DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Geena Kordek
v
Marsh Pty Ltd
(U2020/10422)

Termination of employment – application for reinstatement as a remedy for unfair dismissal – Technical Consultant in insurance industry – highly qualified and well educated employee – applicant alleges bullying and harassment by manager – external investigation – numerous allegations and complaints found to be unsubstantiated – applicant dismissed for breach of trust and confidence and that her conduct was a risk to the health and safety of other employees – failure to cooperate with Team or comply with management directions – applicant claims she is the victim of bullying and harassment – applicant’s evidence not believable – applicant not a credible witness – stress and anxiety of managers who had difficulty in managing the applicant – applicant refuses to acknowledge any wrongdoing – applicant insists she is a cooperative and valuable employee who is always willing to undertake her role and accept directions – applicant refused to accept investigator’s report – claims of bias and unfairness and failure of respondent to address her reasonable concerns – valid reason for dismissal – applicant claimed no warning of dismissal or opportunity to address reasons for dismissal – no remorse or contrition – procedural fault and mitigation issues do not outweigh applicant’s misconduct – all s 387 matters weighed and taken into account – applicant’s conduct was in breach of the trust and confidence in the employment relationship and put at risk the health and safety of other employees – dismissal not harsh, unjust or unreasonable – reinstatement would otherwise be untenable, inappropriate and unthinkable – application dismissed.

BACKGROUND

[1] Ms Geena Kordek (the ‘applicant’) commenced employment with Marsh Pty Ltd (‘Marsh’ or the ‘respondent’) on 4 February 2019 in the position of Technical Consultant in the respondent’s Technical Services Team consisting of three Technical Consultants, reporting to the Manager – Technical Services. The applicant was employed under the terms of a written contract and the Finance, Banking and Insurance Award 2010 (the ‘Award’) on a salary of $136,000 plus superannuation. The respondent is an insurance company providing insurance, reinsurance and brokerage services across Australia. It employs approximately 1250 employees. The applicant was dismissed on 31 July 2020, with immediate effect, in it was said that the respondent had lost trust and confidence in her ability to perform her role which had posed a health and safety risk to her work colleagues. She was paid four weeks in lieu of notice.

[2] Shortly stated, the genesis of the applicant’s dismissal arose in late 2019 when the applicant’s supervisor, Ms Isabel Tran (Manager – Technical Services), raised concerns in respect to the applicant’s performance and the hostile and aggressive manner the applicant engaged with her. Seemingly, in response, the applicant made allegations of improper conduct by Ms Tran on 31 January 2020 which, when escalated to the HR Team, resulted in a solicitor’s letter of 13 February 2020 repeating and expanding on the allegations against Ms Tran and its effect on the applicant. As a consequence, the respondent engaged the services of Worklogic to investigate the applicant’s allegations. In a detailed and lengthy report of Ms Melanie Roberts dated 9 July 2020, it was found that none of the applicant’s 14 allegations and/or 6 complaints were substantiated.

[3] During the same period, the applicant lodged a whistleblower complaint, essentially about the same matters, which was investigated by the respondent’s Chief Compliance Officer, Ms Nicole Maude, and also found to be unsubstantiated. Following the findings of both Ms Roberts’ report and Ms Maude’s report, a meeting was held with the applicant on 31 July 2020 at the conclusion of which she was dismissed. The letter formalising the applicant’s dismissal dated 31 July 2020 reads:

‘Dear Geena

Re: Termination of employment

As you know, you commenced employment with Marsh on 4 February 2019 in the role of Technical Consultant.

Since your commencement of employment, your managers and colleagues have raised issues with respect to the manner in which you engage with Internal stakeholders. These Issues have become more pronounced since November 2019 and prompted your manager to raise concerns with you in December 2019. Despite doing so, your manner of engagement with colleagues has continued to be hostile. These issues have also been highlighted in the recent external investigation undertaken to consider allegations that you raised against your immediate manager. What has been revealed in the investigation undertaken is that a significant number of your managers and co-workers feel uncomfortable working with you given the hostile manner in which you engage with them.

As you know, pursuant to its Code of Conduct, Marsh requires all employees to interact professionally and respectfully with both internal and external stakeholders. Unfortunately, the company has determined that the manner in which you engage with your colleagues is contrary to its Code of Conduct and, therefore, poses a health and safety risk to your colleagues.

As a result, Marsh has lost trust and confidence in your ability to perform your role as a Technical Consultant given that it is a role which requires a significant level of interaction with internal stakeholders.

Based on my assessment that you engage with work colleagues in an inappropriate manner, resulting in a breakdown of the employment relationship, I have made the decision to terminate your employment with immediate effect.

Pursuant to the terms of your letter of appointment dated 2 January 2019, you will be provided with an immediate payment of four weeks in lieu of notice of termination along with all outstanding salary and leave entitlements owing to you.

Kindly return all company property in your possession including mobile phone, lap top computer, security pass, intellectual property, confidential information and other company materials (electronic and hard copy).

