Fair Work Act 2009
s.394—Unfair dismissal

Kahlee Efstathiou
v
Property Management Virtual Assistant Pty Ltd
(U2022/5519)

Application for an unfair dismissal remedy - whether the applicant was dismissed at the initiative of the employer – Applicant dismissed – Compensation appropriate – Amount reduced for failure to mitigate.

[1] On 19 May 2022, Ms Kahlee Efstathiou (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Property Management Virtual Assistant Pty Ltd (the Respondent). Ms Efstathiou clarified in evidence that she had changed her name to Efstathiou after being married, and her surname was Hassan at the time she commenced employment with the Respondent. 1

[2] The matter was listed for a conciliation before a Commission Conciliator on 13 June 2022 but did not settle. The matter was then allocated to me, and I listed the matter for a Directions Hearing on 28 June 2022 and again on 12 August 2022.

[3] I issued directions for the filing of material on 12 August 2022.The matter was listed for a Jurisdictional and Merits Hearing on 15 September 2022.

[4] The Respondent is a small business and filed their Form F3 Employer Response Form on 1 June 2022. The Respondent made the jurisdictional objection that the Applicant was not dismissed at the initiative of the employer and rather had resigned.

[5] The Applicant was represented at the hearing by Mr Lawrence Kong of Phoenix Law & Associates, and the Respondent was represented by Mr Stephen Mackie of counsel instructed by HR Law.

[6] The Applicant relied on her witness statement of 26 July 2022, 2 and her reply witness statement of 9 September 2022.3 The Applicant also relied on the witness statement of her husband Mr Andrew Efstathiou4, the statement of Mr Olivier Wooten,5 the statement of Mr Troy Williams6 and the statement of Mr Lawrence Kong.7 The Applicant filed written submissions before the hearing on 26 July and reply submissions on 9 September 2022.

[7] The Respondent relied on the witness statement of Ms Tiffany Bowtell (Ms Bowtell) of 12 July 2022, 8 the reply statement of Ms Bowtell dated 8 August 2022,9 and the further reply statement of Ms Bowtell dated 14 September 2022.10 The Respondent also relied on the statements of Mr Samuel David,11 and Mr Jeffrey Espineda.12

[8] The Respondent filed written submissions before the hearing on 12 July and reply submissions on 9 August.

[9] At the conclusion of the hearing, it was agreed the parties would be provided an opportunity to provide closing written submissions. The Respondent filed closing written submissions on 28 September 2022, the Applicant on 5 October 2022 and the Respondent filed closing submissions in reply on 12 October 2022.

[10] Ms Efstathiou commenced employment with the Respondent on 11 May 2020 and was employed as an Outsourcing Technician. On 7 May 2021 the Applicant was promoted to Head of Service and Technology working closely with the Chief Executive Officer of the Company, Ms Tiffany Bowtell.

[11] It is not in dispute, and I am satisfied that the Respondent is a small business employer in accordance with s.23 of the Act.

[12] Section 386 of the Act sets out when a person has been dismissed from their employment and states:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.”

Background facts

[13] The Respondent’s position is that the Commission ought to prefer the evidence of Ms Bowtell that the Applicant was not told that she was “fired” by Ms Bowtell in the course of an exchange between them on the afternoon of 27 April 2022.

[14] The Applicant submits that the jurisdictional issue falls to be determined by answering firstly whether the conduct of the Respondent on 27 April 2022 constituted a termination of the Applicant’s employment at the initiative of the Respondent or alternatively a resignation by the Applicant. Secondly, if the Applicant resigned, was she forced to do so because of the conduct, or the course of conduct engaged in by the Respondent.

[15] From the evidence and submissions, the following matters appear not to be in dispute:

(a) the Respondent operates in the Business Processing Outsourcing Market. Broadly speaking it arranges for (predominantly) Australian real estate agents to outsource various administrative tasks to workers based in the Philippines;

(b) the Respondent is based in Brisbane. At the time of the events, the Respondent’s Brisbane office involved one business owner Ms Bowtell, who is the sole director and secretary of the Respondent, and the Respondent engaged three employees, including the Applicant;

(c) The Applicant and Ms Bowtell had established a close relationship during the Applicant’s employment at the Respondent, such that the Applicant would spend time with Ms Bowtell outside of work, they travelled together, and further Ms Bowtell attended the Applicant’s wedding;

(d) the Applicant commenced work for the Respondent on 11 May 2020. Her total service at the time the employment relationship ended was just under two years;

(e) part of the Respondent’s process is that it uses “Best Practice Blueprints”, which are essentially templates.

(f) On 27 April 2022 Ms Bowtell attended a team meeting because the client implementation process was significantly behind. She asked the Applicant if she was using the blueprints, and the Applicant responded with words to the effect that she had been doing them the way she had always done it;

(g) Ms Bowtell made inquiries with staff and was told that the Applicant had been directing staff not to use the blueprints;

(h) After work on 27 April 2022 Ms Bowtell and the Applicant had a discussion. The contents of the discussion are disputed, but it is agreed that during a conversation between the Respondent and Applicant that evening, the Respondent asked the Applicant to hand over her swipe card (also called “fob pass”) allowing access to the work premises, and her external access to e-mail was cut; and to leave behind her company laptop.

(i) The Applicant did not resume her regular employment after 27 April 2022.

(j) The Applicant commenced working as a contractor for Podium Partners Pty Ltd on a part time basis.

(k) The Respondent has raised concerns with the Applicant and other recruitment officers in relation to the restraint clause in the Applicant’s employment contract with the Respondent.

Factual issues in Dispute

[16] The key factual dispute is what occurred during the conversation of 27 April 2022 between Ms Bowtell and the Applicant on the afternoon of 27 April, and specifically, whether or not Ms Bowtell said “you’re fired” during this exchange.

[17] The Respondent summarised other differences between the respective versions as including:

(a) Ms Bowtell states that the Applicant initiated the conversation, while the Applicant states that Ms Bowtell initiated the conversation;

(b) Ms Bowtell states that the Applicant started yelling, whilst the Applicant states that Ms Bowtell was yelling;

(c) Ms Bowtell states that the Applicant then abruptly walked out of the office, whilst the Applicant states that Ms Bowtell said words to the effect of “you’re fired” and demanded the return of company keys;

(d) Ms Bowtell states that the Applicant left the office and then came back shortly afterwards (at about 5.43pm), whilst the Applicant states that she did not return to the office; and

(e) Ms Bowtell states that she was in the bathroom when the Applicant returned to the office. Ms Bowtell said when she emerged she saw the Applicant “scooping papers” and opening drawers. She then asked the Applicant “what are you doing here?”, but the Applicant “froze” and did not respond. Ms Bowtell felt that this was suspicious behaviour and so proceeded to ask the Applicant for her keys, and then asked her to not come in to work the next day so she could “cool off”. The Applicant denied that this further conversation occurred.

[18] A dispute has also arisen surrounding the Applicant’s alleged “soliciting” of clients. The Respondent stated in its reply submissions the relevance of this allegation is that it demonstrates the circumstances that the Respondent was in – namely, it had a special vulnerability to the Applicant contacting its clients, which it needed to take steps to protect. The Respondent submits that this is relevant to understanding the context of the discussion on 27 April 2022 and the removal of after-hours and external access.

[19] In relation to the events of the 27 April the Applicant submits Ms Bowtell initiated the conversation and Ms Bowtell started yelling at the Applicant. Further the Applicant submits that Ms Bowtell said words to the effect “you’re fired” and demanded the return of the Respondent’s key fob as well as the company’s laptop that was provided to the Applicant, and

after this exchange the Applicant did not return to the office.

[20] The Applicant submitted that Ms Bowtell approached her at approximately 5:30pm and stated, “you have been caught out”. The Respondent’s version in that the Applicant had approached Ms Bowtell with an “aggressive comment”. The Applicant stated that Ms Bowtell was yelling, however the Respondent submitted that Ms Bowtell acted in a calm manner.

[21] The Applicant stated that Ms Bowtell yelled “you’re fired” and demanded that the Applicant return all company property, whereas the Respondent stated that the Applicant stormed out of the office. The Respondent submits in its reply submissions the Respondent said it was not put to Ms Bowtell during cross-examination that she yelled at the Applicant. The Applicant therefore cannot submit that Ms Bowtell’s evidence on this point is incorrect, per the rule in Browne v Dunne.

Events of 27 April 2022

[22] Ms Bowtell said in her first statement that a weekly training meeting was held at 2.30pm on Wednesday 27 April and the Applicant attended. Ms Bowtell said that during the meeting she was made aware by some Filipino employees that many client implementation processes were significantly behind in schedule and work had not been completed.

[23] Ms Bowtell said that along with other duties the Applicant is the sole employee responsible for onboarding clients through the eight-week training program on the virtual management system.

[24] Ms Bowtell said that from information obtained from interviews with Filipino employees and tracking log activity, she had a reasonable belief that the Applicant had been lying to her regarding the process by which she was doing the work. Mr David’s uncontested evidence corroborates Ms Bowtell’s evidence about her concerns regarding the process the Applicant had been following in relation the blueprints.

[25] Ms Bowtell said in her initial statement that at approximately 5pm on the same day as the weekly training meeting, she was leaving the office, still quite shocked and upset about the information she had gathered. Ms Bowtell said she did not want to discuss it with the Applicant that night as she had plans and needed to leave the office on time and was going to discuss the matter with the Applicant the following day.

[26] Ms Bowtell said that as she was leaving the office she said goodbye to the Applicant, to which the Applicant responded to her in an aggressive manner about what happened during the weekly training meeting earlier in the day.

[27] Ms Bowtell claimed that she was shocked by this behaviour. Ms Bowtell said that she then explained to her that she had discovered that the Applicant had lied to her and that they would talk about it the following day. Ms Bowtell said the Applicant then became emotionally hysterical, crying and yelling saying things such as “don’t call me a liar”. Ms Bowtell said the Applicant then grabbed her belongings and stormed out of the office and she was left standing there in shock and disbelief.

[28] Ms Bowtell said after a few minutes the Applicant returned to the office and she was surprised that the Applicant did. Ms Bowtell said the Applicant went back into her office to get something and she felt that this was very suspicious behaviour.

[29] Ms Bowtell stated for security reasons and because of the fact that the Applicant had broken trust that she owed to her employer, she proceeded to ask the Applicant for her keys and for her to come in to work the next day so she could “cool off”. Ms Bowtell said as there were other employees in the office, she did not want the Applicant’s aggression in the office and she felt this was necessary in order to protect Company information and to avoid the Applicant inflicting her aggression on other employees. Ms Bowtell said she also wanted to look into the Applicant’s performance further. Ms Bowtell said the Respondent had the ability under the Employment Contract to suspend the Applicant’s employment on full pay.

[30] Ms Bowtell said it is standard protocol to change employee logins if the employee’s behaviour is not normal.

[31] Ms Bowtell stated that she also told the Applicant as the Applicant was walking out to the hallway that Ms Bowtell would be speaking to her lawyer about the situation as it was not the first time the Applicant had walked out on her during a discussion relating to her performance. Ms Bowtell said the Applicant had behaved in this manner during a previous business trip.

[32] Interestingly, in her initial statement Ms Bowtell gave evidence she believed that the exchange between herself and the Applicant occurred at approximately 5pm, saying the Applicant returned to the office a few minutes after the exchange, and it was at this time she asked for the Applicant’s keys and told her not to come to work the next day. Ms Bowtell then said that at 5.30pm, after approximately 10 minutes had passed since the Applicant left the office, she telephoned the Applicant to confirm the arrangements for the Applicant not to be in the office the next day as she wanted her to “cool off” however the Applicant did not answer the call. In her reply statement Ms Bowtell changed her earlier position, saying she agreed that the conversation was at approximately 5.30pm, some half hour later. Ms Bowtell said a time report for the Applicant showed her last activity was at 5.28pm which Ms Bowtell now said was the time she was leaving the office.

