Ms Ivanni observed the Applicant had folded arms throughout the meeting and did not engage with the process and it appeared that she just wanted to get out of there. Ms Ivanni states that the Applicant refused to address performance concerns and would only reply that she “did her best” and would block efforts to discuss specific concerns by saying “anyway, let’s move on”. Ms Ivanni says that from the events of the meeting, she was comfortable that the Applicant would never have accepted her guidance as her Manager and would not have improved her administration processes to the required level. It was Ms Ivanni’s view that these matters had been addressed directly with the Applicant over a period of months with no improvement and on this basis, Ms Ivanni supported the decision to terminate the Applicant’s employment. [100] Under cross-examination, Ms Ivanni said that she hoped that the Applicant would turn up to the meeting on 14 January and state that she needed some coaching, but that she informed Ms Bullock that she would leave the outcome to her, as Ms Bullock was the HR Manager. Ms Bullock rejected the proposition that she made up her mind before the meeting that the Applicant’s employment should be terminated.61 [101] The Applicant’s evidence is that she believed Ms Bullock was recording the meeting, and she therefore held back on what she said. The Applicant said that she responded to the show cause email in a positive manner, however within five minutes of the meeting commencing she was told that her employment was being terminated. According to the Applicant, she was not allowed a true show cause process and no written notice of dismissal was provided. The Applicant also said that on being advised of her dismissal, she stated to Ms Ivanni and Ms Bullock that she wanted her commissions paid out. Ms Ivanni said that she replied to the Applicant that she would be “paid as per [her] employment contract”. [102] Under cross-examination, the Applicant agreed that she had an opportunity to respond to some of the administration/contract issues but maintained that she had not been given evidence about the issues and they were not raised with her prior to the show cause process. In particular, the Applicant said that no-one had ever sat her down and told her that there were issues with her paperwork or any other matter. In relation to the “Our Gift To You” promotion, the Applicant said that it constituted a gift pack of light fittings, a sink and ceiling tiles in shower recesses, to the value of around $1500 for the Respondent. The Applicant agreed that Ms Ivanni had some significant issues with her in relation to this promotion but said that when a promotion ended there was still a timeframe when buyers had that promotion in the quote for their home and that it should be honoured. The Applicant maintained that Ms Ivanni was not understanding that quotes with the promotion in them were still going through the system. In response to a question from the Commission the Applicant said that quotes had a life of 30 days. -- 22 of 47 -- [2021] FWC 5035 23 [103] In response to the proposition that she continued to use the promotion after it had been discontinued, the Applicant said that the promotion did come and go and it was hard to keep up with whether or not it was valid. The Applicant also said that there was also a period where the Respondent did not have a Sales Manager and there was no direction. When Ms Ivanni started in October 2020, the promotion was still valid and there was signage and marketing in relation to the promotion, but salespersons did need to get approval for the promotion. As a result, when the promotion expired, the Applicant already had quotes out there with the promotion included. In re-examination, the Applicant said that she obtained approvals from Ms Ivanni for the promotions that she offered. [104] Ms Bullock said that the Applicant was paid her outstanding commissions the next day and outstanding wages on the following Monday. The Applicant said that she was to be paid four weeks’ wages in lieu of notice, but that after this was paid, it was later debited against her commissions and therefore was effectively taken back. The Applicant contended that she should be paid four weeks at average total earnings to reimburse this amount. As to steps to mitigate her loss, the Applicant submits that she has applied for dozens of jobs on seek.com and has attended one interview but has not yet secured alternative employment. [105] Under cross-examination the following proposition was put to the Applicant: “You say that you've been applying for a lot of jobs? --- Yes. It's true, is it not, that the residential construction is absolutely red hot - - -? --- Yes. - - - with the home builder program in the market? --- Sure is. Yes, yes. And that only finished last week? --- Yes. How many pages of sales ads would you say there are on Seek in a week? There's definitely a few jobs out there for that, yes. --- Definitely. And is it your evidence that you've been applying for those jobs? --- No, I haven't. No? Why is that? --- No reason.”62 [106] In response to questions from the Commission, the Applicant agreed that there are jobs on Seek.com that are similar to jobs the Applicant has done in the past, but that she has not applied for them. When asked whether there was a reason for this, the Applicant said: “No”.63 Applicant’s Submissions [107] The Applicant submits that no proper reasons were given to her for the termination of her employment and that the Respondent has alleged that the Applicant was dismissed for one or more of the following reasons:  The use of foul and disrespectful language at the meeting with Ms Ivanni and Mr O’Brien on 11 January 2021;  Ms Ivanni held the impression that the Applicant was resentful of, and unwilling to implement, changes she was attempting to implement to “maximise service levels”; and -- 23 of 47 -- [2021] FWC 5035 24  A number of alleged performance issues contained in an email of 13 January 2021 from Ms Bullock to the Applicant. [108] In relation to the first reason, the allegation is denied, and it is for the Commission to determine whether the swearing occurred as alleged, or at all. It is submitted that the alleged swearing was not properly investigated, and that Ms Bullock conceded that she did not ask the Applicant for her version of events at any time and that she had relied on the accounts of Mr O’Brien and Ms Ivanni. Those accounts were not separately gathered and are not consistent – for example, Ms Ivanni agrees that Mr O’Brien swore first while Mr O’Brien is adamant that he did not. In the absence of a proper investigation the allegation cannot be substantiated and cannot form any part of a valid reason for dismissal. For the Commission to accept the alleged swearing constituted a valid reason for dismissal, it must be satisfied first that the incident occurred as alleged and second, that it was unacceptable for the Applicant to have responded in kind to swearing by the Director. Further, the conduct of Mr O’Brien who spoke to the Applicant in a raised voice must be considered as well as the Applicant’s assertion that she was defending herself from bullying and harassment by Mr O’Brien. [109] While the Applicant has denied swearing at the Director, the Applicant further submits that if it is found she did swear at the Director, it would not be grounds for dismissal. The alleged swearing, which is denied, did not happen in front of a customer or client of the employer, and the alleged swearing is not grounds for instant dismissal and points to the dismissal being unfair. With respect to the second ground, the Applicant submitted that neither the changes that Ms Ivanni wished to introduce nor the conduct the Applicant engaged in to give Ms Ivanni the impression that the Applicant resented the changes or was unwilling to implement them, are specified. The alleged deficiencies in the Applicant’s performance constituting the third ground were first put to the Applicant on 13 January 2021 and comprised four issues. In relation to the matters identified, it was submitted that there were any number of reasons as to why the Applicant may have left the display home during business hours. That this may occur is evidenced by the Professional Expectations document which is Annexure G to Ms Bullock’s statement and provides for procedures for salespersons to be contactable when they leave a display home a variety of reasons. [110] In relation to the alleged failure to take details from a customer at the Harmony display home, it was submitted that Ms Ivanni acknowledged under cross-examination that the client said that the Applicant had acknowledged her and was with another customer. Ms Ivanni agreed that it was not expected that the Applicant would walk away from another customer to take details. With respect to the Applicant’s use of the promotion, it was submitted that Ms Ivanni acknowledged that there were quotes on foot providing for the promotion and there were some instances where Ms Ivanni gave permission for the Applicant to use it. Ms Ivanni also agreed that the Applicant sought permission to use the promotion and that there were some customers who came into the display home seeking it. Ms Ivanni’s email to the Applicant about the promotion was submitted to be unnecessarily antagonistic resulting in the Applicant seeking assistance from HR. It was also submitted that given the tone of Ms Ivanni’s email, the Applicant’s response was not inappropriate. [111] Regarding allegations about performance, it is submitted that the Applicant:  had only one performance review during the course of her employment (after six months, and nothing since then). -- 24 of 47 -- [2021] FWC 5035 25  received no management or direction from the employer in relation to non- performance issues or under-performance issues except in the show cause notice.  