I understand that the company's decision may be difficult for you and I urge you to seek support from Marsh's confidential Employee Assistance Program.

Please contact me should you have any questions with respect to the above.

Yours sincerely

Peter Normand’

[4] On the same day (31 July 2020), the applicant filed an application for reinstatement as an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). Relevantly, the applicant was aware of the reasons for her dismissal when she described in her Form F2 the reasons why her dismissal was unfair, as follows:

‘I invited to a meeting to discuss the outcome of a whistleblowing complaint and a bullying complaint that was being investigated between Feb 2020 and July 2020. At the meeting I was told that the company did not agree my complaints were substantiated, and that they were dismissing me because of 'interactions between myself and other colleagues in December 2019'. I am not aware of the substance of these 'interactions' or what this referred to. I do not recall anything being said to me about this in December 2019 and I was not given any formal warning or opportunity to respond. I asked for more information about why I was being dismissed today and was told no I would just be sent my dismissal letter’.

[5] In accordance with my usual practice, I convened a conciliation of the applicant’s claim on 9 September 2020, but given her resolute determination to pursue reinstatement only, settlement of the matter proved difficult. Directions had been issued for a hearing of the matter on 21 and 22 October 2020 (with a third day becoming necessary on 12 November 2020). Given the conflicting evidence of the parties, I decided to conduct an in-person hearing according to the NSW Health guidelines to the Courts for such hearings. In the meantime, there were a number of interlocutory phone hearings dealing with Notices to Produce filed by the applicant, particularly in respect to the full report of Ms Roberts, and a Notice to Attend directed to Ms Roberts. I also note that at various stages in the hearing, the transcript and relevant evidence going to the whistleblower complaint was ordered by me to be confidential.

[6] At the hearing, despite being earlier represented by lawyers, Mr Chris McArdle of McArdle Legal, then Mr Lachlan Daly of the Finance Sector Union, and then Mr Sean Howe, Turner Freeman Lawyers, the applicant represented herself, noting that she is herself legally trained. Ms K Lopes, Partner, and Ms K Sullivan, Solicitor, Colin Biggers & Paisley Lawyers, instructed by Ms T Drakes, appeared for the respondent with permission being granted for the respondent to be represented by a lawyer, pursuant to s 596 of the Act.

Case for the respondent

[7] The respondent relied on the statement evidence of Mr Peter Normand, Human Resources Leader and Ms Tanya Rea, Senior Vice President Business Strategy Manager. Ms Melanie Roberts, Investigator, Worklogic, gave evidence in response to a Notice to Attend.

Mr Peter Normand

[8] Mr Normand has been employed by Marsh for six and a half years. The team of Human Resource Business Partners report directly to him. Ms Tarnia Drakes, who is based in Melbourne, is the Human Resources Business Partner for three lines of business, including the Technical Services Team.

[9] Mr Normand said that on 31 January 2020, Ms Drakes contacted him to advise that she had received an email sent to Ms Tran from the applicant raising allegations of workplace bullying against Ms Tran. The applicant had also contacted Ms Drakes on 6 February 2020. In part, the applicant alleged:

‘Over six months ago, I asked for you to provide your expectations in writing to me.

To date, you have not provided your expectations to me.

In order for me to continue to perform at my current high level, I need to know that I have healthy, professional support from you as my manager.

For this to occur, all behaviours by you towards me that are inappropriate, excluding, aggressive, pressuring, or unreasonable will need to stop immediately.’

Ms Tran’s email to Ms Drakes read:

‘Tanya, Tarnia

I felt the need to state this in writing. This email claims that Geena wants to want to work with me but it makes a whole series of claims that amongst other things, I am behaving aggressively towards her, preventing her from working properly and unethically.

Even though the email talks about working together in the future, the fact that it contains totally false claims about me causes me to have doubts about its sincerity. This is also in the context where my last email following a team meeting congratulating Geena, caused her to complain that this was offensive.

I am at a loss as to how to proceed and am highly concerned as you would expect.

Can the matter be escalated please.

Isabel’

[10] Mr Normand was informed by Ms Drakes on 13 February 2020 that the applicant’s then solicitor, Mr McArdle, had written to the respondent setting out a number of allegations of workplace bullying against Ms Tran, dating back to her first day of employment. The letter foreshadowed a stop bullying application being filed in the Commission and proposed an investigation into the applicant’s complaints, interim arrangements in respect to meetings and advising that the applicant had been sporadically unwell as a result of Ms Tran’s actions.

[11] Mr Normand directed the following actions be taken:

(a) the applicant to report to Ms Rea pending the outcome of an investigation into the allegations raised;

(b) the relocation of Ms Tran to another floor of the office to minimise the interaction between Ms Drakes and Ms Tran; and

(c) the engagement of Worklogic to conduct an investigation into the allegations raised by the applicant;

(d) the engagement of Colin Biggers & Paisley to respond to the applicant's solicitor.