[33] The Applicant said in her first statement that at approximately 5.30pm she was sitting in her office, when Ms Bowtell walked up and stated, “you have been caught out”. The Applicant said she was confused about the statement and told Ms Bowtell that she did not understand what she was referring to. The Applicant said Ms Bowtell stated that she had spoken to one of the Training Assistant’s in the Philippines who advised her that they do not create their process notes from scratch and alleged that the Applicant had lied to her.

[34] The Applicant claimed that she explained to Ms Bowtell that from her understanding the process notes were firstly copied and updated accordingly, and that she was just as surprised as Ms Bowtell from the information.

[35] The Applicant said Ms Bowtell became irritated and kept repeating that the Applicant had lied to her. The Applicant said she remained calm and advised Ms Bowtell that she had not in which Ms Bowtell proceeded to yell that she was a liar and she had been caught out. The Applicant said she tried to defend herself however Ms Bowtell continued to talk over the top of her with her voice progressively getting louder.

[36] The Applicant said that she realised that she could not have a conversation with Ms Bowtell in this state and the Applicant became upset and started to cry. The Applicant said she asked Ms Bowtell to stop yelling at her, however this only made Ms Bowtell yell at her more.

[37] The Applicant said she could not stand the situation anymore, so she closed her laptop and told Ms Bowtell that she was going to leave. The Applicant said that Ms Bowtell told her that she could not leave and that if she left her again, the Applicant would be “done”. The Applicant said she got up from her desk and while walking out of her office she asked Ms Bowtell to stop.

[38] The Applicant said that as she walked into the hallway Ms Bowtell yelled “fine you are fired, give me your keys”. The Applicant said in shock, she asked Ms Bowtell if she was serious and Ms Bowtell responded “Yes, give me your keys”.

[39] The Applicant said she took the swipe card for the building off her key ring and handed it to Ms Bowtell, in which the Applicant said Ms Bowtell further yelled “give me your laptop”. The Applicant said she told Ms Bowtell that it was on her desk and tried to walk out the hallway to the door. The Applicant said Ms Bowtell further yelled from afar “give me anything you have that belongs to Property Management Virtual Assistant”. The Applicant said she told Ms Bowtell that she did not have anything further on her in which Ms Bowtell responded by advising that the Applicant would expect to see a letter from her solicitor and slammed the door.

[40] Ms Bowtell in her second statement denied the Applicant’s version of how the conversation started, claiming she simply said “good night” to which the Applicant responded in an aggressive manner referring to the weekly training meeting earlier that day however Ms Bowtell said in her second statement she did not recall exactly what the Applicant said. Ms Bowtell said in her second statement that she is confident the Applicant’s version is incorrect because she wanted to leave the office on time and discuss the matter the following day as she had agreed to be at “Gallopers” in Ascot at 6:10pm – 6:15pm for a friend’s birthday.

[41] Ms Bowtell said in her second statement that new clients are brought into the business with a training program that should be eight weeks long and the Applicant was solely responsible for this. Ms Bowtell said the Respondent used blueprint/template documents making the process more efficient as the blueprint contains pre-filled information and it assists quality control. Ms Bowtell said it was after the weekly training meeting that she interviewed Filipino staff and discovered the blueprints were not being used.

[42] In her second statement, Ms Bowtell denied the Applicant’s version, and said she wanted to deescalate the conversation so she could leave the office and it was the Applicant who kept yelling. Ms Bowtell claimed that at that stage the Applicant suddenly grabbed her belongings and stormed out, Ms Bowtell said she had not said anything to the Applicant apart from that they could talk about it tomorrow.

[43] Ms Bowtell said in her second statement that she was surprised and concerned by the Applicant’s return. Ms Bowtell said the Applicant went into her office to get something, and she had already seen the Applicant get her belongings, so she believed the behaviour was suspicious and was concerned the Applicant was a security risk. Ms Bowtell said she asked the Applicant for her keys because this way she knew the Applicant would not return to the office after she had left and copy, alter or delete information. Ms Bowtell said it was at this time that she told the Applicant not to come in the next day. Ms Bowtell said this was also why she disabled the Applicant’s external computer access.

[44] The Applicant accepted in her oral evidence that her witness statements do not discuss the issue concerning the blueprints. The Applicant accepted that at about 5pm Ms Bowtell and the Applicant were both still at work and no one else was in the office. The Applicant rejected the proposition that she was unhappy with Ms Bowtell at that time because Ms Bowtell had asked her difficult questions during the team meeting earlier in the day. The Applicant rejected the proposition that when Ms Bowtell said that the Applicant she had lied to her, that she also said she would talk to her about it the following day.

[45] The Applicant accepted she had a missed call from Ms Bowtell between 5.30pm and 6pm but rejected the suggestion she returned to the office after the missed call.

[46] Ms Bowtell said in her oral evidence that when the Applicant re-entered the office, Ms Bowtell was in the bathroom at the time, so she didn’t see the Applicant walk in the front door, but she heard the front door open. Ms Bowtell said while she was drying her hands, she figured somebody must have been in the office, so she walked back into the main area where she saw the Applicant inside her actual office at that time. Ms Bowtell said she felt this was unusual behaviour because the Applicant had stormed out previously, and in previous times where she had walked away from Ms Bowtell during a conversation, the Applicant would typically approach her personally the next time she would see the Applicant. Ms Bowtell said this time the Applicant didn’t even announce she was in the office, and she was just in the office when Ms Bowtell saw her, and Ms Bowtell didn’t believe that the Applicant knew she was there.

[47] Ms Bowtell said during her oral evidence that she stood looking at the Applicant and the Applicant was acting abnormally and acting erratic. Ms Bowtell said the Applicant was scooping papers, opening drawers, wasn’t usual behaviour for somebody who just walked out of the office earlier with their own handbag. Ms Bowtell said the Applicant was touching papers, and fiddling in the office, touching the desk, and moving things around.

[48] Ms Bowtell was asked why she did not mention this in her statement and she said she did not know.

[49] Ms Bowtell also said during her oral evidence that she asked the Applicant the question ‘What are you doing back in the office’ and Ms Bowtell said the Applicant looked shocked and surprised that Ms Bowtell was there. Ms Bowtell said she thought the Applicant had actually thought Ms Bowtell had gone home and looked very surprised that Ms Bowtell was in the office. Ms Bowtell said when she asked the Applicant to answer her question the Applicant didn’t give an answer, and she froze. Ms Bowtell said she asked again ‘What are you doing here? and again, the Applicant froze.

[50] Ms Bowtell was asked again why these events she described were not in her statement and again she answered she did not know why.

[51] Ms Bowtell accepted during her oral evidence that she did ask the Applicant where her laptop was. It was put to Ms Bowtell that the purpose of the question was for the Applicant to leave the laptop in the premises and Ms Bowtell said no. Ms Bowtell said she wanted the Applicant to leave the laptop so she could look at it herself.

[52] Ms Bowtell said the conversation was a one- or two-minute conversation.

[53] The Respondent submitted that it must be remembered that Ms Bowtell provided additional detail about the Applicant’s behaviour because the Applicant asked her to do so. This is not a situation where Ms Bowtell gave new information to try and avoid answering a question, or in an attempt to defuse an accusation.

[54] In the course of her evidence the Applicant was consistent in her evidence that she did not return to the office. The Applicant agreed that Ms Bowtell asked her to hand over her keys and this included her swipe card on her keyring. The Applicant rejected the proposition that this was the card that she normally used to enter the building, saying there were three of four different swipe cards that they used between the team. The Applicant accepted that she had one on her keyring, and it is required to enter the building.

[55] The Applicant’s recounting of the events during her oral evidence in re-examination at approximately 5.30pm was as follows: 13

“Can you explain to me at approximately 5.30 pm - can you just explain in your own words what happened?---Yes.  I was sitting in my office and I was completing some work because I remember one of the training assistants was leaving and I was trying to put a plan together on how we would be able to cover her portion of the work.  Tiffany came into my office and said that she was leaving.  I turned around and I said, 'Okay', and then she said to me, 'You've been caught out.'  I turned around and I said, 'I don't know what do you mean?' and she said it again, she said, 'You have been caught out.'  And I said, 'I don't know what you mean.'  She said, 'You lied to me.'  I said 'I don't know what you're talking about.'  She said, 'You lied to me, I spoke with the training assistants and you lied to me.  You told me that you didn't process notes, that you duplicated process notes but in fact you were asking them to start them from scratch.'  I denied what she had said because it wasn't true.  I said, 'I don't know what you're talking about, that is not true.'  She raised her voice and began yelling at me, telling me that I was a liar over and over and that I had been caught out, over and over.  I said to her, 'Please stop yelling at me.'  She would not stop yelling.  She kept saying that I was a liar, that I had hidden this from her and I didn't know about it, that it was my fault again because I should know what they're doing.  I said to her, 'Stop yelling at me.'  She would not stop yelling at me.  I did get upset and I started crying.  My hands were shaking, I couldn't speak properly.  I didn't know what to do.  She was standing over me.  She's a bigger woman than I am and she was screaming at me.  I felt scared, I felt intimidated and I didn't know what to do.  So the first thing I thought of was to get out of the situation so I said - I got up and I said, 'I'm leaving.  I'm leaving.'  I grabbed my handbag and I went to walk out.  She said, 'I told you that if you walk away from me again, that's it.  That's the end.'  And I turned around and said to her, 'I can't stay here while you're screaming at me', and she said to me, 'Fine.  You're fired.  Give me your keys.  Give me your laptop.  You are done.'  I asked her if she was serious because it was a ludicrous thing to say.  I had done nothing wrong.  When I said, 'Are you serious', she said, 'Yes, give me your keys.'  I remember my hand was shaking so I took the keys off my keyring and handed them to her.  She said, 'Where's your laptop?'  I said, 'My laptop's in my office.'  I went to walk out the door, she yelled after me and she said, 'I want anything of yours that belongs to PMVA', and I turned around and I said, 'I don't have anything that belongs to you.'  I walked out into the hallway to go to the lift.  She opened the door and screamed out into the hallway that I would be getting a lawyer's letter from her in the morning.  I got into the lift, I didn't respond.  I got into the lift.  I went downstairs, I walked out the front door.  I picked up my phone, I called my husband.  I was crying, I was in shock.  I couldn't stop shaking and I said to him, 'I've just been fired.'  He said, 'What?  What are you talking about?'  I said, 'I've just been fired.'  And he said, 'Where are you?'  I said, 'I'm just out the front', and then he said to me, 'I'm coming to get you.' …..”

[56] The Applicant said in her first statement that she got in the lift and asked her Husband to pick her up from the office following the incident.

[57] The Applicant submitted that she called her Husband to tell him she had been fired, asking him to collect her from HellCat Maggie. The Applicant submits that Mr Efstathiou’s evidence also confirmed that he received a call from the Applicant and the Applicant had said words to the effect to Mr Efstathiou that Ms Bowtell had fired her demonstrating the Applicant’s subjective response to the altercation with Ms Bowtell. Mr Efstathiou said in his statement that he received the phone call at approximately 5.34pm on 27 April.

[58] Ms Bowtell said in her second statement that at the point the Applicant suddenly grabbed her belongings and stormed out of the office she had not said anything to the Applicant apart from that they would talk about it tomorrow.

[59] Ms Bowtell said she thought the conversation was over so at 5.34pm she called her partner to tell him what had just happened, and she then thought it would be better if the Applicant took the next day to “cool off”, so she called the Applicant to say that, but the Applicant did not answer the phone.

[60] Mr Efstathiou said that during the telephone conversation (at 5.34pm) his wife said words to the effect:

a. Ms Tiffany Bowtell has just fired her;

b. She’s extremely sad and upset about the situation;

c. She asked me to pick her up;

d. She told me that she needs to calm down and she was going to get a drink at the bar named ‘Hellcat Maggie’; and

e. She asked me to pick her up at Hellcat Maggie.

[61] Mr Efstathiou said after he ended the call with his wife he then got in his car and drove to pick her up. He said at approximately 6.00pm he parked his car at Rich Lane and called his wife and asked her to come out. He said he saw his wife walk out of Hellcat Maggie, and she got in the car and he drove home.