never received any warnings during the course of her employment.  did not receive any opportunities to fix any performance related issues.  addressed any performance related issues contained in the show cause notice.  was not given adequate time to address any performance issues contained in the show cause notice. [112] In reply submissions, the Applicant submitted in relation to the use of withdrawn promotions, the evidence of Ms Ivanni was that her concern was with the “Our Gift To You” promotion and the minutes that are referred to in Ms Winter’s evidence say that the promotion will continue.64 [113] Additional issues which emerged in cross-examination including the Applicant being “defensive” and reluctant to acknowledge performance issues were submitted to be factors not amounting to a valid reason for dismissal. Further, it was submitted that the real reason for the Applicant’s dismissal was the meeting on 11 January 2021 and that this was acknowledged by Ms Bullock. Mr O’Brien agreed that he felt the Applicant was challenging him and did not like the way she was speaking and that he told Ms Bullock to contact “Fair Work” to see what had to be done. It was not until after the meeting on 11 January that Ms Bullock commenced gathering evidence about the alleged performance issues. It was submitted that an inference may be drawn that the decision to terminate the Applicant’s employment had been made at this time and that the alleged performance issues are a smoke screen to conceal an inherently unfair decision with a lack of procedural fairness. [114] The Applicant submitted that the lack of particularity about the reasons for dismissal was also evident from the inability of witnesses for the Respondent to state those reasons. In this regard Mr O’Brien’s evidence was unclear, Ms Ivanni said that the reasons were the Applicant’s reluctance to acknowledge performance issues and being defensive and Ms Bullock said that the reasons were “layered”. Even within the Company internally there was a lack of clarity about the reasons for dismissal and it is submitted that this led to a failure to notify the Applicant of those reasons. Nothing else was said in the meeting of 14 January 2021 and therefore the Respondent has failed to particularise the allegations or relevant dates of the allegations of her unwillingness to address the employer’s performance concerns. The Applicant therefore submits she was unable to provide any fulsome response to the reasons for her dismissal. [115] As a matter of law, the notification of a valid reason to terminate must be provided in plain, clear and explicit terms and before the decision to terminate is made. It is also submitted that the Respondent failed to provide a clear reason for dismissal even in its response in these proceedings. The Applicant submitted that it is unfair for her to have to guess at her own serious misconduct and provide a response in these proceedings. While the Applicant was provided the opportunity to respond to the show cause notice, it is submitted that the show cause notice was the first time the Applicant was made aware of any performance concerns, and that she was not allowed adequate time to address these concerns. Further, the notice failed to provide the relevant breach of law, code of conduct, or term of her employment. [116] It was also submitted that in order to have a proper opportunity to respond, the Applicant must have notice of the precise nature of the employer’s concerns. It was also -- 25 of 47 -- [2021] FWC 5035 26 submitted that email of 11 January 2021 was not truly a show cause notice at all as it did not request that the Applicant show cause why her employment should not be terminated but merely asks her to answer questions which go towards her conduct. The tone of the correspondence is unnecessarily antagonistic and leaves no room for the Applicant to dispute the version of events the employer has put forward. [117] The Applicant also pointed to the fact that she had reported feeling abused, bullied, attacked and unsafe at the meeting on 11 January and that Ms Bullock did not ask for the Applicant’s version of events nor investigate the allegations. Regardless of the lack of particularity, the Applicant’s response to the show cause letter was reasonable and legitimate in the circumstances but that response was not accepted by the employer. Rather, it seemed clear that the employer had decided to dismiss the Applicant. The Applicant also asked for examples of her alleged refusal to accept changes and this resulted in an email providing a list of these. However, the email also stated that the employer was not interested in receiving a response from the Applicant prior to the meeting the following day. [118] Regardless of the responses provided by the Applicant at the meeting, The Applicant submitted it was clear that the employer had already formed the view that the Applicant’s alleged conduct was inconsistent with ongoing employment. While there was some discussion about the allegations at the meeting on 14 January 2021, the meeting was of short duration and Ms Bullock and Ms Ivanni did not break to discuss the Applicant’s responses, and Ms Bullock stated about 10 minutes into the meeting that the Applicant’s employment would be terminated. This evidences that the meeting and discussion were no more than a smoke screen designed to conceal the fact that the decision to dismiss the Applicant had already been made. [119] In relation to opportunity to respond, the Applicant also submitted in reply that the Applicant did not say that she would respond verbally in the meeting, but that what was said was that she expected there to be a discussion the following day. However, when the Applicant attended the meeting the submission is that she had a feeling very early on that that would not be the case and she said that she asked early in the meeting what the meeting was about and Ms Bullock replied, “We’re going to terminate you.” The Applicant also referred to the email from Ms Bullock to the Applicant and that this clearly states, “We look forward to discussing these matters, but do not consider back and forward on email a productive way of reaching a resolution”. On that basis the Applicant submitted she was given no opportunity to respond in writing, nor indeed the following day.65 [120] The Applicant requested to have a support person and accepts that this request was not refused by the employer. In relation to whether she was warned about performance related issues, the Applicant believes that she met the requirements of her role as a sales consultant. The Applicant submits that she only had one performance review, following her six-month probationary period, and received no management or direction regarding any performance, or under-performance concerns except in the show cause notice of 11 January 2021 and that she received no warnings during the course of her employment. The Applicant also submits that she was not told her employment was at risk because of the matters for which she was dismissed and was not given a period of time to rectify those matters. [121] The Applicant submits that her dismissal was unfair and refers to the decision in Crockett v Vondoo Hair t/a Vondoo Hair,66 in which it was stated that: “[58] … it is simply not good enough, nor is it contemplated by the provisions of s 387 of the Act: -- 26 of 47 -- [2021] FWC 5035 27 (a) for the employer to make findings of misconduct without a proper investigation of the matter; (b) to give no warning to an employee of the reasons why the employer is considering terminating his/her employment; and (c) to give no reasonable opportunity for an employee to consider the allegations and to provide an explanation for his/her conduct.” [122] The Applicant further submits that the Respondent’s actions were disproportionate to the alleged conduct and that the dismissal was harsh because it appears to be a direct result of the Applicant removing herself from a situation which she deemed to be unsafe and in respect of which she did not receive support from the Respondent’s HR Manager. [123] While the Applicant initially sought reinstatement, she submits that circumstances have changed and she would no longer feel safe working for the Respondent. In particular, the Applicant is concerned about the constantly changing nature of the case she has to meet and the stubborn resistance of the Respondent to accept any deficiencies in its process has undermined the Applicant’s confidence that a productive employment relationship can be restored. The Applicant therefore seeks compensation. [124] In relation to the matters relevant to the assessment of compensation, the Applicant submits that there is no evidence before the Commission of any effect that an order for compensation would have on the Respondent’s viability. The Applicant has worked on a full- time basis for a period of approximately three and a-half years and had an unblemished disciplinary history. Even if the performance issues were identified and raised with the Applicant in a procedurally fair manner, there is no reason to believe that she would not have been able to improve to the required standard, with the appropriate training, coaching and support. Accordingly, it is submitted that had the Applicant not been unfairly dismissed, she would have remained in employment for at least a further twelve months. [125] In relation to earnings, the Applicant tendered a payslip dated 9 April 2021, indicating that her commission for the year to date was $105,633.19. The period over which that Commission was earned was 28 weeks – 1 July 2020 to 14 January 2021 equating to a weekly amount of $3772.61 per week. Although there would be further commission payments to be received by the Applicant those have been disregarded. Also disregarded are the amounts of base salary and other payments made to the Applicant as these were deducted from the Commission, based on