McArdle Legal ceased to act for the applicant on 5 March 2020.

[12] On 4 March 2020, the applicant made further allegations and claims in an email to the respondent’s lawyers and Ms Rea. It reads:

‘Hello Kristen and MMC colleagues

In the 5 work days, I have had less than 3 hours of work to do and this having significant negative impacts on my health:

•  On 18 Feb 20 and 28 Feb 20, I informed Isabel Tran/Tanya Rea that I had capacity for work.

•  Since 18 Feb 20, I have been given 2 tasks by Isabel Tran that have taken me less than 1 hour to complete. In the last 3 work days, I have been given approximately 1 minute of work.

•  A Technical Services Team Lunch & Learn training session was held on 3 Mar 20. I was completely excluded from this, unlike last year when I was heavily involved in the running of such events - along with all other colleagues in the Technical Services Team.

•  Since 18 Feb 20, Isabel Tran has assigned work to external paid consultants. I estimate the fees for this external work will cost MMC upwards of several thousand dollars. I could have been doing this work, but I have been left idle (being upwards of a thousand dollars in lost productivity).

•  On 27 Feb 20, I requested approval for previously agreed training totalling $770 for 10 weeks of training, but I have been informed that approval is pending a budget decision.

•  On 2 Mar 20, I approached another team for work and I did a mid-sized task for that team.

•  I feel that I am being iced-out of the Technical Services Team. It was humiliating to have to ask for work from another team. The current situation is abusive to me and there is no indication that it will end.

Tanya Rea has said that I am permitted to take tomorrow afternoon off, following the Work Logic meeting.

As MMC has been unable to adequately manage risks to my health and wellbeing following my complaint, I request that MMC grant me paid time off (on 100% salary and benefits), starting at the end of my meeting with Work Logic on Thursday, 5 Mar 20, and ending with MMC's response to Work Logic's findings (unless a different time is mutually agreed).’

[13] In response, Ms Lopes wrote to the applicant requesting a medical certificate for the applicant’s proposed time off. The applicant response was ‘I am very unwell (complaint related). Kristen, stop your discrimination and harassment immediately, it is a significant risk to my health’.

[14] On 26 March 2020, the applicant claimed Ms Tran had tripled her work remit without consultation and while she was on sick leave. Mr Normand received an official complaint from the applicant on 16 April 2020, which read in part:

‘I have made a formal complaint against Isabel Tran (Technical Services Manager), after a number of direct requests to Ms Tran that she stop her unreasonable behaviours that were abusive and violent towards me.

To date, I have experienced the handling of my complaint by MMC as harassing and discriminatory with a marked lack of due consideration for my ongoing health and well-being.

It has fallen short of the standards set by MMC for itself and required by law.’

She had a doctor’s certificate for 16 and 17 April 2020.

[15] On 20 April 2020, the applicant sought confirmation of her hours of work under the Award and whether Ms Rea’s information was correct. On 29 April 2020, the applicant emailed Mr Normand and Ms Rea as follows:

‘I will be returning to work on 4 May 20 as notified.

I demand that MMC provide a safe working environment for me to return to.

I have repeatedly asked that senior management take action to prevent a hostile and unsafe working environment.

However bullying, harassment and discrimination towards me has continued.

I will provide all relevant information pertaining to my ability to perform the inherent requirements of my role. If required, I can provide a fitness to work certificate with any reasonable adjustments supported by reasons (if any). My prior requests for reasonable adjustments were supported by a medical certificate with reasons.

I am not required by law to consent to an officer of MMC speaking with any of my treating doctors.

I have been on medical leave of absence for short periods of approximately 2 weeks.

I have returned to work each time and promptly attended to my outstanding work.

I reserve all rights including the right to take legal action in relation to my workplace rights’.

‘Further I note that my prior attempts to return to work were frustrated as a direct consequence of MMC failing to take effective action to provide a safe environment free from bullying, harassment and discrimination.

I demand that MMC immediately take action to ensure that I am not injured at work again when I return to work on Monday, 4 May 20’.

[16] The applicant provided numerous documents about the conditions she required for returning to work and included a five page almost daily list from January-May 2020 of five persons she claimed had bullied her, including Mr Normand, Ms Tran, Ms Rea, Ms Drakes, Ms Roberts and Worklogic.

[17] Ms Normand referred to conversations he had with Ms Drakes and emails she had received from Ms Tran about the applicant’s hostile and aggressive manner of engaging with her which commenced in mid-November 2019. He also understood that the applicant lodged a whistleblower complaint against Ms Tran in respect to her allegations against her. Ms Tran had written on 2 December 2019 as follows:

‘Self-isolation

Geena is a self-contained person. Indeed, this is one of the key things that I found a positive when interviewing her. However, this has progressed to a problematic level over the last number of months.