[62] Mr Efstathiou agreed that the Applicant and Ms Bowtell had been close friends. It was put to Mr Efstathiou that his wife had told him the issue of whether Ms Bowtell had said his wife was fired was an issue in the case, and Mr Efstathiou’s evidence was she told him on the day. Mr Efstathiou accepted his statement was made five months after the events occurred. He insisted that he remembered it clearly.

[63] Ms Bowtell said that at 5.38pm she texted her friend to say that she was leaving the city. The text reads as follows:

“Just leaving the city now. I’ll be back just in time.”

[64] Ms Bowtell said in her second statement she knew that the Applicant returned to the office at 5:43pm because she has an email from the Secretary of the Body Corporate that advises that the only entry between 5.00pm and 6:00pm was in lift #2 at 5:43pm, and lift log shows that lift number two was accessed at 5.43pm by the Applicant and Ms Bowtell provided an itemised key fob report.

[65] In her reply statement the Applicant denied that she returned to the office following the altercation. The Applicant referred to the record of her calling her husband at 5.35pm, and she said immediately after calling her husband she walked to Hellcat Maggie situated at Rich Lane and Wharf Street and ordered a wine at 5:38pm and produced a copy of the purchase of receipt from Hellcat Maggie at that time and her bank account details matching the transaction details on the purchase receipt. The Applicant said she did not leave Hellcat Maggie until her husband picked her up at approximately 6pm.

[66] The Applicant said in her reply statement that she denied the itemised key fob report provided by the Secretary Body Corporate shows she accessed the building at 5:43pm. The Applicant said the company key fobs are not specifically allocated to employees, and Ms Bowtell edited the itemised file provided by the secretary of the body corporate to indicate that she was the last entry. The Applicant said during her employment other employees were not provided key fobs and would often ask to borrow the one in her possession.

[67] In her further statement in reply, Ms Bowtell said that she was confident fob number U00287 was the fob issued to the Applicant as it is the only one, other than her own that has buttons to activate garage doors. Ms Bowtell said that on 13 September she scanned the fob that was allocated to the Applicant into the car park foyer, and took a photo of her partner scanning the fob, and on 14 September the Security Body Corporate was asked to provide a copy of the 13 September fob activity which showed the scanning was by fob U00287.

[68] Ms Bowtell said that the fobs are allocated to individual staff members, that the information in the Body Corporate report was correct and added highlighting and a key to the report to show which employees had which fob.

[69] Ms Bowtell also said that Hellcat Maggie was a 1-minute walk from the office and there was considerable time for the Applicant to order a drink and then return to the office.

[70] Ms Bowtell accepted during her oral evidence that she had put the colour marks and the names at the bottom of the document provided by the secretary of the body corporate but said she did not fabricate the document, all she did was to highlight it for a method of deduction. Ms Bowtell accepted that she did not see the Applicant enter lift 2 at 5:43pm.

[71] The Respondent submitted Mr Efstathiou admitted that he knew about the issues in the case, and that he has spoken to the Applicant about this point prior to giving his statement on Friday, 9 September 2022. The Applicant submitted that while this is understandable, it means that Mr Efstathiou’s recollection is not truly independent and is not either dispassionate or disinterested.

[72] The Respondent submits that the Applicant did not give evidence supporting Mr Efstathiou’s version of events, such that a Jones v Dunkel inference may be drawn, and also the length of the conversation was 1 minute 38 seconds. The Respondent submitted that in the ordinary course of events, a conversation would last longer than this if significant information of this type was disclosed.

[73] The Respondent submits that the door fob entry data shows the Applicant re-entering the building at 5.43pm, and the Applicant’s evidence is that she had a key fob on her keyring. The Respondent submits that the Applicant’s statement that she did not have a key fob (or swipe card) assigned to her ought to be rejected, as her own evidence is that she kept the swipe card on her key ring and normally used it to enter the building.

[74] The Respondent submits that the Applicant’s evidence on this point is strangely contradictory in that she is simultaneously submitting that she did not have her own swipe card, but also that it was significant when she was asked to return it.

[75] The Respondent submits that the door entry data of 14 September 2022 confirms that fob pass U00287 is the one that was given to the Applicant. The door entry data of 27 April 2022 shows that pass U00287 was used to enter the building at 5.43pm.

[76] The Respondent also referred to the covering e-mail to attachment TB-24 showing that Ms Bowtell attempted to locate CCTV footage from the elevator on that day, the Respondent submitting that this suggests that she genuinely believed that the Applicant had returned to the building.

[77] The Applicant submits that Respondent’s case with respect to the door fob entry data should not be accepted.

[78] The Applicant submits that Ms Bowtell, under cross examination confirmed that she did not see the Applicant return to the office. In reply to this submission the Respondent said that Ms Bowtell’s evidence was not, as is implied by the Applicant, inferential or equivocal as to whether or not the Applicant had returned to the office. Ms Bowtell’s unequivocal evidence was that she saw the Applicant in the office, and whether she also saw the Applicant emerging from the elevator is irrelevant.

[79] The Applicant submitted that the act of Ms Bowtell fabricating a piece of evidence provides some basis of inferring that the true state of affairs does not assist the Respondent’s position. The Respondent in reply objected to the repeated accusation that Ms Bowtell “fabricated” a document. The Respondent submitted that Ms Bowtell added highlighting and a key explaining the highlighting, and was open about the changes that she made, and that is not “fabrication”. I agree with the Respondent’s submission on the issue.

[80] The Applicant submitted that viewing the events objectively, a reasonable person would find that it is unconvincing that the Applicant ordered and consumed her drink and then returned to the building within a five-minute period. The Respondent submitted in reply that there are multiple plausible explanations for how the Applicant can buy a drink and then re-enter the office. The Respondent provided examples that the Applicant could (1) drink quickly; (2) leave the drink at the bar while she goes to the office next door; (3) ask the barman to keep the drink behind the bar until she returns or (4) purchase the drink but ask the barman not to serve it until she returned. The Respondent submits that in contrast, no alternate explanation is offered to explain why the door entry data shows the Applicant’s pass being used to re-entering the building at 5.43pm.

[81] The Applicant submits that the Applicant returned the fob to Ms Bowtell prior to leaving the building, and it is clear an individual had returned to the building at 5:43pm, however the fob entry data does not give evidence to suggest whether Ms Bowtell or the Applicant had re-entered the building. The Respondent submitted in reply that the implication appears to be that Ms Bowtell used the pass herself at 5.43pm, presumably as part of some elaborate scheme. The Respondent submitted that this was not put to Ms Bowtell in cross-examination, and so the submission cannot be made. The Respondent further submits that such a proposition is fanciful, as it would require a remarkable level of foresight and quick-thinking, all within the few minutes between the conclusion of the first conversation and 5.43pm.

Applicant attempts to log into email at 7pm 27 April

[82] The Applicant said in her first statement that she arrived home around 7:00pm and intended to send Ms Bowtell an email on arrival to confirm what had happened, however she noticed that her email access had been removed and the password had been changed.

[83] The Respondent refers to the Applicant’s attempt to log into her work e-mail on the evening of 27 April 2022 at approximately 7.00pm. The Respondent submits that the Applicant would have no reason, or no legitimate reason, to access her work e-mails if she believed she was “fired.”

[84] The Applicant accepted she could not log into her emails when she attempted to log in at 7pm and accepted had she been able to log in she would have had access to confidential information.

Text message at 8.26pm from Applicant to Ms Bowtell

[85] A text message the Applicant sent to Ms Bowtell at 8.26pm reads “Yes, I have a missed call.” It was put to the Applicant that she did not say anything about being fired in this message. The Applicant accepted that.

Applicant’s email to Ms Bowtell at 8.47pm on 27 April 2022

[86] The Applicant said at 8.47pm she decided to send an email to Ms Bowtell from her personal email requesting her confirmation that she was not required to attend work the following day. The Applicant said she drafted the email quickly while she was feeling traumatised by the confrontation which is why the email contained little information in respect to the altercation.

[87] The email is headed “Tomorrow” and reads as follows:

“Hi Tiffany,

Confirming you advised me not to come in tomorrow.

Please advise.

Thank you”

[88] The Respondent relies on the Applicant’s e-mail of 8.47pm which the Respondent describes as seeking confirmation that she did not need to come in to work the following day. The Respondent says the most obvious explanation for the Applicant sending this e-mail is that the e-mail means what it says, the Applicant was confirming a temporary absence “tomorrow,” not a dismissal.

[89] The Applicant accepted that the email did not say anything about the Applicant being fired. The Applicant rejected the assertion that Ms Bowtell had told the Applicant to take the next day off to cool off. The Applicant accepted that she was not forced to send the email and said at the time she was “extremely traumatised.”

28 April 2022

Email sent to Applicant from co-worker at 7.36am on 28 April forwarded on to Ms Bowtell

[90] The Applicant accepted she received a text message from a co-worker at 7.36am the following morning about not coming into work and forwarded the message on to Ms Bowtell at 7.41am. The Applicant said she simply forwarded the message because she said it was the right thing to do.

[91] The Applicant said in her reply statement that she wanted to pass the message on to Ms Bowtell for the benefit of that employee because she did not want that employee to get in trouble as a consequence of the Applicant’s silence.

Ms Bowtell’s Message to Mr Espineda at 7.58am on 28 April

[92] The Respondent relies on Ms Bowtell’s message to Jeffrey Espineda at 7.58am on 28 April 2022 that states “Kahlee will not be in the office today”, which the Respondent submits is consistent with her belief that the Applicant had not been “fired”. This message is sent before the Applicant first communicated that she believed she had been expressly dismissed, which occurred at 12.01pm on 28 April 2022.

[93] The Respondent submits that this consistency of approach can be contrasted with the Applicant’s evolving view of the conversation, which begins with the Applicant confirming that she was not coming in “tomorrow”, then evolves into referring to both “verbal advice” about coming back into the office on Friday 29 April 2022, then finally depicts an exaggerated display of “yelling and screaming”, with no suggestion of any “verbal advice”.

[94] The Respondent repeated its reliance on its earlier submissions that Ms Bowtell’s message to Mr Espineda at 7.58am on 28 April 2022 stated that “Kahlee will not be in the office today” which was sent before the Applicant sent the message expressly claiming to have been dismissed. The Respondent contrasts this with the Applicant’s message that she would not be coming in “tomorrow” and subsequently referring to “verbal advice” about coming back into the office on Friday 29 April 2022, and what the Respondent described as an exaggerated display of yelling and screaming with no suggestion of verbal abuse.

[95] The Applicant submits that Mr Espineda’s evidence is of limited relevant in determining the matter and, particularly the events of 27 April 2022. In any event, the Applicant also submits that the evidence ought to be rejected because:

(a) Mr Espineda was able to confirm that he had changed the Applicant’s password to login to the Respondent’s internet platform which precluded the Applicant from logging in;

(b) Mr Espineda was not a witness to the events that occurred between the Applicant and Ms Bowtell;

(c) Mr Espineda cannot confirm whether the Applicant remained employed as of 27 April 2022.

[96] The Applicant submits that further, Mr Espineda also confirmed during cross-examination, he was never requested by Ms Bowtell to provide the Applicant with a revised password to enable her to login to the Respondent’s platform.

[97] The Applicant accepted during her oral evidence that she did have access to a lot of the Respondent’s confidential information such as its rates and client lists.

Ms Bowtell email to Applicant 11.42am 28 April

[98] At 11.42am the following day Ms Bowtell sent an email to the Applicant that reads as follows:

“Good morning Kahlee

Yes that is correct. After the conflict incident in the office last night I feel that it is best that you take a day to reflect on your responses regarding your duties.

Your employment status is still ongoing.

You will be required to be back at work tomorrow, being 29^th April at 9am. You can call me and I will let you in from the carpark.

Please acknowledge receipt of this email.

Regards”

[99] The Applicant said in her first statement that she was incredibly confused as to why and how Ms Bowtell could change her mind overnight and state that her employment is ongoing.