the debit/credit arrangement under which the Applicant was paid. [126] Accordingly, if the Applicant had remained employed for a further period of 12 months, she would have earned an amount of $196,175.00. Applying the formula established in Sprigg that amount should be reduced by 35% for contingencies. While this deduction exceeds the standard amount of 25% for contingencies, it is accepted by the Applicant that it should include a further deduction for the nature of commission only employment resulting in a deduction of 35%. This results in an amount of $95,266.35 after tax. Further, it is submitted that no deduction should be made for the final termination payment received because this amount was debited against the Applicant’s ongoing commissions and is therefore of no net worth to the Applicant. This amount exceeds the cap established by s. 392(5) of the Act which is currently $76,800.00 and the Applicant seeks this amount in compensation. [127] In reply submissions, the Applicant submitted that evidence of the current market conditions is not before the Commission and that the expressions of interest by other sales -- 27 of 47 -- [2021] FWC 5035 28 people are not an accurate reflection of what the Applicant may have been able to achieve. In relation to mitigation, the Applicant submits she has applied for approximately one job per week in the period between the termination date and the hearing date and she has searched for many jobs during that period. Further, having regard to the Applicant’s skills and experience being specifically in sales and not in real estate that this was adequate mitigation. Respondent’s Submissions [128] The Respondent submits that the Applicant’s dismissal was a result of a combination of her rude behaviour towards managers, and her ongoing failure to acknowledge her performance and behavioural shortfalls. The Respondent submits that the Applicant’s dismissal was not for serious misconduct and the Applicant was paid in lieu of notice as provided by the Act. In relation to valid reason, the Respondent submits that the reason for the Applicant's dismissal was because she would not acknowledge the concerns of Ms Ivanni and Ms Bullock in relation to the meeting on the 11 January 2021 or, more broadly, her reluctance to follow instructions.67 [129] The Applicant had been given directions during her employment, including instructions to take details from all visitors to display homes, which the Applicant failed to follow. The Respondent submits the Applicant denied any failures and would respond to any issues raised with her by stating “that isn’t true” or “I did my best”, or words to that effect. The Respondent submits that the Applicant’s refusal to follow instructions, and refusal to acknowledge performance issues, meant that it no longer had confidence that the Applicant would make improvements and this conclusion was a large contributor to the decision to terminate her employment. Further, the Respondent notes the Applicant was disrespectful to Ms Ivanni and Mr O’Brien, during the meeting of 11 January 2021 and told Mr O’Brien to “go and fuck himself”. [130] The Respondent points to the Applicant’s evidence that the first discomfort that entered into the meeting on the 11 January 2021 was her getting defensive and the Applicant sought to explain her attacks on the management style of Ms Ivanni and Mr O'Brien as defensiveness because she felt that her job was under attack. However, the Respondent submits it was also the Applicant’s evidence in cross-examination that she didn't think that the expectations that were being put on her either in the meeting, or by the company more generally, were unreasonable. [131] The Respondent submits that making such a comment to a Director during a justified performance meeting falls within the category of misconduct. However, the Respondent does not rely on the swearing alone as justification for the Applicant’s dismissal. The Respondent submits this was only one aspect and was considered in the context of ongoing performance issues coupled with the Applicant’s refusal to accept performance concerns and her disrespect to her managers when they were attempting to correct her performance. The Respondent submits that a company who is seeking performance improvement from an employee needs acknowledgement from the employee that there is a capacity for improvement before that improvement could be relied on.68 [132] The Respondent also referred to the Applicant’s evidence that she only ever honoured buyer promotions when they were already part of a buyer’s quote which was valid for 30 days. However, it was the evidence of Ms Winter that the Applicant was using a specific incentive in October that had been discontinued on 1 August. The Respondent submits the -- 28 of 47 -- [2021] FWC 5035 29 minutes of a meeting on 1 August indicate that the promotion was discontinued on that date, and that the Applicant continued to send emails questioning the use of the promotion in October. This is said to indicate that the Applicant’s continued use of the promotion was not a case of a valid incentive being honoured within a 30-day quote period, and the Applicant’s evidence on this point should not be accepted. [133] The Respondent also submits the Applicant took issue with being criticised over reliance on these incentives and complained, asserting that she had permission to use those incentives and therefore the criticism was unfair. The Respondent contends the evidence is that the Applicant presented her manager with a “done deal”, which the company felt obliged to honour, and that this was not asking for permission, but was a situation where the Respondent was then forced to honour a promise made to a client by the Applicant.69 [134] The Respondent submits that the crux of its evidence is that the Applicant had an approach of doing what she thought was a good idea and would go ahead and apply it. Further, when the Applicant felt that sales incentives were helpful, she kept offering them and where she felt contracts could be fast-tracked, she made sure that they were. Where she thought that design changes were minor, she made them. When she did not think it was necessary to take all contacts, she did not do so.70 [135] The Respondent submits the issue that was taken with the Applicant, as demonstrated by Ms Ivanni and Ms Bullock’s evidence, is that the Applicant saw no problem with her approach and made it clear that she had no intention of changing.71 The Respondent made the following submissions about evidence of the Applicant’s witnesses. The evidence of Ms Comerford does not provide any information other than her impression of the Applicant's emotional state, with absolutely no probative value about how she came to be in that state.72 [136] Ms McIntosh’s evidence is an opinion of the applicant as a co-worker, which is effectively a character reference that has no value at all in relation to the events that happened a good six months after Ms McIntosh's employment ended. Further, Ms McIntosh’s evidence that the Applicant was an exemplary salesperson during the time they worked together is not even supported by the Applicant's own evidence which was that she was underperforming in the first 12 months of her employment and had to go to management and request to remain employed.73 [137] The Respondent also submits Ms Mayne’s evidence in her statement conflicted with her evidence at the hearing. In her statement Ms Mayne said that as the Applicant’s sales manager, she never received a complaint about the Applicant from a customer, the estate sales or the management team at Harmony. In her oral evidence at the hearing, Ms Mayne states that she was instructed to terminate the applicant's employment and describes herself as fighting management and HR to save the Applicant's job. The Respondent submits that this is hardly consistent with her statement of evidence and is inconsistent with the Applicant’s assertion that she has never known that there were concerns with her performance.74 [138] The Respondent also submits that Ms Mayne concedes that this instruction to terminate the Applicant’s employment was because the Applicant was under-performing and the Applicant only remained employed because she made a personal plea to management. Further, Ms Mayne states that the Applicant was never subject to discipline during the three years they worked together, outside of the demotion. The Respondent submits this evidence must be seen in the context of Ms Mayne’s oversight of the Applicant and the clear view of -- 29 of 47 -- [2021] FWC 5035 30 the Respondent that Ms Mayne was failing to undertake this oversight role adequately as demonstrated by the performance improvement letter that was issued to her.75 [139] The Respondent also submits that the Applicant was provided with a reason for her dismissal by being provided with a show cause letter on 11 January 2021 that advised that the Company was considering terminating her employment for a combination of her behaviour in the meeting earlier that day and her failure to meet the required standards for salespersons that had been previously communicated. [140] When the Applicant asked for further details, specific examples of breaches were provided to her along with the previously issued expectations documents with areas of short fall highlighted. The Respondent submits that the Applicant was given the opportunity to respond to the show cause letter and additional examples provided in writing prior to the meeting held on 14 January 2021. In addition, during the meeting of 14 January, Ms Bullock and Ms Ivanni attempted to canvas the Applicant’s attitude to the criticism that had been put to her. The Respondent notes that the Applicant provided responses to the effect that the incidents did not happen; the Applicant had done her best and that the Applicant was defensive because her livelihood was being threatened. [141] The