Geena behaves in a way that communicates that she no longer wishes to have meetings or engage in face to face discussions with staff. Even when colleagues or team members are sitting a few feet away in an open plan office, Geena will send emails.

In addition, despite being directed to build necessary relationships with stakeholders, such as other team members and brokers who refer work to her, Geena has resisted doing so.

Email correspondence

The second issue is my immediate concern. When interacting with me, largely via email as flagged above, Geena has started making assertions and allegations about me as her manager. In just a few months, Geena has expressly and impliedly stated on email that I have been:

•  unclear about the scope of her role and responsibilities

•  unclear about the business's expectations of her

•  unsupportive of her role and left her under-resourced

•  unethical and worked contrary to company standards

And, as I read her most recent email below, disrespectful and unfair to her.

Needless to say, I disagree with Geena's assertions and find this trend concerning.

Actions taken

When I have received these emails, I have met with her in person to discuss what she has raised as I don't believe they are topics appropriate for email conversations.

When we meet in person and talk through the concerns, we reach a resolution and Geena always appears comfortable with the conclusion and outcome. Certainly from my recollection, we have never left a discussion unclear, in ongoing disagreement or with either one of us seeking further follow up.

Nonetheless, Geena then appears to have a change of view or a different position after the fact and sends me further emails re-stating her objections against me as her manager. So, at no point, talking to me directly about her change of mind.

Given the number of these objections to me in such a short period of time, all of which seem to be ungrounded, and the building up of all of these emails, I am concerned that the next step will be Geena lodging a claim of some kind.

As a manager, I have tried to keep these discussions 'light' and positive in tone, so I did not follow up in writing – as again, I was trying to demonstrate that direct communication was more constructive and did not want to foster any anxiety Geena had about her job security or Marsh - and also did not keep file notes.

Given the number of emails and the tone they are taking, coupled with the lack of written responses from me, I am worried and feel increasingly threatened in my role as her manager.

In view of the year I've had with other performance management matters in the team, I lack the resources to manage this on my own and frankly, am overwhelmed at having to once again bear the brunt of another colleague's frustration and hostility.

Proposed next steps

You'll see that in the latest email below, Geena has criticised me for praising her in front of colleagues and also that I have been unfair to her for seemingly both including and excluding her on a new matter that has only just emerged.

Before the substance of what's in the email can be tackled it would seem to me that a conversation with Geena ought to occur to discuss the emails generally and the most constructive way to resolve disagreements and communicate going forward.

I'd like to include you in on that discussion but given our different locations, I'm not sure whether this is ideal. Alternatively, I am open to any other suggestions or ideas you might have to help move this matter forward.

As an aside, I have kept my own line manager, Mike Hutchinson, abreast on these developments.

I'll give you a call shortly to follow up. Thanks in anticipation.

Isabel’

[18] Mr Normand said that after Ms Rea directly managed the applicant from 13 February to 31 July 2020, she had informed him the applicant’s interactions with her were also hostile. She believed that managing the applicant on a long-term basis was untenable.

[19] Mr Normand received Ms Roberts’ report on 23 July 2020. It found none of the applicant’s 14 allegations and/or 6 complaints asserting improper conduct by Ms Tran were substantiated. After reviewing the report, Mr Normand said he was concerned with the issues raised by the applicant’s Team, in particular Ms Tran and Ms Rea, about the manner in which she engaged with them. He was also concerned about the applicant’s characterisation of her work colleagues. He came to the view that the relationship between the applicant and her Team had broken down and that there were health and safety risks in the Team arising from the applicant’s interactions. He concluded that the Company’s Code of Conduct had been breached and decided to terminate her employment. The findings of the investigation were communicated to her on 30 July 2020 (Annexed to this decision as Appendix ‘A’).

[20] Mr Normand met with the applicant on 31 July 2020. The applicant declined an in-person meeting and it was conducted by video conference. Mr Normand said he asked the applicant to response to the investigation findings, but she declined. He then informed her of his decision to dismiss her, given the loss of trust and confidence in her ability to perform her role and the hostile manner in which she engaged with internal and external stakeholders and its effects on the health and safety of her Team. She filed an application for an unfair dismissal remedy the same day.

[21] Mr Normand believed that the applicant’s reinstatement is not viable and would put at risk the health and safety of other employees. The fact she raised false allegations against Marsh, its managers and employees demonstrates and irreparable breakdown in the employment relationship, which meant she could not return to Marsh in any role.

Ms Tanya Rea

[22] Ms Rea has overseen the Technical Services Team since 19 December 2019 when Mr Mike Hutchinson retired. As she does not have functional expertise in technical services, she relied on Ms Tran to manage the Team. The Team engages with internal stakeholders, including client services teams, Legal, Compliance, Claims and Finance, and external stakeholders such as clients and insurers. Ms Rea said that each Team member has specialist expertise, but are expected to be generalists and work together. The applicant had particular expertise in Duties and Levies (‘D&L’).