[100] Ms Bowtell was asked during her oral evidence why she felt it was necessary to tell the Applicant in the email that her employment was ongoing. Ms Bowtell said the reason she wrote the email was to be very clear that the Applicant had not been terminated and her employment was still ongoing. Ms Bowtell said the Applicant and herself had had previous arguments before and they usually resolved themselves quickly.

[101] The Applicant submitted that Ms Bowtell took the view in her email communication that it was necessary to state in her email of 11:42 am dated 28 April 2022 to the Applicant that “Your employment status is still ongoing” despite the originating email of the Applicant making no mention of her employment status. The reason Ms Bowtell gave during cross examination, was to confirm with the Applicant that her employment was ongoing because she felt it was necessary to be “very clear that she had not been terminated and her employment was still ongoing”. The Applicant submitted that Ms Bowtell, for some reason, “felt it necessary to be clear” that she had not terminated the Applicant’s employment despite saying in her Statements and during cross examination that she:

(a) did not say the words to the effect that ‘you’re fired’ to the Applicant; and

(b) said words, explicitly, to the Applicant to ‘cool off the next day’.

Applicant’s email to Ms Bowtell at 12.01pm on 28 April 2022

[102] At 12.01pm the Applicant responded to Ms Bowtell’s email of 11.42am as follows:

“Hi Tiffany,

You told me last night that I was fired. I don’t feel comfortable coming back to the office after the way I was treated.

I will take your verbal advice and agree to come in tomorrow to discuss you terminating my employment but do not want to be subject to what I was to last night.”

[103] The Applicant agreed that this was the first communication where the Applicant had said she had been fired.

Ms Bowtell’s email to the Applicant at 12:19pm on 28 April 2022

[104] Ms Bowtell responded by email to the Applicant at 12:19pm as follows:

“Kahlee

You are incorrect. I did not say you were fired.

I told you not to come in because your behaviour towards me was aggressively elevated. I did not terminate your employment.

As already stated in writing – Your employment status is still ongoing.

You are required to report to work tomorrow as requested.

I will not be discussing anything further with you at this time.

Regards...”

Applicant’s email in response to Ms Bowtell at 12.54pm 28 April 2022

[105] At 12:54pm the Applicant responded to Ms Bowtell’s email as follows:

“You told me I was fired, you took my keys and shut down my email.

My behaviour was not aggressive I was crying because you would not stop yelling at me.

You terminated my employment on the spot. You cannot just change your mind.

Once again I will discuss your termination of my employment but that is all I am willing to do.”

[106] It was put to the Applicant that she did not mention being fired in the earlier emails but mentioned it three times in the later emails. The Applicant agreed, saying that was when she was no longer traumatised by the event that happened.

29 April 2022

Ms Bowtell’s email to the Applicant at 11.42am on 29 April 2022

[107] At 11.42am on 29 April Ms Bowtell sent an email to the Applicant as follows:

“Dear Kahlee,

As has been confirmed to you on a number of occasions now (verbally and in writing) no one has terminated your employment.

You were instructed as follows;

1. Take Thursday 28 April 2022 as paid leave day to regroup yourself so we are able to have a constructive performance discussion; and

2. To report to work at 8.30am on Friday 29 April 2022 as normal.

Your role remains open and available for you to return to.

You have failed to return to work as required today and you have failed to provide any communication to me as to why you were not at work as required.

You are required to immediately return to work today or provide a valid reason for your absence. If you fail to do one of these two actions by 10am Tuesday 3 May 2022, we will have considered that you have abandoned your employment and record your termination of the employment relationship.

Please contact me immediately

Regards”

Applicant’s email to Ms Bowtell at 1.30pm 29 April 2022

[108] The Applicant responded to Ms Bowtell by email at 1.30pm was as follows:

“Tiffany,

You and I both know you terminated my employment in a fit of rage Wednesday night, you took my keys and swipe, shutdown my email access and also stated that you would be sending me a lawyer’s letter Thursday.

You may have done this to intimidate or threaten me but your intent was clear with you telling me I was fired and not to come back, you even told me to return my laptop which was sitting on the desk, you also shouted in the hallway to return any company items.

To me this was the end of a job I poured my heart and soul in, made many sacrifices in order to further the business.

You have made it untenable for me to return to the office with your agressive (sic) and unpredictable behaviour, to which current and past employees can attest too.

I have never been harassed or screamed at in the manner you did in Thursday night, you would not stop even though I asked you repeatedly to do so.

I am at the point where I am fearful of my mental health as a result of this behaviour and treatment, I am seeking legal advice and my solicitor will be in contact with you, please refrain from contacting me.

I can’t tell you how hurt and disappointed I am with your treatment of me, I have worked so hard and invested so much time into my role and making your business successful.

No one deserves to be treated that way, least of all me.”

Ms Bowtell’s email to the Applicant at 4.46pm 29 April 2022

[109] At 4.46pm on 29 April Ms Bowtell responded to the Applicant’s email as follows:

“Dear Kahlee,

Your recount of our discussion on Wednesday is just simply untrue.

I take it from your email today that you are resigning from your role with the company effective immediately. As a gesture of goodwill, I agree to waive your required two week notice period.

Your termination pay for accrued entitlements up to and including today will be processed next week.

I wish you all the best in your future endeavours.

Kind regards

Tiffany”

Alleged history of Applicant and Ms Bowtell resolving issues between them

[110] Ms Bowtell said that she had discussed the issue of the Applicants’ performance and client implementation delays during a business trip together to the Philippines on 17 April 2022 and during that discussion the Applicant was getting upset and agitated and a heated argument ensued. Ms Bowtell said the Applicant got up and abruptly walked out in a huff. Ms Bowtell said the following day they discussed the Applicant’s behaviour the previous day and that she advised the Applicant her behaviour was not in line with company standards.

[111] The Applicant said that on the business trip referred to, she was having drinks with Ms Bowtell when Ms Bowtell started to complain to her about the new employees that she had hired. The Applicant said she started to feel quite uncomfortable with the situation, so she decided to go back to her room to avoid conflict.

[112] The Applicant submitted that in consideration of the relationship between the parties and their ability to resolve argument’s easily in the past, it may only be inferred that the altercation that occurred between the parties on 27 April 2022 was not simply an argument. Ms Bowtell also stated, during cross examination, that “Kahlee and [her] had previous arguments in history before, and they had usually resolved themselves very quickly”.

[113] The Applicant submitted that the most obvious explanation for the Applicant sending an email to Ms Bowtell stating “you told me last night I was fired, I don’t feel comfortable coming back to the office after the way I was treated”; was because the Applicant had been told she was “fired” by Ms Bowtell. The Applicant submitted that it may be presumed that had the Applicant simply been told to take a day to “cool-off” the parties would have resolved the matter similarly to how they would resolve disagreements in the past.

[114] In response to the Applicant’s submission that the parties had a past history of resolving disputes, the Respondent noted that the Applicant had just had her involvement with incorrect “blueprint” usage uncovered (noting that Ms Bowtell was not cross-examined on this point, and that Mr David was not called from cross-examination).

[115] The Respondent submitted that the Applicant has shown a tendency to “go on the offensive” when material does not fall her way and submitted that when the door entry data showed that her swipe card was used to re-enter the building, she did not accept that her recollection could be incorrect. Instead, she denied that her swipe-card was her swipe-card, despite her own case partially resting on being forced to return it from her key ring.

[116] The Respondent also submitted that when an accusation was made of her “soliciting” clients, she vehemently denied that “solicitation” had occurred on the basis that she did not initiate contact. Yet her own oral admission in cross-examination was that she did initiate contact, and her own witness on this point (Mr Williams) did not deny making a prior inconsistent statement to that effect.

[117] The Respondent also submitted that when the Applicant was asked whether she had applied for any positions within her skill-set in the real estate industry, she responded in a defensive way that showed no insight into her own contribution to her present financial position.

The Respondent submitted that it is fair to observe that the Applicant was unlikely to react to news regarding her use of blueprints by calmly admitting that she was in error.

Alleged Attempt to get other job with a competitor whilst still employed

[118] Ms Bowtell said that since the Applicant had left employment with the Respondent it had come to her attention that an email had been sent to the Applicant’s work email address on 4 May 2022 at 2.57pm from Iconic Recruitment confirming a job interview with a Stafflink who is a direct competitor of the Respondent, and the Applicant was aware of non-compete restraints in her Employment Contract.

[119] The Applicant said that at approximately 12pm on 3 May she applied for an alternative role through a recruitment agency and received an email confirmation for an interview on 4 May 2022.

[120] The Applicant said that on 5 May the Recruiter telephoned her to apologise as she had accidently sent the Applicant’s interview confirmation to her work email account, and she received a call from Ms Bowtell. The Applicant claimed that the Recruiter told her that Ms Bowtell had abused and screamed at her in respect of the email shouting at her that the Applicant still worked at the Respondent and that it was a conflict of interest to place her in another role. The Applicant claimed that the Recruiter told her that Ms Bowtell had threatened to sue the Recruiter and the Applicant.

[121] Ms Bowtell claimed that the email made clear to her that the Applicant was actively looking for other employment in the period prior to ending her employment. In her second statement Ms Bowtell denied the Applicant’s evidence concerning the Recruiter.

[122] In her reply statement the Applicant denied that she had an intention to leave her employment prior to 27 April and only spoke to the Recruiter on 3 May.

[123] The evidence tends to support the Applicant’s claim that she did not seek other employment whilst still employed with the Respondent.

Allegation that the Applicant engaged in solicitation of Respondent’s clients

[124] Ms Bowtell said that on 16 May 2022 she was made aware by her IT Manager that on 13 May 2022 a file that the Applicant had been working on with a client was shared by the client to the Applicant’s personal Hotmail address, showing that the Applicant had an intention to conduct work personally for clients in the future.

[125] Ms Bowtell said that at 12.23pm she spoke with the client on the phone and he confirmed that he had been approached by the Applicant to engage her services directly. Ms Bowtell said that soliciting clients of the Respondent is a breach of the Employment Contract.

[126] The Applicant denied in her reply statement that she solicited Podium Partners and understood they remain a client of the Respondent.

[127] The Applicant said any client of the Respondent that has engaged her personally has done so of their own accord. The Applicant said she did not obtain any confidential information from the Respondent or use any confidential information to solicit clients. The Applicant provided a reference from Jess Jones a former client of the Respondent indicating she had engaged the Applicant after she had left the Respondent on the basis of the client’s dissatisfaction with the Respondent.

[128] Ms Bowtell said in her further reply statement that she has learned that the Applicant was offering free assistant products that were outside of the scope of the client’s agreement with the Respondent, which is what Ms Jones must have been referring to when she said that “she would immediately offer a project task or additional task..”.

[129] Ms Bowtell said on 23 August she was provided with a screenshot of a text message that the Applicant had sent to one of the Respondent’s clients. Ms Bowtell said the Applicant contacted this client to ask for a statement, meaning the Applicant must have kept at least some client contact details after her employment finished.

[130] Ms Bowtell said in her further reply statement that the Applicant met Podium Partners as a result of her work with the Respondent and her employment contract dealt with the agreement by the Applicant not to solicit employees, customers and suppliers.

[131] Ms Bowtell said in her further reply statement that on 31 August Mr Williams sent an email to the Respondent advising that he would not be renewing a contractual arrangement VA1, and in the same email requesting to terminate another agreement VA2, and one of the reasons he gave for seeking to terminate VA2 was that his “cost to serve per report is cheaper delivered locally here in Australia.” Ms Bowtell said in reference to her first statement that Podium Partners was the client that that she said had told her that it had been approached by the Applicant and her conversation had been with a Mr Williams at that time which she said occurred on 16 May.

[132] Ms Bowtell was asking during cross examination whether she thought that Mr Williams requested to mutually terminate VA2 as a consequence of the Applicant soliciting him and she said she did not know.

[133] Mr Williams gave evidence that he is the sole director and secretary of Podium Partners. He said Podium Partners conducts routine inspections and compliance reporting for residential properties on behalf of real estate agents and property managers.