Respondent also referred to the Applicant’s evidence that she did not respond by email to the specific examples provided on 13 January because she intended to respond to those face-to-face at the meeting on 14 January and to the Applicant’s evidence in her witness statement that the reason that she chose not to actually provide any responses on the 14 January was because she felt that she had adequately explained herself in an earlier email. The Respondent submits that this amounts to the Applicant saying on one hand, that she did not respond on 14 January when she had the opportunity, because the Applicant felt she had already responded adequately in writing and on the other hand that she did not respond in writing because the Applicant thought she would respond on 14 January at the meeting.76 [142] The Respondent also refers to the Applicant’s evidence that the reason that she was not forthcoming in her responses on 14 January to the very specific performance issues put to her is that she thought the conversation may be recorded. The Respondent submits this was a curious approach for the Applicant to take, because if she felt her responses were being recorded it was more likely that she would have gone out of her way to provide information she wanted to have recorded.77 The Respondent submits that it delayed the show cause meeting at the request of the Applicant to facilitate the attendance of her preferred support person. When she arrived at the meeting Ms Ivanni asked if the Applicant was waiting for her support person and needed to delay the meeting. The Applicant declined this offer. Accordingly, there was no unreasonable refusal for the Applicant to have a support person. [143] In relation to whether the Applicant had been warned about her work performance, the Respondent submits that the Applicant had been warned repeatedly that her performance was inadequate. However, while the Applicant’s performance was of concern, it was the company’s intention to work with her to improve that performance. In support of this submission, the Respondent notes that two salespeople were asked to discuss the same procedural breach on 11 January 2021. One salesperson accepted that she had not met requirements and committed to do so in future, and remains employed and is enjoying the support of both Ms Ivanni and Mr O’Brien. The other employee, being the Applicant, made offensive statements to the Director. -- 30 of 47 -- [2021] FWC 5035 31 [144] The Respondent submits that it was the behaviour of the Applicant in refusing to acknowledge performance issues rather than the underlying performance issues themselves that resulted in the termination of her employment. The Respondent acknowledges that it is not a small business and does employ Human Resource specialists. The Respondent also does not submit that the size and HR expertise of the employer had any impact on the processes that are followed. The Respondent submits that the Applicant’s failure to “disavow the denigration of the company and management” is a reason for the Respondent to have lost trust and confidence in her, as necessary to maintain the employment relationship. The Respondent submits that the Commission should have regard to the potential reputational risk of maintaining the employment of a client-facing employee, who has expressed contempt for the employer and management. [145] In the event the Commission finds that the Applicant has been unfairly dismissed, the Respondent submits that: a. Given the refusal of the Applicant to acknowledge any shortfall in her performance despite documented evidence it is unlikely that her performance would show improvement and termination would have been within 4 weeks. b. Efforts at mitigation of loss are for the Applicant to demonstrate. c. Any compensation should be reduced by 50% because of the Applicant’s contributory misconduct. [146] In closing submission, in relation to any award of compensation, the Respondent submitted that the Sprigg formula requires a forward look at what the employee would earn, not necessarily what they have earned and therefore that changes in the residential sales environment that can be demonstrated over the past months since the employee's termination ought to be taken into account. The Respondent submits the Commission should have regard to the changes in the residential sales market and referred to data of expressions of interest that the Respondent received prior to the Applicant’s dismissal and in the months after. [147] The Respondent contends that the Commission should look at the expressions of interest received by the Respondent over the period from when the HomeBuilder scheme came into play in June 2020, being the time frame used by the Applicant, through to the end of the scheme that finished in February. This shows the seven month period had an average of 42.86 expressions of interest per month, and that this dropped to 22.5 expressions of interest after that period, being a 47 per cent drop. The Respondent submits that this is consistent with the increase that was observed in the months leading up from January to June.78 The Respondent also proposed that that full amount should not be deducted but that a deduction of 40 per would be reasonable on the basis that the commissions achieved by the Applicant were achieved in an extraordinary market, which would not have continued had she remained in employment.79 [148] The Respondent contends that in assessing any amount of compensation when looking at the Applicant’s past income as a guide to what the Applicant’s future income may have been, a deduction of 40% should apply to have regard to the fact that the HomeBuilder stimulus package has now ended. The Respondent submits this would have had an adverse impact on commission that would have been earned by the Applicant had she remained in employment. -- 31 of 47 -- [2021] FWC 5035 32 [149] The Respondent submits that the figures for January were 25 expressions of interest and 40 expressions of interest in February, and that this is roughly the average over that period. The Respondent contends these figures dropped in March and the Respondent only received 14 in April.80 The Respondent also submits that if the Applicant had remained in employment in March or April 2021, the sales figures the Applicant would have achieved would have been nowhere near the figures the Applicant achieved in February because the market was completely different. The Respondent also submits that in the month prior to the HomeBuilder scheme commencing, May 2020, the Respondent received 20 expressions of interest, and in June when it commenced, the Respondent received 62 expressions of interest. In this regard, the Respondent submits that you would not look at the figures in May 2020 to be reflective of the figures in June 2020, and that the same should apply at the other end.81 [150] In relation to mitigation, the Respondent referred to the Applicant’s evidence that she had not been applying for jobs in the property industry and submits that there are jobs available in an area where the Applicant has skills and experience and that the Applicant elected not to apply for those, and that this meant the Applicant was not doing everything she could.82 The Respondent also submits that a deduction to any amount of compensation should be made for misconduct, due to the Applicant swearing at her managers. Whether the Applicant was unfairly dismissed Legislation [151] In deciding whether a dismissal was unfair on the grounds that it was harsh, unjust or unreasonable, the Commission is required to consider the criteria in s.387 of the Act, as follows: (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 FW Commission considers relevant. [152] The employer bears the onus of establishing that there was a valid reason for a dismissal.83 A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”84 The reason for dismissal must also be -- 32 of 47 -- [2021] FWC 5035 33 defensible or justifiable on an objective analysis of the relevant facts,85 and validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.86 [153] To determine whether there was a valid reason for a dismissal relating to conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred, on the basis of the evidence before the Commission. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct. Further, to constitute a valid reason for dismissal, the Commission must assess whether the conduct was of sufficient gravity or seriousness to justify dismissal as a sound, defensible or well-founded response.87 In finding that there was a valid reason for dismissal, the Commission is not limited to the reason relied on by the employer.88 [154] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be: Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct; Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer.89 [155] I turn now to consider the s. 387matters in the present case. Consideration of s. 387 matters Was there a valid reason for dismissal of the Applicant? [156] I do not accept that there was a valid reason for the Applicant’s dismissal and I have concluded that the Respondent has not met the onus of establishing a valid reason. The Respondent proffered its reasons for dismissal in a variety of formulations. In its Form F3 Response to the Application, the Respondent said that the reasons for the Applicant’s dismissal were: “Unwillingness to address her employer’s performance concerns and extreme disrespect to the Director.” In its outline of submissions filed in response to Directions, the Respondent said that at a meeting on 11 January 2021 the Applicant told the Director that “he could go and fuck himself” and that this was misconduct. The Respondent also submitted that while the termination of the Applicant’s employment “does not ride on swearing alone” it was one aspect of the Applicant’s attitude that the Respondent weighed before deciding to