[23] Ms Rea said that one of the first issues the applicant raised with her in December 2019 was that her title should be Technical Consultant, not Associate Technical Consultant. She understood this had been agreed at the time given the applicant had no prior insurance industry experience. When the applicant raised it, it was almost 12 months since she started and she agreed to change her title.

[24] At the time of her commencing in the role, both Mr Hutchinson and Ms Tran had requested assistance from Ms Drakes to deal with concerns about the applicant’s performance. She was aware Ms Tran attempted to schedule a meeting with the applicant on 4 December 2019, but was delayed until the new year at the applicant’s request.

[25] Ms Rea referred to the applicant’s complaints of 31 January 2020, which included a claim that Ms Tran ignored her in the hallway and differences between Ms Tran and the applicant about the scope and importance of her job requirements. Ms Rea denied she was trying to move the D&L functions away from Technical Services. Further, Ms Rea was aware that Ms Tran had said the applicant took on responsibility that rested with another team. Ms Rea had to confirm the remit of the applicant’s role extended beyond D&L and included general insurance advice. The Chief Legal Counsel and Chief Financial Officer agreed with her.

[26] Ms Rea was aware Ms Drakes spoke to the applicant and her support person on 6 February 2020, but the applicant hung up on her. One week later the applicant’s solicitor letter was received. It was immediately agreed to remove contact between Ms Tran and the applicant while the applicant’s allegations were investigated. Ms Rea became her reporting line and Ms Tran moved to another floor. Ms Rea said that initially, she was copied into all work requests to the applicant, but after nine days, Ms Rea intervened as there was a complete breakdown in communications between Ms Tran and the applicant. At this point, all work allocation came directly from the business or her. Ms Rea and Ms Drakes also decided to engage Worklogic to conduct an external investigation into the applicant’s complaints. It was the hope of a quick investigation, but ultimately became five months.

[27] Ms Rea’s evidence was that although the applicant was technically very good, she found her difficult to manage for the following reasons:

‘(a) she would frequently not take direction from myself, citing direction from others more senior within the organisation which meant that I needed to repeat my directions. For example, in early June 2020 Geena told me that she would not do something because her remit was Duties, Levies and Terrorism and that Wayne Vergano our CFO had told her that it was an important part of her job and therefore she was going to prioritise it.

(b) she challenged my judgment. For example, Geena declared her working hours to be between 5 am to 1 pm without seeking my approval and I now understand she sought confirmation of my response from Peter Normand before accepting my response. Email dated 25 March 2020 at pages 33 - 34 of TR1.

(c) she challenged my authority. For example when assigning her work, she would respond that tasks needed to be reassigned or were not meaningful or she would continue to work when on sick leave despite my direction not to do so. Examples set out in two emails dated 5 March 2020 at pages 35 - 36 and 37 - 38 of TR1 and 14 March 2020 at pages 39 - 40 of TR1 and 5 May 2020 at page 41 of TR1.

(d) she had very specific demarcation lines in terms of her remit. For example, when I took over the team, we discussed a Design and Distribution Obligations Project (ODO Project). I made the decision to run it with Geena providing technical advice on the legislation. Geena initially seemed happy about the arrangement and then said that it was not her job. In response I said that we do need technical advice and she

(e) needs to do it and that it was covered in the "Assistance with key projects as required" portion of her job description;

(f) she was unwilling to take feedback from me. An example is set out in an email dated 28 February 2020 at pages 42 - 46 of TR1.

(g) she challenged the way that we worked as a team. For example, we did not have an Admin resource which meant that the entire team had to perform administrative tasks. She did not accept that this was part of her role;

(h) she challenged Marsh protocols. For example, the directive for all staff to work from home had to be repeated multiple times before Geena agreed to comply with the directive. Email dated 25 March 2020 at pages 47 - 53 of TR1; and

(i) she made inappropriate comments about Isabel, alleging that she was withholding information from her and that she had increased her remit during the period when I was managing her.’

[28] Ms Rea observed a consistent pattern of behaviour with the applicant of raising a minor issue which she interpreted as something more and it would get blown up. If she did not want to do something, she was relentless in pushing her point. Sometimes she would receive four to six emails daily on one or two topics. She pleaded with her to just talk to her. Ms Rea found that her constant attention to the applicant’s emails made her difficult to get other things done and she felt her blood pressure going up. She estimated that 50% of her time each day were spent dealing with the applicant’s issues and this wore her down. She felt she was constantly ‘walking on eggshells’, even when the applicant was not confrontational.

[29] Ms Rea became increasingly frustrated in bending over backwards to accommodate the applicant’s requests and she told Ms Drakes she felt harassed by her as she was sending a barrage of emails which appeared like she was ‘setting her up’ for future complaints. Given the applicant’s inability to take constructive feedback and her inability to self-reflect, Ms Rea formed the view that any performance management process would not be well received. Ms Rea had a ‘period of relief’ when the applicant was off work for three weeks.