[134] Mr Williams said on or around April 2022 Podium Partners retained the Respondent to provide virtual assistance initially with one VA, then adding a second VA this year. Mr Williams said to date Podium Partners remains engaged with the Respondent.

[135] Mr Williams said he came to know the Applicant as she was working on his matters while she worked for the Respondent. Mr Williams said the Applicant did not at any stage:

(a) Solicit him or Podium Partners.

(b) On behalf of a company, solicitate, induce, encourage or entice him or Podium Partners to engage another company’s services that is in competition with the services or business carried on by the Respondent.

(c) Solicitate, induce, encourage or entice him or Podium Partners to engage her for services that is in competition with services or business carried on by the Respondent.

[136] It was put to Mr Williams that on 31 August 2022 he wrote to the Respondent saying he wouldn’t renew the first contract and he agreed. It was put to Mr Williams his statement did not tell the whole story because he was seeking to end the contracts. He did not agree.

[137] Mr Williams agreed that the Applicant worked for his business as a contractor. He denied that his correspondence to the Respondent saying that his cost to serve per report was cheaper delivered locally here in Australia was referring to the Applicant. Mr Williams said the Applicant works for him in a different capacity to the services the Respondent is contracted to provide.

[138] It was put to Mr Williams that on 16 May 2022 Ms Bowtell rang him about the Applicant working for his business. He agreed Ms Bowtell rang him. He said he did not recall telling Ms Bowtell that the Applicant approached him to engage her services. Mr Williams repeated that the Applicant’s role was to train his inspectors.

[139] The Respondent submits that the Applicant admits that her position with the Respondent gave her access to valuable confidential information, and she also admits that she approached Podium Partners. The Respondent submits that this same client had, prior to directly hiring the Applicant, been so happy with the Respondents services that he expanded to take out a second contract. But after hiring the Applicant, he sought to terminate both because (inter alia) it was cheaper to use “locally sourced services”.

[140] The Respondent submits that this demonstrates that its central submission is correct – the Applicant had access to valuable confidential information and client relationships, which puts temporary removal of her after-hours and external access into context.

[141] The Respondent submits that the Applicant’s submissions and evidence on this point are, however, unusual and worthy of note. The evolution of this issue as submitted by the Respondent is as follows:

(a) In the First Bowtell Statement, Ms Bowtell gave evidence that she had been told by a PMVA client that they had been directly approached by the Applicant to perform its work. We now know that this conversation was with Troy Williams of Podium Partners, and that Mr Williams does not deny that the conversation occurred as alleged.

(b) The Applicant responded to this evidence by stating that she did not “solicit” Mr Williams because he approached her. At [7(a)] of her Reply Statement she denied “soliciting” any PMVA clients, clarifying “Any client’s of PMVA that have engaged me personally following my departure at PMVA have been on their own accord”. Mr Williams provided a statement with similar effect. However as stated above, the Applicant orally admitted that she approached Mr Williams. Her statement is therefore incorrect.

(c) During cross-examination, when Mr Williams was directly asked whether the Applicant worked for his business (a matter omitted from his statement) he attempted to deflect the question by saying that she performed a different type of services. This was the first time this argument was put forward and, in any event, does not explain why Mr Williams had sworn that “Ms Hassan did not at any stage: - solicit me or Podium Partners when the Applicant’s own evidence is that this is what she did.

[142] The Respondent submits that in any event, no weight ought to be placed on Mr Williams’ evidence because:

(a) he did not deny making the prior inconsistent statement to Ms Bowtell regarding “solicitation”; and

(b) his statement omits to mention several important facts such that it ought not to be considered reliable. Specifically he:

(i) omitted to mention that the Applicant is working for Podium Partners (a matter also omitted from the Applicant’s statements);

(ii) omitted to mention that Podium Partners is seeking to terminate its contracts with PMVA;

(iii) omitted to explain why a reason for termination is “locally sourced services”, if that is not a reference to obtaining services from the Applicant instead of the Respondent; and

(iv) omitted to refer to the conversation between himself and Ms Bowtell regarding the Applicant on 16 May 2022.

[143] The Applicant submits that while it is accepted that she may have access to confidential information of the Respondent, she, under cross examination, confirmed that she could obtain the details of Mr Williams through Google.

[144] The Applicant submits that in the Respondent’s closing submission, they mentioned Mr Williams sought to terminate both of its service agreement with the Respondent because inter alia it was cheaper to use “locally sourced services”. The Applicant submits that the Respondent failed to note that, Mr Williams also sought to terminate both of its service agreement because “on continued volume performance issues as raised a number of times”.

[145] The Applicant submits that during cross-examination Mr Williams pointed out his “cost to serve report is cheaper delivered locally” was not a reference to contracting the Applicant. Mr Williams, to date, continues to remain engaged with the Respondent for its’ services provided under the respective agreements. Mr Williams also gave evidence that his request to terminate the service agreement is not related to its’ recent contract with the Applicant.

[146] The Applicant submits that further, the Respondent submitted that she had a conversation with Mr Williams via telephone, where Mr Williams allegedly made reference to the Applicant. Mr Williams during his oral evidence was unable to provide context to the discussion and as such could not support the Respondent’s evidence. The Respondent submitted in reply that Mr Williams was not “unable to provide context” as to his answers, he was unable to deny that he had given a prior inconsistent statement to Ms Bowtell because “I don’t recall the contents of the call”.

[147] The Applicant submits that Ms Bowtell in her oral evidence accepted that Mr Williams witness testimony did not corroborate her submissions that the Applicant had solicited Podium Partners. The Respondent submitted in reply that no significance arises from Ms Bowtell accepting that Mr Williams’ written statement was inconsistent with her own, especially considering that Ms Bowtell had not heard Mr Williams’ cross-examination.

[148] The Respondent submitted in reply that it is unclear exactly how the Applicant relies upon Mr William’s evidence, and in any event, in the interests of thoroughness, the Respondent replies that:

•  whether or not Mr Williams’ referred to other reasons for termination is not the point. The point is that one of his reasons appears to be that his company directly engaged the Applicant. This demonstrates the Respondent’s vulnerability to the Applicant taking its business;

•  Mr Williams’ denial ought not be accepted considering (a) no alternate explanation was offered in re-examination as to what “locally sourced services” referred to if it did not refer to the Applicant; (b) the selective nature of Mr Williams’ evidence as discussed in the Respondent’s earlier submissions concerning Mr Williams not denying making a prior inconsistent statement to Ms Bowtell concerning “solicitation”, and his statement omitting to mention the Applicant working at Podium Partners, that Podium Partners was seeking to terminate its contracts with the Respondent, and failing to explain why reason for termination is “locally sourced services” if that is not a reference to obtaining services from the Applicant instead of the Respondent, and not referring to the conversation between himself and Ms Bowtell about the Applicant on 16 May 2022.

[149] The Applicant accepted that Ms Bowtell had spoken to Mr Williams on 16 May 2022, and that Mr Williams told Ms Bowtell that she approached him about doing his work directly. The Applicant also accepted that she approached Mr Williams.

[150] The Applicant was also asked about a message on Facebook Messenger she sent to a person named “Ellie”. The Applicant accepted that ‘Ellie’ was a client of the Respondent. The Applicant said she was also a personal friend. The Applicant was also asked about a person named “Jess Jones” and she said that person was also someone she developed a friendship with and they were friends on Facebook outside of work.

[151] I have considered the evidence in relation to the issue of the allegation that the Applicant engaged in solicitation of Respondent’s clients. I accept that there would appear to have been some inconsistency in the evidence of Mr Williams and ultimately it seems more likely the case that he said to Ms Bowtell in the course of a discussion on 16 May that the Applicant had approached him.

[152] The evidence appears to be that the Applicant has been engaged by Podium Partners as a contractor earning $600 a week to conduct training of property inspectors. It is not clear on that basis of the evidence whether it is likely that the Applicant has breached the terms of the restraint clause in her employment contract with the Respondent, in relation to Podium Partners or the other entities referred to, or that she has used confidential information she had access to in the course of her work with the Respondent in breach of her employment contract.

[153] The matter before the Commission concerns whether the Applicant was unfairly dismissed. I have concluded not to afford the evidence in relation to the issues of alleged solicitation and use of confidential information any significant weight in relation to the determination of this matter given the state of the evidence.

[154] I have however considered the Respondent’s submissions that this evidence is relevant to its concerns about security of sensitive information in the context of the exchange on the afternoon of 27 April, and this is addressed further below.

Claim that Ms Bowtell was not motivated to fire the Applicant

[155] Ms Bowtell said in her second statement that she did not want to fire the Applicant but wanted to performance manager her. Ms Bowtell said property managers in the greater Brisbane area are in demand and hard to find and there are currently 700 jobs available for property managers in the greater Brisbane area. Ms Bowtell said the Applicant had eight years’ experience making her highly employable, and the Respondent only had three employees and firing the Applicant would remove a third of head office staff until a replacement could be found and it would remove a critical role.

Evidence of Mr Wootten

[156] Mr Wootten gave evidence that he was a previous employee of the Respondent and on 22 February 2021 he was engaged as a junior office administrator however he predominantly worked as an executive assistant to Ms Bowtell.

[157] Mr Wootten claimed that while he was employed, he witnessed Ms Bowtell’s mood and character as random and unpredictable. He claimed when Ms Bowtell was stressed, angry, tired, or simply busy, in his opinion Ms Bowtell’s interactions with employees were blunt, highly aggressive and condescending with a lack of compassion.

[158] Mr Wootten gave evidence about an event he said occurred on or around 3 March 2022 being within the first two weeks of his employment, he claimed to have witnessed Ms Bowtell yell, threaten and intimate a colleague named ‘Amanda’. It became apparent in the course of the hearing that references in Mr Wootten’s evidence to 2022 were in fact references to 2021.

[159] Mr Wootten claimed Ms Bowtell was particularly threatening in this alleged altercation, and while ‘Amanda’ was crying in the office, Ms Bowtell continued to yell and even advanced her physical position closer to ‘Amanda’ with a pointed finger screaming at her to give the bag (a handbag purchased as a gift by Ms Bowtell for ‘Amanda’ months prior) back before leaving and not coming back.

[160] Mr Wootten said on or around 25 May he arrived at work around 7:45am after witnessing a freak accident the night before in a volleyball game, where he witnessed a team member pass away from a head injury. Mr Wootten said that he felt that he was still in shock and was running on minimal sleep.

[161] Mr Wootten said a company meeting was scheduled for 9:00am with all employees and he arrived at the meeting at 9:05am and Ms Bowtell arrived at 9:07am. Mr Wootten said that the Applicant was sitting at her desk at the time and no other employees were in attendance.

[162] Mr Wootten claimed that on Ms Bowtell’s arrival she began yelling at him advising that it was his responsibility to be on time to meetings and coordinate the other employees if they were running late. Mr Wootten said he was shocked at this statement as he had not been informed previously about this obligation and that most employees were frequently late without any issue in the past. Mr Wootten said in this moment he felt extremely threatened and began to tear up, noting that he was already feeling anxious from what had happened in his personal life the night before.

[163] Mr Wootten claimed that he stated to Ms Bowtell “please stop yelling at me, I’m sorry, and I had a really terrible night where I witnessed someone die from a head injury”. Mr Wootten claimed that following this Ms Bowtell continued to aggressively yell at him not to let his personal “shit” interfere with work.

[164] Mr Wootten said that he attempted to continue his work following the altercation and within a few minutes Ms Bowtell approached him for a second time stating that it was his fault that the internet was not working and if he did not fix it, he “should leave”.

[165] Mr Wootten said he resigned from his employment due to Ms Bowtell’s ongoing aggressive and hostile behaviour. Mr Wootten said that since the altercation with Ms Bowtell he has attended five psychology sessions with a clinical psychologist to recover from the incident.