dismiss the Applicant and was coupled with the Applicant’s ongoing performance issues which she had refused to correct. In closing submissions the Respondent said that the Applicant’s dismissal was the result of a combination of her rude behaviour towards managers, and her ongoing failure to acknowledge her performance and behavioural shortfalls. In oral closing submissions, the Respondent asserted that the reasons for dismissal were the failure of the Applicant to acknowledge concerns in relation to the meeting of 11 January 2021 and the Applicant’s failure to follow instructions. -- 33 of 47 -- [2021] FWC 5035 34 [157] In my view the evidence makes clear that the Applicant’s conduct at the meeting on 11 January 2021 precipitated her dismissal and while not the only reason, was the substantive reason for the dismissal. I accept that there were some issues with the Applicant’s conduct and work performance prior to the meeting of 11 January 2021. However, those matters had not previously been considered of sufficient weight to have been formally addressed with the Applicant and had not been formulated into specific allegations that could have been the subject of a warning or even a performance management process. It was only after the meeting of 11 January 2021 that Ms Bullock and Ms Ivanni gathered information to support the other allegations. It is arguable that this only occurred after the email that the Respondent contends was a “show cause” letter was sent to the Applicant, also on 11 January 2021, given that the only substantive matter raised in the email is the Applicant’s conduct at the meeting on that date. [158] While I do not go so far as to find that the information upon which the additional allegations were based was collected with the intention of dismissing the Applicant, at very least, the intention was to consider whether there were sufficient grounds to dismiss the Applicant following her conduct at the meeting on 11 January 2021. This is reinforced by Mr O’Brien’s evidence that he thought the Applicant had resigned and was disappointed that this was not the case and his view that Ms Bullock should telephone “Fair Work” to find out what to do about the situation, upon being informed that the Applicant had not resigned. Given that Ms Bullock is a human resources manager it is improbable that she would need assistance from the Fair Work Commission if the intention was simply to warn the Applicant about her conduct at the meeting on 11 January 2021. [159] Finally, it is telling that when the Applicant responded to Ms Bullock seeking to confirm her resignation, by indicating that she had not resigned and making allegations that she felt verbally attacked, bullied, intimidated and abused, Ms Bullock did not take any steps to investigate these allegations, despite the fact that she knew, or should reasonably have known, that the meeting was heated and involved swearing. I am also of the view that as Ms Bullock said in her evidence “everyone knows Shane It's ‘Fuck this.’ And ‘Fuck that.’ He's a builder and – you know –” that Ms Bullock should have at very least, investigated the Applicant’s allegations. Instead, Ms Bullock sent the Applicant a show cause email about the same meeting the Applicant had complained about. [160] Turning to the evidence about what was said at the meeting on 11 January 2021, I accept that on balance the Applicant swore at Mr O’Brien. However, I am also of the view that even if I accept the evidence of Mr O’Brien and Ms Ivanni about the language used by the Applicant in the meeting of 11 January 2021, her conduct did not constitute a valid reason for dismissal when the evidence of the discussion at the meeting and the context in which it occurred, is considered. Firstly, Mr O’Brien and Ms Ivanni gave conflicting evidence about the reason for the meeting being called. Ms Ivanni said that the incident that the meeting was called to discuss was the manner in which the Applicant had dealt with friends of an employee of the Respondent who visited the display home at which the Applicant was working, in November 2020. Mr O’Brien initially maintained that the incident occurred the weekend before 11 January 2021 and involved a “mystery shopper” and later conceded that the incident involved friends of an employee of the Respondent. I do not accept Mr O’Brien’s evidence about when the incident that was the subject of the meeting on 11 January 2021 occurred, and find that the incident which precipitated the meeting occurred almost two months earlier, in November 2020. Even allowing for a lapse of time between the incident -- 34 of 47 -- [2021] FWC 5035 35 and Ms Ivanni asking the staff member about it, the incident was stale at the time the meeting occurred. [161] There was also inconsistency in the evidence about what the alleged incident involved, with Ms Ivanni accepting that the Applicant did acknowledge the customer but failed to take the customer’s details while Mr O’Brien said that the Applicant neither acknowledged the customer nor took details. I accept the Applicant’s evidence to the effect that Mr O’Brien informed her that as a result of the alleged treatment at the display home, the customer went next door to another display home of a rival builder and purchased from that builder. The Applicant queried this on the basis that the builder named by Mr O’Brien did not have a display home in that village. As a result, the basis of the meeting was doubtful. Contrary to Mr O’Brien’s view, details such as this are important to an employee whose work performance is being called in to question. The Applicant was perfectly entitled to query the factual basis of the matters that were being put to her. Further, the allegation lacked clarity and it was not unreasonable for the Applicant to point out an inconsistency in the information that was being relayed to her in relation to the allegation. [162] Mr O’Brien accepts that he probably said to the Applicant: “I don’t like your fucking attitude girlfriend”. Ms Ivanni did not specifically deny that Mr O’Brien made this comment but said in relation to it that she did not remember “that being said like that”. Ms Ivanni did remember Mr O’Brien pointing out that he owned the Company. Such a comment is likely to have been made in the context where Mr O’Brien took umbrage at being questioned by the Applicant about the factual basis of the allegation he wanted to discuss with the Applicant and reacted by swearing at her. Ms Ivanni also said that Mr O’Brien swore first. On the basis of the evidence, it is more probable than not that Mr O’Brien made the comments attributed to him by the Applicant and in particular referred to her as “girlfriend”. I also accept on balance that such comments are more likely to have been made in response to the Applicant querying the factual basis of the allegation put to her during the meeting than at the conclusion of the meeting. Given that Mr O’Brien and Ms Ivanni state that the Applicant swore at the point she was leaving the meeting, it is also more probable than not that Mr O’Brien swore first rather than that the Applicant swore first. Further, the comments attributed to the Applicant are more likely to have been made at the conclusion of a heated meeting when she was leaving rather than during the meeting. [163] It is also clear from Ms Ivanni’s evidence that Mr O’Brien told the Applicant that if she could not get on board with he was trying to do with the Company, then she was not right for the business and she could “fuck off”. Ms Ivanni stated that the Applicant replied with words to the effect of: “well clearly I'm not and will leave and you can go fuck yourself Shane” and/or “I’m fucking leave then” before Mr O’Brien told her that it was his Company and if she did not like the way he was managing it she could “fuck off”. I accept that on balance the Applicant did swear at Mr O”Brien but I find that the Applicant swore in response to Mr O’Brien’s language and in the context where she left a meeting where Mr O’Brien swore at her in at least equal and probably greater measure, and concluded by telling her to “fuck off”. [164] Ms Bullock was prepared to justify Mr O’Brien’s conduct in the meeting on the basis that such conduct could be expected from Mr O’Brien because he is a builder. The fact that Mr O’Brien is a builder or that he owns a Company, does not excuse him speaking in the way that he spoke to the Applicant, particularly in circumstances where she had been called in to a meeting to respond to an allegation which could (and did) have serious consequences for her -- 35 of 47 -- [2021] FWC 5035 36 employment. Mr O’Brien is a Director of the Respondent and as such his conduct sets the tone for dealing with employees. He can hardly complain if they adopt the same or a similar tone in response. In all of the circumstances the conduct of the Applicant in the meeting with Mr O’Brien and Ms Ivanni was not a valid reason for her dismissal. [165] If there is any doubt about Mr O’Brien referring to the Applicant as “girlfriend” during the meeting of 11 January 2021, I note that this is consistent with Mr O’Brien’s conduct while giving his evidence and in particular, addressing Counsel for the Applicant as “love” during cross-examination. [166] I do not accept that the Applicant’s alleged resentment of change which Ms Ivanni was attempting to implement, provided a valid basis for her dismissal. There was no substantive evidence of such resentment, other than a comment the Applicant was alleged to have made in relation to taking names of persons visiting display homes. The email of 13 January outlining examples of the Applicant’s failure to accept feedback indicates that the alleged comment was made at a sales meeting conducted by Ms Ivanni on 25 September 2020. Even if the Applicant made the comments, it was not a basis for dismissal. If the matter was considered to be of such significance that it could