[30] Ms Rea said she told Ms Roberts the interim arrangement of having a team of four having two direct reports was unworkable, and that managing the applicant was ‘emotionally draining’. While Ms Rea was not involved in the decision to dismiss the applicant, she agreed it would be unworkable for her to return to the Technical Services Team or any role at Marsh, as her interactions with others were not aligned to Marsh’s corporate culture. The amount of time wasted in managing the applicant and her unwillingness to take direction was not sustainable. Ms Rea said she was worn down physically, mentally and psychologically from the experience.

Ms Melanie Roberts – oral evidence

[31] Ms Roberts has been employed by Worklogic for three and a half years and has seven years’ experience as a workplace investigator. Ms Rea interviewed a number of persons, a transcript was taken of the interviews, and individuals had an opportunity to make corrections and put further responses. The tendered Report contains a 44 page overview, witness statements from a number of individuals and 27 attachments. The applicant was interviewed on three occasions – 15 April, 12 May and 21 May 2020. She sought no support person. Ms Tran and Ms Rea were also interviewed and provided numerous emails and other documents.

[32] In cross examining Ms Roberts, the applicant sought to make some point that Ms Tran’s support person in her interview was her husband, a practicing lawyer, who took notes in the interview. Ms Roberts said the process she follows is to decide who to interview and whether they are relevant to her findings of fact. Whether Ms Tran’s husband handed her a document was for her to decide if it was relevant. In any event, she relied on her own notes. She read all the documents provided to her and weighed up all the evidence. She does not make findings of motivation.

[33] Ms Roberts was asked about the applicant’s job description which Ms Tran asked her to write. She rejected the applicant’s claim that Ms Tran failed to provide her with clear expectations. Her conclusion was that Ms Tran had tried to assist her to understand her different areas of work and scope.

[34] Ms Roberts said that it was usual to note that an issue in the investigation was the doctor’s recommendation that the applicant not be interviewed for longer than 50 minutes. This was necessary to explain why an investigation might have taken longer than normal.

[35] Ms Roberts was asked about the applicant’s allegation that she lost a day’s pay when she commenced work on Tuesday 5 February 2019 instead of Monday 4 February 2019. It was not unreasonable for her to start the next day because Ms Tran does not work on Mondays. In any event, the applicant had agreed to do so (and now complains over 12 months later). The factual position was proven, but it was not an unreasonable request and she was paid for that day anyway.

[36] In respect to allegation 7, Ms Roberts concluded that the work the applicant was doing on a statutory compliance notice, was beyond her experience and scope and Ms Tran was concerned that she was doing something she need not do and was trying to help her. It was appropriate to describe it as ‘unsustainable’; it was not a reprimand.

[37] As to the ‘lipstick and high heels’ allegation, Ms Roberts had concluded by speaking to Ms Tanya Boothby and Ms Tran, that these comments were not likely to have been made by Ms Tran.

Case for the applicant

[38] The applicant provided an amended statement of 21 October 2020 (the day of the hearing) of 38 pages and 275 paragraphs, with a further 245 pages of annexures, a confidential exhibit related to her whistleblower complaint and a further bundle of documents related to her medical certificates. Although Ms Lopes did not object to the amended statement, it is plain that the numerous amendments made were not mere technical corrections, but were inserted in response to the respondent’s filed evidence in order to bolster her case in a more favourable light. Ordinarily, given my directions in the matter, such an amended statement would not be accepted or at the very least, would have invited further evidence from the respondent. I thank Ms Lopes’ cooperation in this regard. In any event, I accepted the amended statement and the other material as all the applicant wanted to put before the Commission for consideration where relevant and not repetitive.

The amended statement

[39] The applicant holds a number of degrees and qualifications (including a Graduate Diploma in Legal Practice) and has worked in numerous roles in the public and private sectors. She described herself as follows:

‘I describe myself as a self starting, quick learner, emotionally intelligent, ethical and honest team player who is technically skilled in a range of disciplines.’

[40] In 2016 and 2017, she worked with Ms Tran’s husband in a legal team. She claimed Ms Tran ‘headhunted’ her for the role of Technical Consultant in March 2018. Shortly after commencing, Ms Tran told her that her title would be Associate Technical Consultant for a period of time. She understood this was a more junior role and she would not be taken seriously. She saw it as a demotion, but agreed to it so as to not get offside with management. Ms Tran also asked her a week before starting that as she does not work Mondays, she would rather she take a day off without pay and start on Tuesday. She said she agreed, because she had no choice.

[41] The applicant said that there were four members in the Team, each being a designated subject matter expert. Hers were D&L and Terrorism insurance. She worked five days a week; Ms Tran and Ms Boothby worked three days a week. The applicant came to understand her role (having no previous experience) from talking to her colleagues and her predecessor, Ms Lois Whitfield. As she did not feel the Technical Consultant job description dealt with her day to day responsibilities in the D&L role, she asked for clarification from Ms Tran, but it was not forthcoming.