[166] Mr Wootten agreed in his oral evidence he worked for the Respondent for about three months about eighteen months ago. He agreed the Amanda he referred to was Amanda Cogzell. He was referred to a statement that had been filed by Ms Cogzell and that statement not referring to yelling and screaming or physical positioning or a bag and he agreed it did not. Mr Wootten maintained he remembered the incident clearly and it was shocking which is why it stands out in his memory. The Applicant ultimately did not call Ms Cogzell to give evidence as Ms Cogzell was unable to be contacted on the day of the hearing.

[167] It was put to Mr Wootten that his memory concerning the incident involving Ms Bowtell would have been affected as a result of the events he described including a lack of sleep. He disagreed his memory of the conversation was affected. It was put to Mr Wootten that he did not raise the fatal incident with Ms Bowtell and he said he only brought it to her attention once she was yelling at him.

[168] Ms Bowtell denied Mr Wootten’s evidence about her personality. Ms Bowtell said Ms Cogzell resigned and apart from her resignation nothing unusual happened in the discussion, and she went back to her desk and worked out her notice period.

[169] Ms Bowtell gave a different version of the incident concerning Ms Cogzell claiming she witnessed the Applicant yelling at Ms Cogzell about covering Ms Cogzell’s appointments. Ms Bowtell said she stepped in to diffuse the situation and asked Ms Cogzell to comply with a direction from the Applicant. Ms Bowtell said Ms Cogzell stood up from her desk and proceeded to pack all her belongings and said she would not stay at the company any longer.

[170] Ms Bowtell said that she recalled on 27 May 2021 Mr Wootten was late for work and she told him that he should not be late for work. Ms Bowtell said Mr Wootten did not tell her that he had witnessed someone die from a head injury. Ms Bowtell said Mr Wootten was also late for the daily huddle meeting on the morning of 25 May 2021 and she mentioned it to him at the time, and she denied his version of events.

[171] Ms Bowtell also denied Mr Wootten’s version of events concerning IT issues saying Mr Wootten had been asked to facilitate a tradesman to come and fix a problem with the internet and after the tradesman left Ms Bowtell said she asked Mr Wootten what the outcome was and he was unable to give an answer and instead banged his fists on the table saying “it’s not my job”. Mr Bowtell said she walked away from the situation as Mr Wootten was clearly elevated, and she did not understand his behaviour. Ms Bowtell said she now knows but did not know at the time that Mr Wootten had witnessed a death the previous night, and if she had known she would have suggested that he take the day off and would have given him any assistance needed.

[172] The Respondent submits that Mr Wootten’s evidence is of limited relevance in determining the events of 27 April 2022 and ought to be rejected because:

(a) Mr Wootten is not qualified to offer general opinions about Ms Bowtell’s personality;

(b) Mr Wootten’s description of the events surrounding Ms Cogzell’s departure is significantly different (and more dramatic) to that of Ms Cogzell herself, indicating that his evidence is not reliable;

(c) despite being part of the conversation with Ms Cogzell, the Applicant has not given evidence about her view of the interaction. The rule in Jones v Dunkel is therefore invoked;

(d) Mr Wootten accepted that witnessing a fatal accident, having minimal sleep and suffering psychological injury or distress would have affected his recall; and

(e) it is unlikely that any person, upon hearing that someone has just witnessed a fatal accident, would react in the disinterested way that Mr Wootten describes.

[173] The Respondent submits that further, Mr Wootten’s version of events was not put to Ms Bowtell in cross-examination.

[174] The Applicant submits that issues relating to credit, and in particular to the sworn testimonies of the parties are relevant. The Applicant submits that the witness statement of Mr Wootten specifically relates to the character and credibility of Ms Bowtell.

[175] The Applicant submits that Mr Wootten in his statement expresses how he viewed Ms Bowtell interact with her employees and how her behaviour, in his opinion was witnessed as “highly aggressive” and “random and unpredictable”. The Applicant says that Ms Bowtell submitted that Mr Wootten was not qualified to make such observations, however the Applicant submits that in her written correspondence to Ms Bowtell on 29 April 2022 at 1:30pm, she described Ms Bowtell has having “aggressive and unpredictable behaviour…which made it untenable for her to return to the office”.

[176] The Applicant submits that Ms Bowtell in her witness statement dated 12 July 2022 stated that the Applicant became “emotionally hysterical, crying and yelling”. Applicant submits that Ms Bowtell further alleged that she did not yell at the Applicant at all during the altercation, and simply described the altercation as a one-sided heated discussion with the Applicant.

[177] The Applicant submits that Ms Bowtell was questioned whether she had a heated alteration with the Applicant on 27 April 2022, however responded that it was a “disagreement”. The Applicant submits that Mr Wootten and the Applicant’s description of Ms Bowtell’s regular demeanour are quite consistent, and the Applicant’s evidence is therefore more reliable and ought to be preferred.

Conclusion on whether there was a dismissal at the initiative of the Respondent

[178] The central consideration in this matter is to arrive a conclusion on the balance of probability as to whose evidence should be preferred in relation to the events that occurred on the late afternoon of 27 April where there are no witnesses to the events other than the Applicant and Ms Bowtell.

[179] I make no finding and give no weight to the evidence in relation to the alleged exchange between Ms Bowtell and Ms Cogzell as she did not give evidence and the Applicant did not give evidence on the matter.

[180] Mr Wootten claimed that Ms Bowtell became visibly angry toward him when she formed the view that Mr Wootten has failed to perform his role appropriately. Ms Bowtell did respond to Mr Wootten’s witness statement of 26 July, and specifically his paragraphs 17 and 19 where he claimed that Ms Bowtell yelled at him. Ms Bowtell said in her 8 August reply statement that she denied his version of events. It is unfortunate that this matter was not explored whilst Ms Bowtell was available to be cross examined. Had I accepted this evidence it would have tended to make it more likely that the conflict in the evidence regarding who the aggressor was in the course of the exchange between the Applicant and Ms Bowtell on the afternoon of 27 April, was Ms Bowtell and not the Applicant as claimed by Ms Bowtell. However, as Ms Bowtell was not cross examined about whether she yelled at Mr Wootten, I have not reached a concluded view on the matter and have not afforded it any weight.

[181] There is no dispute that the Applicant was directed by Ms Bowtell on the afternoon of 27 April to hand over her swipe card allowing access to the work premises, she was directed to leave behind her company laptop, and her external access to e-mail was cut off shortly afterwards. Whilst it is possible that it is true that Ms Bowtell’s explanation for having to take these steps was that the Applicant had access to sensitive information, and it was necessary so the Applicant could cool off, on the balance of probability I have ultimately been more inclined to the view that this evidence tends to more support the Applicant’s version that in the course of the verbal exchange Ms Bowtell did tell the Applicant that she was fired.

[182] It would seem the combination of all three of these steps taken by Ms Bowtell would more likely point to a more serious situation then would be the case if the directions were to take the following day off to cool off as stated by Ms Bowtell. I have weighed the Respondent’s claimed security concerns and the evidence of all witnesses in relation to that matter, however I have not found the evidence of Mr Espineda and Ms Bowtell to be so persuasive that it would tip the balance in favour of the Respondent’s case that all of these measures would have been taken in the particular circumstances.

[183] I have also formed the view that it is likely the Applicant was being truthful about her recollection of events as she did not waiver under sustained cross examination by experienced counsel putting a range of challenges to her version of the exchange between Ms Bowtell and herself. The Applicant made concessions where appropriate and she did not appear seek to tailor her version of events to suit her case.

[184] It was Ms Bowtell’s evidence that as at the afternoon of 27 April she had formed the view that the Applicant had been lying to her, and also that she had “broken the trust she owed to her employer”. Given that evidence, it would seem somewhat more likely, in circumstances where it is common ground that there had been an exchange between the Applicant and Ms Bowtell that afternoon about those things, that Ms Bowtell had told the Applicant she was fired, rather than told her to have the following day off to “cool off”.

[185] The language that Ms Bowtell employed in describing her view that she had been lied to by the Applicant, tends more to suggest that Ms Bowtell had arrived at an adverse opinion about the character of the Applicant, which tends to suggest she would have been more inclined to terminate the relationship then to provide the Applicant a day to cool off.

[186] The Respondent said it was not put to Ms Bowtell during cross-examination that she yelled at the Applicant and therefore it cannot be submitted that Ms Bowtell’s evidence on this point is incorrect, per the rule in Browne v Dunne. Ms Bowtell was cross examined about whether there had a heated altercation and Ms Bowtell described it as a disagreement. Ms Bowtell’s evidence was that the Applicant became emotionally hysterical, crying and yelling. In the end, I have been satisfied that whether I conclude Ms Bowtell was actually yelling at the Applicant or not, is not ultimately determinative of whether I am satisfied that she told the Applicant she was fired, there is sufficient evidence on balance to conclude that Ms Bowtell did tell the Applicant she was fired without having to determine finally whether Ms Bowtell was yelling at the Applicant.

[187] The Applicant claimed that near the conclusion of the exchange on the afternoon of 27 April 2022 that Ms Bowtell said that she would be speaking to her lawyer after she had told the Applicant she was fired. Ms Bowtell did not contest that the told the Applicant that she would be speaking to her lawyer. The evidence of Ms Bowtell was the reason she told the Applicant that she would be speaking to her lawyer was because the Applicant had walked away from her before. It is more likely in my view that Ms Bowtell would have told the Applicant she would be speaking to her lawyer because she had dismissed the Applicant, not because she was displeased that the Applicant had walked away from her and had told her to have a day off.

[188] There is also a significant inconsistency in Ms Bowtell’s evidence around the timeline of events on the afternoon of 27 April. In her first statement, she claimed that the initial exchange between herself and the Applicant occurred at approximately 5pm when she was leaving the office. Ms Bowtell’s evidence indicated that the exchange would have been for no more than a few minutes before the Applicant stormed out of the office, and then “After a few minutes Ms Efstathiou returned to the office.”

[189] Later in her first statement she said that at 5.30pm, after approximately 10 minutes had passed since the Applicant had left the office, she telephoned the Applicant to confirm the arrangements for her not to be in the office the next day as she wanted her to “cool off”, however the Applicant did not return the call. It is now clear from the evidence this reference to the missed call to the Applicant was the call made by Ms Bowtell to the Applicant at 5.37pm.

[190] It seems at the time Ms Bowtell prepared the first statement she believed that the final time the Applicant left the office on that afternoon, after allegedly returning, was approximately 5.20pm.

[191] There is a significant time difference between the evidence placing the initial exchange at around 5pm and then the Applicant returning to the office a few minutes later, to her subsequent evidence claiming that the exchange was around 5.30pm and the Applicant returned to the office at 5.43pm. This inconsistency in Ms Bowtell’s recollection about times, as compared to the Applicant’s more consistent recollection in her evidence tends to favour the Applicant’s version being preferred.

[192] Whilst I understand, and have not ignored the submission for the Respondent that the Commission should prefer the evidence of Ms Bowtell on the basis that the language the Applicant used in the initial written communications with Ms Bowtell after the exchange did not include a reference to the Applicant having been fired, and this is only introduced the following day, I am inclined to the view that it is quite plausible that the Applicant was still somewhat traumatised by the exchange as she claimed, was processing what had occurred, and it was not until the following day that she had regathered her composure and could engage with Ms Bowtell about what had actually transpired.

[193] I am also persuaded by the evidence of Mr Efstathiou, which corroborates the Applicant’s evidence that she told her husband she had been fired in the course of a telephone conversation with him that occurred between them at approximately 5:34pm. Whilst it was suggested to Mr Efstathiou that his recollection could be clouded by the time between the events and the preparation of his statement, and he was also influenced by what his wife had said to him since that time, he was quite emphatic that he clearly remembered the conversation on the day itself, and I am inclined to accept his evidence.

[194] A further matter that tends to favour the Applicant’s case is Ms Bowtell’s evidence to the effect that it was only after the weekly training meeting, and from speaking to Filipino staff that she formed the view that the blueprints were not being used by the Applicant. Ms Bowtell’s evidence does not tend to support a view that what occurred at the meeting was of itself a logical basis for the Applicant to act in an unprovoked aggressive manner toward Ms Bowtell later that afternoon as Ms Bowtell claimed. There was some evidence that Ms Bowtell asked the Applicant some difficult questions at the meeting, which is supported in the evidence from Mr David, however there was no suggestion in the evidence that the Applicant was aware that the Ms Bowtell had been investigating the Applicant’s conduct after the meeting during the course of the afternoon. This does not tend to support Ms Bowtell’s claim that events at the meeting were a logical reason for the Applicant to initiate an unprovoked aggressive exchange with her.