subsequently constitute a reason for dismissal, then Ms Ivanni should have discussed the matter with the Applicant at the time the comment was made. Similarly if matters allegedly documented by previous sales managers were of such significance it would also be expected that they would be raised with the Applicant. [167] Other issues with the Applicant’s conduct and work performance relied on by the Respondent as reasons for dismissal, were neither collectively nor individually matters which are valid, sound and defensible reasons for dismissal. In relation to any failure to take contact details from persons attending display homes, the Applicant explained that she was often busy with large numbers of persons attending. It is also the case that the emphasis on this had only commenced when Ms Ivanni took on the role of sales manager which had been vacant for some months. While it is a perfectly reasonable request to make of salespersons, absent a clear statement that failure to comply will result in disciplinary action and a warning to the Applicant that her failure to comply could result in dismissal, any failure on her part in this regard was not a valid reason for dismissal. [168] With respect to allegations that the Applicant absented herself from display homes at times when she was required to be there, the Applicant had reasons why she may have been absent on particular occasions. Further, there is a procedure for notifying the sales manager of absences. At worst, the evidence establishes that the Applicant did not comply with a procedure to notify Ms Ivanni if she intended to leave a display home early, in circumstances where there is no evidence that Ms Ivanni had ever drawn this matter to the Applicant’s attention. While there is evidence of emails between the Applicant and contract staff in relation to errors and oversights on her part with contractual and related documents, these are not matters of such significance that they could provide a valid reason for the Applicant’s dismissal. Rather, they are matters that could properly have been part of a performance management process. It is clear from the evidence of Ms Winter that documents said to evidence a number of these matters were not collected until Ms Winter’s witness statement for these proceedings was prepared. [169] Further, I note that there was no basis for any of the Respondent’s witnesses to assert that the Applicant had been dishonest in her communications explaining delays in contacting -- 36 of 47 -- [2021] FWC 5035 37 customers and the need for urgency in the preparation of contract documents and it is equally probable on the basis of the evidence, that the Applicant was simply mistaken when she made assertions about these matters in communications with contract staff. In any event, it would be expected that if there was a sound, defensible and well founded view about the Applicant’s honesty in relation to these matters it would have been raised with her before her dismissal. [170] In relation to the “Our Gift To You” promotion the Respondent’s own evidence in the form of minutes of a sales meeting of 1 August 2020 tendered by Ms Winter, establishes that at that date the promotion “will continue” and that a scooter promotion was being discontinued at that time. The email to the Applicant on 13 January indicates that the announcement that the promotion would not be continued was made at the October sales meeting without a date being provided. It is probable that a number of instances when the Applicant used the promotion were the result of quotes being in the system which included the promotion. It is also the case that every instance where the Applicant used the promotion was approved. While I accept that Ms Ivanni was becoming annoyed at what she considered the Applicant’s over-reliance on the promotion, this was not a valid reason to dismiss the Applicant. I also note that the correspondence between the Applicant and Ms Ivanni in which Ms Ivanni took issue with the Applicant using the promotion, was on 3 November 2020 and even if the “Our Gift To You” promotion ended in early to mid-October, the date that the matter was raised by Ms Ivanni was within the thirty day window for quotes to still include the promotion and there is no evidence that the Applicant continued to do so after the last of her then current quotes containing the promotion was approved. [171] When the reasons for the Applicant’s dismissal are scrutinised, I am left with the view that after the Applicant swore at Mr O’Brien when she left the meeting on 11 January 2021, and upon discovering that the Applicant had not resigned, Ms Bullock and Ms Ivanni set out to collect evidence of misconduct on the basis that there was at least a likelihood that the Applicant would be dismissed and there would be a requirement to justify this. I am also of the view that some of the supporting evidence in relation to these allegations was actually collated to defend Applicant’s the unfair dismissal application and was not identified and considered prior to the Applicant’s dismissal. Accordingly, there was no valid reason for the Applicant’s dismissal. Was the Applicant notified of the reason for her dismissal? [172] It is well established that procedural fairness requires that an employee is notified of a valid reason for dismissal before any decision to dismiss is taken, so that the employee has an opportunity to respond to the reason identified. In the present case, the Applicant was not notified of the reason for her dismissal in a manner that is consistent with the criteria in s. 387(b). At the hearing into the Applicant’s unfair dismissal application, witnesses for the Respondent were unable to clearly articulate the reasons for the Applicant’s dismissal. Ms Bullock’s evidence that the reasons were “layered” evidences the lack of particularity. The inability to articulate the reasons at a hearing reflects the failure of the Respondent to notify the Applicant of reasons for her dismissal prior to the decision to dismiss being take. [173] As well as suffering from lack of particularity, the show cause letter relied on by the Respondent as notification of the reasons for dismissal, was not in fact a show cause letter in the sense of putting the Applicant on notice of reasons why her employment was at risk so that she could respond before a decision to dismiss her was made. -- 37 of 47 -- [2021] FWC 5035 38 [174] The show cause letter discussed the meeting of 11 January 2021 and the Applicant’s conduct at that meeting. Further the letter raised the allegation of failure to take details of a potential client during a visit to a display home. As previously noted, there was a lack of clarity about this allegation, and if Ms Ivanni and Mr O’Brien could not agree on the details of when the incident occurred and what it involved, it is unsurprising that the show cause letter did not articulate the allegation with anything near the particularity necessary for the Applicant to have provided a response. Further, the Respondent’s evidence indicates that the real purpose of the show cause letter was to elicit an apology from the Applicant for her conduct and an assurance that it would not be repeated, indicating that regardless of the responses the Applicant may have provided the Respondent had formed views in relation to these matters. [175] The show cause letter went on to ask questions of the Applicant and to state that the answers she provided would be considered in determining whether her employment would be terminated. Those questions did not notify the Applicant of reasons for her dismissal. Further, the email to the Applicant of 13 January 2021 did not correct the deficiencies the Respondent’s notification to the Applicant of the reasons for her dismissal. The 13 January 2021 did not provide sufficient particularity for the Applicant to respond to the matters set out and can only have added to the confusion by repeating the assertion that the failure to take the names of visitors to the display home occurred in November 2020 in circumstances where Mr O’Brien believed that it was the weekend before the 11 January meeting. [176] Accordingly, I find that the Applicant was not notified of the reasons for her dismissal consistent with the criteria in s. 387(b) of the Act. Was the Applicant given an opportunity to respond to the reason for her dismissal? [177] The failure to notify the Applicant of the reasons for her dismissal, resulted in a failure by the Respondent to give the Applicant an opportunity to respond to those reasons. Notwithstanding the Respondent’s failure in this regard, the Applicant made an attempt to respond to the matters raised in the show cause letter. The responses the Applicant gave were reasonable in the circumstances and in particular the Applicant indicated that she wished to work at repairing any damage to the employment relationship. The Applicant also acted reasonably in requesting further details about the matters referred to in the show cause letter. As previously noted, what was provided in the email of 13 January 2021 was inadequate in terms of providing information necessary to enable the Applicant to respond to those matters. Further, the email stated that the Applicant should not respond in writing and that Ms Bullock and Ms Ivanni looked forward to discussing the matters. [178] However, the manner in which the meeting was conducted, did not invite a discussion. Ms Bullock and Ms Ivanni were looking for an apology from the Applicant for her conduct at the meeting on 11 January in circumstances where the Applicant had made allegations that she felt bullied and abused at that meeting and furthermore had not felt safe to attend the workplace for the show cause meeting. The failure of Ms Bullock and Ms Ivanni to acknowledge and discuss the Applicant’s concerns about these matters is indicative that there was no opportunity given to her to respond to the