[42] From her first week in the job, the applicant shadowed Ms Whitfield. She claimed the D&L work was not valued in the Team. However, it had the potential for reputational risk if errors or corrections occurred. She said Ms Tran would get irritated if she ever said she needed to prioritise the D&L work, which interfaced regularly with internal and external stakeholders.

[43] The applicant passed probation and between October 2019 and February 2020, she participated in an annual performance review. She received a 2% pay increase in February 2020. She referred to a complaint from the Compliance Accountant about issues with D&L work in July-August 2019. Ms Tran approached her angrily and told her to respond to the complaint. A subsequent meeting was organised for 23 July 2020, but was later cancelled. The complaint was not raised again until Ms Tran told the applicant that the complaint was against her and that Ms Beverly Flynn had threatened to lodge a bullying complaint against her (Ms Tran) and Ms Boothby. As the business was desperate to avoid such a complaint, Ms Flynn was made redundant. The applicant spoke to Ms Whitfield about this matter.

[44] The applicant then dealt with the request from Mr McSweeney in relation to a statutory compliance notice on 4 October 2019, which he had authorised her to deal with. Ms Tran told her the work was ‘unsustainable’ and a more experienced person would have refused to do the work. She explained she was expected to do it and there was no one else. She was concerned that what Ms Tran was asking her to do would be in breach of the Code of Conduct, requiring compliance with all requests and to raise any issue with her Manager, Legal, HR or Ethics. The applicant emailed Global HR seeking to have a support person with her in any further meetings with Ms Tran. They had a conversation on 15 October 2019, where Ms Tran told her that Legal and Compliance should be doing the work, and it was Mr McSweeney’s problem. They had a further meeting on 8 November 2019 and Ms Tran ‘went on’ for over 60 minutes and was abusive. The applicant claimed to have continuing confusion over her role, responsibilities and expectations of Ms Tran. The issue was not resolved. On 19 November 2019, the applicant provided a job description, as Ms Tran had requested. The applicant claimed her work continued to be devalued and her ‘personal boundaries’ were not being respected in Team meetings.

[45] The applicant provided her understanding of the Silent Cyber Project which she and others were asked to work on, and complete by 21 November 2019. The applicant believed the work was being duplicated by others. She raised various issues and made recommendations to Ms Tran, but she offered no constructive response. On 3 December 2019, Ms Tran suggested they meet to discuss her 28 November 2019 email. The applicant asked it be deferred for personal reasons and Ms Tran initially agreed. However, a week later, Ms Tran accused her of using personal issues to avoid discussing work matters. This was insensitive, unfair and inaccurate.

[46] The applicant said that Ms Tran accusing her of self-isolation was unfair and she does not know what the term means. She then went on to describe the ‘hot desking’ arrangements in the office and claimed she regularly worked with others, including in the Finance Team. She believed her interactions were on an ‘as needs’ basis and her preference to send emails, rather than phone calls, was because phone calls could be misinterpreted. Ms Tran was micromanaging her. The applicant believed that as a ‘structured thinker’, using emails allowed her to do her best work. No one, other than Ms Tran and Ms Rea, criticised her use of email communication.

[47] Upon returning from leave on 30 January 2020, Ms Tran asked her to process a supplier invoice which she believed was contrary to Marsh policy. As someone who always followed Company policies and procedures ‘to the letter’, she did not want to be an ‘accomplice’ to Ms Tran’s ‘cavalier’ approach to policy. She emailed her the next day as follows:

‘I am a talented and hardworking employee who handles a diverse workload and I support multiple epartments (sic) at MMC with my work.

If we work together, I believe we can add real value to MMC

Unfortunately, over the last few months I have had the need to write to you about how your behaviours have had a negative impact on my ability to do my best work, including how this has negatively impacted my health.

It appears that there has been an escalation of such behaviours since I wrote to you to you in good faith about how my actions on Duties and Levies work were in line with MMC The Greater Good standards.

Over six months ago, I asked for you to provide your expectations in writing to me.

To date, you have not provided your expectations to me.

In order for me to continue to perform at my current high level, I need to know that I have healthy, professional support from you as my manager.

For this to occur, all behaviours by you towards me that are inappropriate, excluding, aggressive, pressuring, or unreasonable will need to stop immediately.

I ask that this issue is resolved so that we can move forward.

I am ready, willing, and able to continue doing my best work for MMC with respectful and productive relationship with you as my manager.’

[48] On the same day, the applicant contacted the employee assistance line and also spoke to Mr McSweeney and Ms Rea. She claimed Mr McSweeney was very supportive of her and told her to keep doing what she was doing in her D&L role. She understood Ms Rea agreed with him.

[49] On the same day, the applicant said Ms Tran walked past her twice without saying hello. She emailed her to say this was disrespectful.