[195] Ms Bowtell provided additional evidence during her oral evidence concerning what she described as the conduct of the Applicant when Ms Bowtell said the Applicant returned to the office including acting abnormally and acting erratically, scooping papers, opening drawers, touching papers, fiddling in the office, touching the desk and moving things around. Ms Bowtell was asked why she did not mention these things in her statement, and she said she did not know. Ms Bowtell also said during her oral evidence that she firstly asked the Applicant the question ‘What are you doing back in the office’ and the Applicant didn’t give an answer, and she froze, and then Ms Bowtell asked a second time ‘What are you doing here?’ and again, she claimed that the Applicant froze. Ms Bowtell said she did not know why she did not include this evidence in her earlier written material either.

[196] The Respondent submitted that this additional evidence was merely responsive to a question put to her however it would have been expected that this information would have been included in one of the three statements provided by Ms Bowtell in advance of the hearing considering it would have been relevant to a central issue in the case.

[197] Another matter that tends to favour the Applicant’s case over the Respondent’s, is the text message sent by Ms Bowtell at 11.42am on 28 April that read as follows:

“Good morning Kahlee

Yes that is correct. After the conflict incident in the office last night I feel that it is best that you take a day to reflect on your responses regarding your duties.

Your employment status is still ongoing.

You will be required to be back at work tomorrow, being 29^th April at 9am. You can call me and I will let you in from the carpark.

Please acknowledge receipt of this email.

Regards”

[198] I am inclined to agree with the Applicant’s submission that this email is important evidence in its favour. The words Ms Bowtell included in the email sent to the Applicant the next day saying “Your employment status is still ongoing” were really unnecessary if it is true that Ms Bowtell told the Applicant to have the following day to “cool off”. This tends to also favour the Applicant’s version.

[199] That leaves the issue of the key fob reports and the claim by Ms Bowtell that they support her claim that the Applicant did return to the office at 5:43pm. There is a plausible alternative explanation for the key fob report containing an entry at 5:43pm using a key fob that it appears the Applicant held at the time of the exchange which I have concluded occurred at approximately 5.30pm. If in fact the various property that it is common ground were returned by the Applicant to Ms Bowtell on the afternoon were returned at the time the Applicant claims, and not after 5:43pm as claimed by Ms Bowtell, then Ms Bowtell would have had within her possession at 5:43pm the relevant key fob and not the Applicant. If that is correct, it is quite plausible that it was Ms Bowtell who used the key fob at 5:43pm to enter lift 2 and return upstairs to the office.

[200] This scenario fits with the time the Applicant says she left the building for the last time around 5.30pm, and is plausible in the context of the text message that Ms Bowtell sent at 5:38pm to a friend saying “Just leaving the city now. I’ll be back just in time.” If in fact Ms Bowtell did leave the office just after 5:38pm as her text indicated she intended to do, and had she then returned to the office for some reason, for example that she had forgotten some item, or to do something, then she had the relevant key fob in her possession as she would have been handed the key fob by the Applicant at around 5.30pm.

[201] Ms Bowtell’s evidence was that she was intending to be at a birthday function at “Gallopers” at Ascot by 6:10pm, and on either version she had just been involved in an unpleasant exchange with the Applicant. Both the timeframe of wanting to be at Ascot by 6:10pm, and the unpleasant exchange, are ingredients that may make it plausible that she may have forgotten to complete some task or to have left behind some item she intended to take with her before leaving the building just after 5:38pm to get to a function at Ascot.

[202] It is also clear from the evidence that Ms Bowtell contacted Mr Espineda at 6:10pm to direct him to disable the Applicant’s external access. The evidence of Ms Bowtell and Mr Espineda did not indicate whether she did this from the office or somewhere else such as from the function at Ascot. Mr Espineda said he received this instruction from Ms Bowtell via messenger which he received on his mobile phone. Ms Bowtell and Mr Espineda provided the relevant skype messages with their evidence.

[203] Considering the evidence overall it is quite plausible that it was Ms Bowtell who returned to the office via lift 2 at 5:43pm and not the Applicant, and this would explain the evidence from the Secretary of the Body Corporate concerning lift entry times. There was some evidence to the effect that the key fobs that Ms Bowtell and the Applicant had were similar in appearance to each other as they had touch pads unlike the other key fobs.

[204] I am inclined to accept the timeline of events that places the Applicant leaving the office for the last time just after 5.30pm and not returning at 5.43pm as Ms Bowtell claimed. Whilst I do not express the following as a firm conclusion, I make the observation that it is quite plausible that Ms Bowtell called the Applicant at 5.37pm with the intent of proposing to the Applicant that she have the day off as an alternative to proceeding along the lines of her earlier communication to the Applicant that she had been ‘fired’. If that is correct, the opportunity to have such a conversation, would have been thwarted when the Applicant did not take the call at 5.37pm.

[205] I have taken into account Ms Bowtell’s evidence that she said she did not want to fire the Applicant, and her evidence that it would create difficulties for the Respondent, however when weighed against all of the other evidence this did not persuade me to favour the Respondent’s case.

[206] For all of the above reasons, I am satisfied that Ms Bowtell did tell the Applicant that she was fired in the course of their exchange of 27 April. The Respondent appropriately conceded that if I were to make such a finding that this would be a case of termination of employment at the initiative of the employer. I am satisfied based on the evidence that the Applicant was dismissed by the Respondent.

Small Business Fair Dismissal Code

[207] Section 388 of the Act provides for the Small Business Fair Dismissal Code. In its reply submission the Respondent also made the appropriate concession that it is accepted that if a dismissal occurred as alleged, the “small business dismissal code” was not complied with, and was therefore irrelevant to the proceedings. I agree with the Respondent’s submissions that on the basis of the evidence the Respondent did not comply with the Small Business Fair Dismissal Code and on that basis intend to proceed to address the considerations in section 387.

Harsh, Unjust or Unreasonable

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

[208] None of the Respondent’s submissions filed before or after the hearing have sought to engage with the requires of section 387 in any substantive way. The Respondent’s submissions in the event that the Commission were to find that the Applicant was dismissed have instead been directed to the Applicant’s alleged failure to mitigate her loss. The Commission is still however required to deal with the considerations in section 387.

[209] A valid reason was described in Selvachandran v Petron Plastics Pty Ltd 14 as one which is “…sound defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based on the operational requirements of the employer’s business.”

[210] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination. “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 15

[211] The Respondent has not submitted any particular reason was a valid reason for dismissal. The reason for termination arising from the evidence appears to be that Ms Bowtell objected to the Applicant not continuing to engage with her in the course of the exchange between them. For the reasons set out above, I have ultimately concluded to prefer the Applicant’s version of events and on that basis am not satisfied that any conduct on the part of the Applicant in that regard was a valid reason for dismissal.

[212] Other issues that could have potentially been issues raised as reasons for dismissal in relation to the Applicant’s capacity or conduct could have been issues in relation to the blueprints or in relation to the alleged solicitation or alleged use of confidential information. Prior to 27 April 2022, the Applicant and Ms Bowtell had a good working relationship as well as a personal relationship outside of work. There was no evidence that there was an issue concerning the Applicant’s conduct or performance before 27 April 2022.

[213] The evidence of Mr David and Ms Bowtell was that the Applicant had been advising staff to follow a process that was inconsistent with the Respondent’s policy and the client implementation process was behind because of this. The Applicant’s evidence was that she was following a process that she had always followed. Ms Bowtell formed a view that the Applicant had been dishonest with her about this issue. The Applicant denied this. There is insufficient evidence before the Commission to establish that the Applicant had been dishonest in relation to the blueprints issue. The Applicant was not cross examined about the issue. Presumably the issue would have been further explored had the Respondent not maintained the Applicant had resigned.

[214] The Respondent relied on the issues in relation to solicitation for the purpose of supporting its claim that Ms Bowtell was concerned about the security of confidential information as a rationale for telling the Applicant to leave her computer, security pass and for stopping her access to the IT network. To the extent there is any evidence in relation to the solicitation issue, it mainly pertains to a time after the termination occurred, and as set out above I have concluded not to award any particular weight to the evidence in relation to the allegations themselves. On that basis it follows that there is insufficient evidence to support a conclusion that those issues could be a valid reason for dismissal. I have arrived at the same conclusion in relation to the alleged used of confidential information. In all the circumstances, I find that there was no valid reason related to the Applicant’s capacity or conduct.

Was the Applicant notified of the valid reason?

[215] Proper consideration of s.387(b) requires a finding to be made as to whether the Applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a). 16 As I am not satisfied that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

[216] As I have not found that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

[217] I have concluded the Applicant was dismissed without notice or foreshadowed discussions relating to dismissal. In the circumstances there was no opportunity to request a support person be present to assist in discussions relating to the dismissal.

Was the Applicant warned about unsatisfactory performance before the dismissal?

[218] It would appear the dismissal did not relate to unsatisfactory performance, but to the Applicant’s conduct in seeking to walk away from the exchange. To the extent that it might be considered that any aspect of the termination was related to performance, there is no evidence of the Applicant having received a warning about performance.

The degree to which the size of the employer’s enterprise, and the absence of dedicated human resource management would be likely to impact on the procedures followed

[219] Having regard to the employer’s enterprise being a small business, and not having dedicated human resource management, in the circumstances, I find that these factors would have been likely to have an impact on how the events of 27 April 2022 and they days following unfolded. Had the Respondent been a larger organisation with internal expertise in such matters it is likely a procedure would have existed to adopt.

What other matters are relevant?

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

[221] No doubt the particular manner in which the termination occurred would have been distressing for the Applicant, including that it occurred without notice. This has placed the Applicant in a position where the Applicant was required to seek new employment with no notice.

Conclusion on Harsh, Unjust or Unreasonable

[222] I have made findings in relation to each matter specified in section 387 as relevant. I have concluded there was not a valid reason for dismissal, and the process was procedurally unfair. I am satisfied that the dismissal of the Applicant was harsh, unjust and unreasonable. I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Act.

Remedy

[223] The Applicant had submitted that reinstatement would not be appropriate. In considering all of the circumstances of this case, including that the Applicant does not seek reinstatement, I am satisfied reinstatement would not be appropriate.

[224] I am satisfied based on the evidence that an order for compensation is appropriate. I must now determine an appropriate amount. I intend to adopt the approach in Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21 where the method of calculating compensation involved the following steps:

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.

[225] The Applicant has been employed with the Respondent for just less than two years and appears to have been employed without incident until her dismissal. The Applicant submits that the Respondent made contradictory submissions in respect to the Applicant’s future. The Applicant submits that the Respondent in their closing submissions made an assumption that the Applicant would not have remained at the Respondent for more than a period of three months, owing to Ms Bowtell’s “conduct and behaviour’ and the Applicant “routinely ignoring a significant instruction”.

[226] The Applicant submits however, Ms Bowtell stated “[the Applicant] and I had had previous arguments in history before, and they had usually resolved themselves very quickly”. The Applicant submits it is obvious that the Applicant was conscious of Ms Bowtell’s temperament during the two years of the employment and was willing to accept the same. The parties clearly had disagreements at times and had no issues in resolving them up until the dismissal. Further, Ms Bowtell expressed that she had intended to “performance manage [the Applicant]” following the alleged incident involving the blueprints.

[227] The Applicant submitted that the parties had engaged in multiple discussions in respect of the future of the company and she intended to remain for a significant amount of time. The Applicant therefore submits that the Commission ought to find that the Applicant would have remained at the Company for a minimum of six months. The Applicant also sought compensation for outstanding commissions.