reasons for her dismissal. Was there an unreasonable refusal by the Respondent to allow the Applicant to have a support person? -- 38 of 47 -- [2021] FWC 5035 39 [179] The Applicant was given an opportunity to have a support person at the meeting and there was no refusal to allow this. Was the Applicant warned about any unsatisfactory work performance prior to the dismissal? [180] The reasons for the Applicant’s dismissal included unsatisfactory work performance. There is no evidence of any formal warning being provided to the Applicant. To the contrary, the Respondent’s witnesses all accept that none of the issues relied on as reasons for dismissal, were raised with the Applicant prior to the meeting on 11 January 2021. It is also notable that the Applicant was never the subject of a performance management process which would have been appropriate having regard to the relatively minor nature of some of the matters which the Respondent now asserts were reasons for her dismissal and the ease with which such matters could have been rectified had there been a discussion with the Applicant. In this regard, the Applicant accepted at the hearing that many of the matters were not unreasonable requirements. It is probable that had they been raised with the Applicant in a proactive manner, that at least some might have been addressed. Did the size of the employer’s enterprise impact on the procedures followed in effecting the dismissal of the Applicant? [181] There is no basis for a finding that the size of the employer’s business impacted on the procedures followed in effecting the dismissal of the Applicant. The Respondent has 74 employees according to its Form F3 Response to the Application and is by no means a small business with any lack of resources to deal with employment issues. Did the absence of dedicated human resource management specialists or expertise in the enterprise impact on the procedures followed in effecting the Applicant’s dismissal? [182] The Applicant has a dedicated human resource manager and is a member of an employer organisation with expertise in dealing with employment matters including the dismissal of employees. This is not a matter that impacted on the procedures followed by the Respondent in effecting the Applicant’s dismissal. Other relevant matters? [183] I consider it relevant that the Applicant raised an issue with the manner in which Ms Ivanni dealt with her as early as 3 November 2020 and sought that Ms Bullock conduct a conflict resolution meeting with Ms Ivanni. Ms Bullock did not respond to that request and took no action in relation to it. It is also relevant that Ms Ivanni was relatively new in the role of sales manager and the previous occupant of the role had left the Respondent’s employment some months earlier, as a result of issues with her performance in the role. At the point Ms Ivanni started in the role it had been vacant for some three months. This is a matter which should have been taken into account as at least partially mitigating some of the Respondent’s concerns with the Applicant’s work performance. Conclusion in relation to whether the Applicant was unfairly dismissed [184] After weighing the matters in s. 387 of the Act, I find that the Applicant’s dismissal was unfair. The dismissal was disproportionate to the gravity of the Applicant’s conduct. The reasons for the dismissal were not valid, sound or defensible and the Applicant was not -- 39 of 47 -- [2021] FWC 5035 40 afforded procedural fairness. Further, the dismissal was effected substantially because of the Applicant’s conduct in a meeting held on 11 January 2021. For reasons set out above, that conduct was in response to the inappropriate manner in which the Respondent’s director spoke to the Applicant and after the Applicant complained about the director’s conduct to the Respondent’s Human Resources Manager. Thereafter, the Respondent’s managers set about collecting information about a range of matters concerning the Applicant’s conduct which while not being without substance, had not previously been considered to be of sufficient weight to have been raised with the Applicant. Remedy [185] Having found that the Applicant was protected from unfair dismissal, and that her dismissal was unfair, it is necessary to consider what, if any, remedy should be granted to her. The Applicant did not seek the remedy of reinstatement. I accept that it would be inappropriate to reinstate the Applicant in all the circumstances, particularly in light of the manner in which the Applicant’s employment ended. [186] Section 390(3)(b) of the Act provides the Commission may only issue an order for compensation if it is appropriate in all the circumstances. A compensation remedy is designed to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably attributable to the unfair dismissal within the bounds of the statutory cap on compensation that is to be applied.90 [187] Having regard to all the circumstances of the case, including the fact that the Applicant has suffered financial loss resulting from her unfair dismissal, I consider that an order for payment of compensation to the Applicant is appropriate. [188] It is necessary therefore 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. [189] The established approach to assessing compensation in unfair dismissal cases was set out in Sprigg v Paul Licensed Festival Supermarket91 and applied and elaborated upon in the context of the current Act by Full Benches of the Commission in a number of cases as follows:92 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. Remuneration the Applicant would have received, or would have been likely to receive, if she had not been dismissed (s 392(2)(c)) -- 40 of 47 -- [2021] FWC 5035 41 [190] Calculations of damages or compensation involve an element of speculation in determining an employee’s anticipated period of employment. This is because the task involves an assessment of what would have been likely to happen in the future had the employee not been dismissed.93 [191] The difficulty in the present case is the lack of evidence about the economic state of the residential housing industry at the time the Applicant was dismissed and the failure of the Respondent to address this issue by calling evidence, despite being given an opportunity to do so. At the conclusion of the hearing in April there was an adjournment of almost three weeks, as the parties wished to refer to the transcript of proceedings before making closing submissions. I requested the representatives of both parties to have discussions during the adjournment and attempt to determine a weekly amount as a reference point if it was necessary for me to calculate compensation. The parties subsequently advised that they had been unable to reach agreement on a discount to be applied to any award of compensation to reflect negative changes that the Respondent contended had occurred in the residential construction market since the Applicant’s dismissal. [192] The Respondent in its oral closing submissions said that these changes should be taken into account in determining any compensation. I put to the Respondent’s representative that there was no evidence before the Commission in relation to negative changes to the residential construction market referred to in the Respondent’s oral closing submission. I also pointed out that there was an apparent disconnect between the submission that the residential construction market is suffering negative effects for the purposes of assessing compensation and the assertion put to the Applicant in cross-examination that the residential construction industry was “red hot” and that there were plenty of jobs that she could have applied for94. Given that the hearing of this matter was conducted in April 2021, it was implicit that the assertion that the market was “red hot” related to that point in time. In reply to this question, the Respondent’s representative stated that the assertion was an error and that it was intended to assert that the market was doing well until February 2021 when a Government incentive known as Home Builder concluded. 95 [193] I am not satisfied that there should be a discount to the calculation of the amount of lost remuneration, based on conditions in the residential construction market in the estimated period of employment. There is no evidence to support such a discount. Further, there is information to the contrary on the website of the Master Builder’s Queensland, dated December 2020, which indicates that there was some extension to the Home Builder grant. [194] I am satisfied that if the Applicant had not been dismissed on 14 January 2021, she would have remained employed by the Respondent for a further 12 weeks. I make this finding based on the fact that Ms Ivanni had been appointed relatively recently and was in the process of determining what needed to occur in order to improve the performance of the Respondent’s salespersons generally. While Ms Ivanni’s evidence was that her approach to this task was to observe salespersons and work proactively with them rather than issuing them with warnings, there were issues with the Applicant’s work performance which could properly have been raised by Ms Ivanni. In this regard, some of the issues raised in the meeting on 11 January 2021, while not being of sufficient weight to justify dismissal, were legitimate performance issues that could have been the subject of a performance improvement program. [195] I am also of the view that notwithstanding that the Applicant’s conduct at the 11 January meeting was a reaction to that of Mr O’Brien, the Applicant would not have -- 41 of 47 -- [2021] FWC 5035 42 responded well to any performance issues raised by Ms Ivanni. This is apparent from the Applicant’s earlier reaction to the email Ms Ivanni sent to her about the use of the “Our Gift To You” promotion. Further, the level to which the meeting on 11 January 2021 degenerated and the antipathy between Mr O’Brien and the Applicant, is not consistent with ongoing employment for a period of greater than 12 weeks. [196] In the 12 week period from 14 January 2021, the Applicant would have earned an amount of $45,271.32 based on her average weekly commission of $3772.61 for the 28 week period from 1 July 2020 to 14 January 2021 and superannuation contributions of 9.5%. Remuneration earned (s 392(2)(e)) and income reasonably likely to be earned (s 392(2)(f)) [197] At the point the matter was heard the Applicant had not obtained alternative employment and had no income from other non-refundable sources. Viability (s 392(2)(a)) [198] No submission was made on behalf of the Respondent that any particular amount of compensation would affect the viability of the Respondent’s business. My view is that no adjustment will be made on this account. Length of service (s 392(2)(b)) [199] The Applicant’s length of service with the Respondent (over 3 years) does not justify any adjustment to the amount of compensation. Mitigation efforts (s 392(2)(d)) [200] The Applicant did not take reasonable steps to obtain alternative employment following her dismissal. The Applicant applied for 12 positions but did not apply for any positions in the field she had worked in. In her evidence the Applicant said that there was no reason for her failure in this regard. The Applicant did not dispute the proposition put to her in cross-examination that there were many sales positions available in the residential construction industry at the time her employment ceased and up to at least April 2021 when her application was heard. [201] I have decided that it is appropriate to reduce the amount of compensation by an amount of 20% to reflect the Applicant’s failure to mitigate her loss. This reduction results in an amount of $36,217.00. Any other relevant matter (s 392(2)(g)) [202] It is necessary to consider whether to discount the amount of compensation ($36,217.00) for contingencies. This step is a means of accounting for the possibility of the occurrence of contingencies to which the Applicant was subject, which might have brought about some change in earning capacity or earnings.96 Positive considerations which might have resulted in advancement and increased earnings are also taken into account. -- 42 of 47 -- [2021] FWC 5035 43 [203] The discount for contingencies should only be applied in respect to an “anticipated period of employment” that is not actually known, that is a period that is prospective to the date of the decision.97 [204] Because I am considering an anticipated period of employment which had already passed at the time the hearing of this application concluded, there is no uncertainty about the Applicant’s earnings, capacity or any other matters during that period of time. The Applicant’s submission that a 35% deduction should be made for contingencies would have been relevant in the event that I determined an anticipated period of employment that extended beyond the date the matter was determined. In all the circumstances, my view is that it is not appropriate to discount or increase the figure of $36,217.00 for contingencies. [205] I do not intend make any deduction for wages paid to the Applicant in lieu of notice, on the basis that those wages would have been required to be paid in any event if the Applicant’s employment had continued for the period I have estimated that she would have remained in employment. If the Applicant was dismissed for performance issues of the type identified by the Respondent, notice would have been payable on termination of her employment. Further, I accept that the notice payments made to the Applicant were deducted from commission amounts paid after her employment ended. While this may have been consistent with her contract of employment those details were not in evidence and it is unclear whether the Applicant was covered by a modern award that provided for the debit credit arrangement that was applied to the Applicant’s remuneration. [206] I have considered the impact of taxation, but I prefer to determine compensation as a gross amount to be taxed according to law. Misconduct (s 392(3)) [207] The Applicant did not engage in any misconduct, so my view is that this has no relevance to the assessment of compensation and no deduction should be made on this basis. Shock, distress or humiliation, or other analogous hurt (s 392(4)) [208] I note that in accordance with s 392(4) of the Act, the amount of compensation I have calculated does not include a component for shock, humiliation or distress. Compensation cap (s 392(5)-(6)) [209] The amount of $36,217.00 is less than half the amount of the high income threshold immediately before the dismissal. It is also less than the total amount of remuneration to which the Applicant was entitled in her employment with the Respondent during the 26 weeks immediately before her dismissal. In those circumstances, my view is that there is no basis to reduce the amount of $36,217.00 by reason of s 392(5) of the Act. Instalments (s 393) [210] The Order for compensation was issued on Monday 9 August 2021 and no application has been made to date by the Respondent for any amount of compensation awarded to be paid in the form of instalments. -- 43 of 47 -- [2021] FWC 5035 44 Conclusion on compensation [211] 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 in reaching the amount of $36,217.00.98 Conclusion [212] For the reasons I have given, my view is that a remedy of compensation in the sum of $36,217.00 (less taxation as required by law) to be paid to the Applicant and superannuation contributions of $3,440.92 to be paid into the Applicant’s nominated superannuation fund is appropriate in the circumstances of this case. An Order99 to that effect was issued on 9 August 2021. DEPUTY PRESIDENT Appearances: Ms P Willoughby of Counsel instructed by Stonegate Legal for the Applicant. Ms E Kirkby of Master Builders Queensland for the Respondent. Hearing details: 19 & 20 April; 6 May. 2021. Brisbane. Printed by authority of the Commonwealth Government Printer <PR732847> 1 Witness Statement of Angela Hastings Exhibit A3. -- 44 of 47 -- [2021] FWC 5035 45 2 Witness Statement of Donna McIntosh Exhibit A1. 3 Witness Statement of Michelle Comerford Exhibit A2. 4 Witness Statement of Ms Kate Mayne Exhibit A6. 5 Witness Statement of Brad Kopcikas-Yates Exhibit A8. 6 Exhibit R1 Statement of Kendra Bullock dated 1 April 2021. 7 Exhibit R2 Statement of Tonia Ivanni. 8 Exhibit R3 Statement of Susan Elizabeth Winter. 9 Exhibit R4 Statement of Shawnee Collier. 10 Exhibit R5 Statement of Sarah May Scott. 11 Exhibit R6 Statement of Shane O’Brien. 12 Transcript PN135 – 147. 13 Exhibit R1 at Attachment A. 14 Transcript PN398 – 402. 15 Exhibit R4 – Statement of Ms Shawnee Collier Attachment C. 16 Ibid – Attachments A and B. 17 Ibid – Attachment D. 18 PN1150 – 1153. 19 Transcript PN1157 – 1162. 20 Transcript PN450. 21 Transcript PN452. 22 Exhibit R2 – Witness Statement of Ms Tonia Ivanni, Attachment B. 23 Transcript PN798- 799. 24 Transcript PN788. 25 Exhibit R1 – Witness Statement of Ms Kendra Bullock, Attachment C. 26 Ibid – Attachment C. 27 Ibid – Attachment D. 28 Transcript PN560 – 565. 29 Transcript PN589 – 583. 30 Transcript PN1352 – 1357. 31 Transcript PN1092. 32 Transcript PN801 – 802. 33 Exhibit R1 Statement of Ms Bullock – Attachment H. 34 Transcript PN950 – 951. 35 PN801. 36 PN950 – 954. 37 Transcript PN818 – 822. 38 Transcript PN97 – 978. 39 Transcript PN985 – 991. 40 Transcript PN1377. 41 Transcript PN1387. 42 Transcript PN1397. 43 Transcript PN1431 – 1443. 44 Transcript PN1425 – 1430. 45 Transcript PN1445. 46 Transcript PN1468. 47 Transcript PN1507 – 1508. -- 45 of 47 -- [2021] FWC 5035 46 48 Transcript PN161 – 164. 49 Transcript PN270 – 273. 50 Ibid – Attachment F. 51 Transcript PN604 – 609. 52 Transcript PN666 to 671. 53 Transcript PN1438. 54 Exhibit R1 – Witness Statement of Ms Kendra Bullock, Attachment G. 55 Exhibit A5; Transcript PN200 – 217. 56 Transcript PN672 – 689. 57 Ibid – Attachment H. 58 Transcript PN708 – 711. 59 Transcript PN284 – 287. 60 Transcript PN491. 61 Transcript PN1000, 1007. 62 Transcript PN333 – 339. 63 Transcript PN342 – 345. 64 Transcript 6 May 2021 at PN193. 65 Transcript 6 May 2021 at PN194. 66 [2012] FWA 8300. 67 Transcript 6 May 2021 PN110. 68 Transcript 6 May 2021 at PN120. 69 Transcript 6 May PN113. 70 Transcript 6 May 2021 at PN115. 71 Transcript 6 May 2021 at PN116. 72 Transcript 6 May 2021 at PN121. 73 Transcript 6 May 2021 at PN122. 74 Transcript 6 May 2021 at PN123. 75 Transcript 6 May 2021 at PN124. 76 Transcript 6 May 2021 at PN118. 77 Transcript 6 May 2021 at PN119. 78 Transcript 6 May 2021 at PN132. 79 Ibid. 80 Transcript 6 May 2021 at PN144. 81 Transcript 6 May 2021 at PN148. 82 Transcript 6 May 2021 at PN163. 83 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204. 84 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373. 85 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C. 86 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J. 87 Bista v Glad Group Pty Ltd [2016] FWC 3009. 88 Heran Building Group Pty Ltd v Anneveldt [2013] FWCFB 4744 at [15] per Acton, SDP, Sams DP and Hampton C citing MM Cables (a Division of Metal Manufacturers Ltd v Zammit AIRC (FB) S8106 17 July 2000. 89 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ. 90 Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015] FWCFB 3512 at [17] -- 46 of 47 -- [2021] FWC 5035 47 91 (1998) 88 IR 21 92 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 93 Double N Equipment Hire Pty Ltd v Humphries [2016] FWCFB 7206 at [16]-[17] 94 Transcript 6 May 2021 PN182 to PN183. 95 Transcript 6 May 2021 PN at PN185 to 187. 96 Ellawala v Australian Postal Corporation Print S5109 at [36] 97 Enhance Systems Pty Ltd v Cox PR910779 at [39] 98 Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [32] 99 PR732621. -- 47 of 47 --