[228] The Respondent submitted in reply that the Applicant cannot on one hand allege that Ms Bowtell is “aggressive and unpredictable”, but on the other submit that “but for” the dismissal, the employment relationship would have continued harmoniously. The Respondent submits that its submissions on this point are not inconsistent – it is an alternative argument being advanced to address the possibility of the Applicant’s position being accepted.

[229] The Respondent submits that the Applicant’s evidence suggests that even if a dismissal had not occurred on 27 April 2022, then the relationship would have broken down in the near future. The Respondent said the Applicant had just been found to have been routinely ignoring a significant instruction and encouraging others to do the same. At the time her total length of service was under two years, such that the Commission ought to not consider that the relationship would have lasted beyond another three months, less her actual mitigation of $15,600.

[230] I have concluded that evidence tends to indicate that the relationship was becoming troubled. Both the Applicant and Ms Bowtell referred to an earlier incident before 27 April where she claimed the Applicant had walked away from her. Further, it is apparent some damage had been done to the level of trust as between Ms Bowtell and the Applicant in relation to the blueprints issue. This points to a likelihood the employment relationship may not have lasted for an extended period given Ms Bowtell did not believe the Applicant had been truthful about the blueprints issue.

[231] The Respondent’s alternative submission in the event the Applicant was found to have been unfairly dismissed and its proposed figure of three weeks was rejected by the Commission, is that the Applicant should receive compensation in the amount of three (3) months wages less actual mitigation of $15,600.00. This is because the Applicant filed a considerable amount of evidence alleging that the Respondent was, generally speaking, a bad employer and her supervisor was an unreasonable person. The Respondent submits that if the Applicant wishes to make this submission on the issue of liability, then the same matters ought to be taken into account when determining the estimated total length of employment.

[232] I do not intend to include any assessments of amounts of compensation for commissions, with for claimed outstanding amounts of projected future commissions. There was insufficient evidence to make any reasonable estimate of compensation in relation to this issue.

[233] Estimating the likely period of time that the employment relationship would have survived involves an element of conjecture. Having weighed the competing arguments, including some deterioration in the relationship between the Applicant and Ms Bowtell inside such a small organisation and also that fact of the employment relationship not being particularly lengthy, against the prospect that they may have been able to patch up their differences, I estimate that the Applicant would have been likely to remain employed if not for the termination for another 16 weeks.

[234] The Applicant submitted that she received the sum of $3,461.54 gross pay, fortnightly. The Applicant submits she would have received the sum of $45,000.02 gross pay within a six (6) month period had the Applicant not been dismissed. The Applicant has mitigated her loss and obtained employment on a casual basis, which the Applicant submitted was equal to the sum of $15,600 for a six (6) month period.

[235] Putting aside the final compensation figure, based on the Respondent’s calculations of $5,192.30 being equal to three weeks wages and the Applicant’s figure of $3,461.54 as the gross fortnightly pay, I have calculated one week’s wages as being equal to $1,730.77. $1,730.77 multiplied by 16 equals $27,692.32 had the Applicant remained in employment up until the week ending Friday 19 August.

STEP 2: Deduct money’s earned since termination. Failure to mitigate loss may lead to a reduction in the amount of compensation awarded

[236] The Applicant submits she has made successful attempts to mitigate her loss by engaging in contractual work, earning approximately $600.00 per week since 17 May 2022 until the current day.

[237] The Applicant submits that it is also noteworthy, the Respondent and Ms Bowtell’s partner, namely Mr Neumann continues to threaten legal action against the Applicant to preclude her from being employed in related businesses.

[238] It is submitted for the Applicant that she is cautious of finding further employment as: -

(a) she has extensive experience in real estate;

(b) she is only capable of finding other employment opportunity that may mean that is likely to be in competition with the business carried on by the Respondent; and

(c) the Respondent, through its’ solicitors, has clearly indicated that it intends to litigate in separate proceedings to restrain the Applicant from being concerned or interested or employed in a company that is in the competing business.

[239] It is submitted for the Applicant, therefore, she is unlikely to obtain another employment within her qualifications.

[240] The Respondent submitted in reply that the Applicant was only prohibited from working with a select group of specific competitors and was not prevented from working in the real estate industry generally.

[241] The Respondent submitted that the Applicant’s submissions regarding the reasons she gave as to why she is cautious of finding further employment does not reflect the Applicant’s evidence.

[242] The Respondent submitted that the Applicant did not give evidence that she had not sought employment because she was only capable of finding other employment opportunity that may be likely to be in competition with the Respondent, and this is not consistent with her CV.

[243] The Respondent submitted that the Applicant did not say that her failure to seek alternate employment was out of fear for legal action, which is unsurprising considering that she is currently working for a former client which the Respondent submitted is in apparent contravention of her restraints.

[244] The Respondent submitted that the Applicant’s actual evidence was effectively that she had not applied for work because she did not want to. The Respondent submitted that the Applicant has a valuable skill set for which a large number of jobs are available, and which do not conflict with her restraint of trade clause. Yet she has not attempted to find employment beyond a single job application with a direct competitor.

[245] The Respondent submits that the law in relation to mitigation is summarised in Biviano v Suji Kim Collection, PR915963 (AIRCFB, Ross VP, O'Callaghan SDP, Foggo C, 28 March 2002) from [34] onwards and refers to the passage at [34]-[37]:

“In Lockwood Security Products Pty Limited v Sulocki (Sulocki) a Full Bench of the Commission decided that the "primary question" in applying paragraph 170CH(2)(d) is whether the applicant has "acted reasonably". In that context the Commission cited Westen v Union des Assurances de Paris with approval. In that matter Madgwick J said: "[t]he party claiming damages need only act reasonably".

The question of what steps were reasonable in the mitigation of loss is a question of fact to be determined having regard to the particular circumstances. The common law principles regarding mitigation may be of some assistance in applying paragraph 170CH(2)(d).

At common law a plaintiff is expected to take reasonable steps to minimise the effect of a breach of contract. As Lord Haldane said in British Westinghouse Electric and Manufacturing Co. v Underground Electric Railways Co. of London:

“The fundamental basis is thus compensation for pecuniary loss flowing from the breach; but this first principle is qualified by a second, which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps.”

[246] The Applicant accepted in the course of her oral evidence that her previous employment before working with the Respondent was with Coronis Realty and agreed she was the team leader of a portfolio of 600 managements. The Applicant agreed that prior to that she worked at Welcome Residential, and before that for Ray White at Ascot.

[247] The Applicant agreed that the only job she had applied for was Staff Link. The Applicant agreed she has work with Podium Partners. The Applicant said she was engaged as a contractor, and it was not fulltime.

[248] I asked the Applicant what employment she had sought other than Staff Link. The Applicant said she was put forward for a role with a software company called Look it Over, but had not applied for any other work.

[249] The Respondent submits that the only effort that the Applicant appears to have made for mitigation is in relation to one job application in early May 2022. The Respondent submits that while she refers to the restraint of trade as preventing her from obtaining employment, the restraint does not apply to the entire real estate industry, and the Applicant has extensive experience in this field, and there are a large number of jobs available. The Respondent submitted that when it was put to the Applicant that she could apply for jobs of this type she responded: “I could apply for a job as a fireman, but it doesn’t mean that I’m going to”.

[250] The Respondent submits that the Applicant did not discharge her duty of mitigation, and accordingly the Respondent submits that damages ought to be limited to three (3) weeks. This is because it appears that the Applicant commenced with Podium Partners on or about 16 May 2022 (being three weeks after her employment ended), suggesting that this is roughly the length of time it would take to locate work had she been properly looking for it. If the Commission concludes that damages for a longer period ought to be awarded, then (as accepted by the Applicant) the actual mitigation of the Applicant’s loss would need to be taken into account.

[251] The Respondent notes that the Applicant has not provided detailed or updated amounts in respect of mitigation beyond the figure of $15,600.00 provided at her Outline of Submissions, presumably filed on 26 July 2022 and so, relating to mitigation up to that date.

[252] The Applicant said in her reply statement that she denied failing to mitigate her loss. The Applicant said she applied for an alternative role through a recruitment agency known as Iconic Recruit on 3 May 2022, and she received confirmation from an employee of Iconic Recruit in respect of two potential roles emailed to her personal email account on 4 May 2022.

[253] It is apparent from the Applicant’s submissions that the reference to a figure of $15,600 is derived from multiplying $600 per week by 26 weeks.

[254] As I have estimated that the Applicant would have remained in employment for a period of a further approximately 16 weeks had she not been dismissed it is appropriate to deduct amounts earned by the Applicant from employment or other work (including contracting) during the period between the dismissal and the order for compensation in accordance with section 392(2)(e).

[255] The Applicant first earned income in the week of 16 May 2022. There are 14 weeks in the period from 16 May to 19 August. $600 multiplied by 14 equals $8,400. $8,400 subtracted from $27,692.32 equals $19,292.32.

[256] I am also satisfied it is appropriate to make a further reduction to the amount of compensation ordered on the basis of the Applicant’s failure to take reasonable steps to mitigate her loss. Whilst it is true the Applicant has obtained some income from contracting work within a short period of time after her termination in the amount of $600 a week, this is just over a third of her weekly earnings at the Respondent of $1,730.77.

[257] The Respondent was correct in saying that the contractual restraints in her employment contract did not prevent her from working in the real estate industry generally, and the restraint in the employment contract was directed to working for employers competing with the Respondent in its particular field in the real estate process outsourcing industry.

[258] It is also apparent from the Applicant’s extensive history and experience in the real estate industry, and the evidence concerning the available positions in the industry at the relevant time, that in all likelihood the Applicant could have obtained employment where she would have been earning more than $600 per week. I have rejected the primary reason given by the Applicant as to why she has made limited efforts to find other employment in the industry where she has significant experience, being the restraint clause. It appears that the Applicant has decided of her own volition to reduce the amount of time she has spent working, and has elected to work less than full time hours as a contractor training inspectors in the real estate industry.

[259] Whilst there is a degree of conjecture about what would have happened had the Applicant made more of an effort to obtain a greater amount of working time, it seems likely she could have had she chosen to. It is equally not the case that the Applicant has taken no steps to mitigate her loss as set out above. I am satisfied a further reduction in the amount of compensation of two weeks strikes an appropriate balance between recognising that the Applicant could have exercised a greater effort to mitigate her loss, however has also not entirely sat on her hands. $1730.77 multiplied by two equals $3,461.54. $19,292.32 minus $3,461.54 equals $15,830.78.

STEP 3: The Remaining Amount of Compensation is discounted for contingencies

[260] I do not intend to make any further deductions on account of contingencies. The date for which I have estimated the employment relationship would have continued if the Applicant has not been dismissed has passed at the time of the issuing of this decision.

STEP 4: The Impact of Taxation

[261] I do not intend to calculate the impact of taxation and intend to issue an order for a gross sum taxed according to law.

STEP 5: Legislative Cap

[262] The amount of $15,830.78 does not exceed the legislative cap.

Other Matters

[263] There was no evidence that an order that the Respondent pay to the Applicant the sum of $15,830.78 gross taxed according to law will affect the viability of the Respondent. There are no other matters I consider relevant.

Conclusion on Remedy

[264] I have determined that the Respondent should pay to the Applicant the amount of $15,830.78 gross taxed according to law and 10% superannuation contribution on that amount into Ms Efstathiou’s nominated superannuation fund within 21 days of the date of this decision. A separate order giving effect to this decision will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR747553>

Appearances:

Mr Lawrence Kong of Phoenix Law & Associates for the Applicant.

Mr Stephen Mackie of counsel instructed by HR Law for the Respondent.

Hearing details:

2022
Brisbane (by Video on Microsoft Teams)
15 September.

 1   Transcript PN 81.

 2   Exhibit 1.

 3   Exhibit 2.

 4   Exhibit 3.

 5   Exhibit 4.

 6   Exhibit 5.

 7   Exhibit 6.

 8   Exhibit 7.

 9   Exhibit 8.

 10   Exhibit 9.

 11   Exhibit 10.

 12   Exhibit 11.

 13   Transcript at PN 382.

 14   (1995) 62 IR 371 at 373.

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

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