[50] The applicant had a phone meeting with Ms Drakes on 6 February 2020 with her support person, Mr Tony Semaan to discuss her 31 January 2020 email to Ms Tran, prior to which the applicant made inquiries about lodging a harassment complaint. Despite claiming the meeting was to discuss her email, the only conversation the applicant records in her statement related to the applicant’s later claim that Ms Drakes gave her false information. In order to demonstrate its absolute triviality and absurdity, I set out her version of the conversation as follows:

Ms Kordek: ‘Before we start can I ask who is the Commissioner for Equal Employment Opportunities that’s mentioned in the excerpt you sent me?’

Ms Drakes: ‘I’ll need to look into that. It’s an external body if equal opportunities are breached in your complaint. Internal is usually the first point of contact but if the employee does not feel the issue is resolved there is an external body, the Equal Opportunities Commissioner they can go to in order to follow through with the complaint. We don’t want complaints to go that way. That’s why you’re talking to me today.’

Ms Kordek: ‘I have a problem. The excerpt of the complaints procedure that you sent me was from New Zealand.’

Ms Drakes: ‘New Zealand? That’s not what I have on my document.’

Ms Kordek: ‘There is no Commissioner for Equal Employment Opportunities in Australia. I found a copy of the whole policy on the Intranet and it’s from the region New Zealand.’

Ms Drakes: ‘I was not aware of that. When I need a policy I go to the Intranet. There’s nothing that shows it is from New Zealand.’

Ms Kordek: ‘But I sent you a link to the Australian policy and all you said was it was a more concise version of the one you had already sent me.’

Ms Drakes: ‘I’ll have to look into that.’

Ms Kordek: ‘I’m sorry, but I can’t continue our meeting today. Would you note on my file that this is because of the information you sent me and what you told me today. You didn’t invite my support person to our meeting today and I’m conscious that his own diary is already overscheduled. You didn’t respond when I asked for video so I could share documents. I’m in very trying circumstances. I can’t continue this meeting today.’

[51] On 13 February 2020, the applicant instructed a solicitor to draft a letter to protect her legal rights. She wanted a non-emotional letter that outlined her health and safety concerns so her employer could act on them. The applicant was told of Worklogic’s investigation arising from her solicitor’s letter in late February 2020. From then on, she received no further information and said she ‘felt very alone in the process’. On 4 March 2020, the applicant emailed Ms Lopes complaining of a lack of allocated work and being ‘iced out’ of the Team. She also requested ex gratia leave. The applicant set out her leave with medical certificates for:

•  6 March-9 April 2020

•  16-17 April 2020; and

•  29 April-17 May 2020.

A further GP letter dated 30 April 2020 said that Ms Kordek would be fit for work from 4 May 2020.

[52] The applicant received Ms Lopes’ letter of 6 March 2020 and was surprised by its tone. She requested medical certificates and an assessment from her doctor of her capacity to participate in the investigation. She claimed she showed the email to her doctor who said this was a breach of doctor confidentiality rules.

[53] The applicant was interviewed by Ms Roberts on 15 April, 12 and 21 May 2020. She found the remote interviews difficult as she had not been provided with all her relevant materials.

[54] On 16 March 2020, the applicant noticed on the intranet her work remit had been tripled from D&L and Terrorism to ‘Duties and Levies; Australian Terrorism Insurance Scheme; Packaged products and special risks; Motor vehicle and CTP; Accident and Health; Fidelity/Crime; Workers' Compensation’, while she was on leave and without any consultation. When she complained to Ms Rea, she told her to ‘stop overthinking things’ and ‘please make inquiries before reporting every issue to a higher authority’. This was unfair, insensitive and inflammatory.

[55] The applicant addressed Ms Rea’s suggestion that she would frequently not take direction by giving her version of events in respect to the Design and Distribution Obligations (‘DDO’) project in late 2019. She claimed that she did not refuse work, because it was not in her job description or because it was demeaning. She would do whatever was required, if it was within the bounds of her job description. She believed it was only fair and understandable to question her work role and obligations. When Ms Rea asked her to unpick the legislation, she refused to provide legal advice, without a practicing certificate and said she would do so, if Marsh paid for a practicing certificate.

[56] In respect to her D&L workload, the applicant claimed the scope of her work was ambiguous and it was Ms Rea’s responsibility to manage the difficult expectations of other Teams. The applicant denied she constantly challenged Ms Rea’s judgement and authority, and rejected Ms Rea’s claim that she was given meaningful work to perform.

[57] The applicant claimed that she assisted Ms Whitfield, who was covering her while on sick leave. The applicant denied that she did not accept feedback, or that the burden on the Team was shared equally. She did not expect to be the only person doing administrative work, including work for others. The applicant claimed she was unaware of the work arrangements during COVID-19 restrictions. She told Ms Rea she simply did not read the Company instructions because she was so busy.

[58] The applicant did not accept she made inappropriate comments about Ms Tran. She had made complaints in good faith. It was unfair of Ms Rea to describe her emails as ‘relentless’. In fact, 3 days before her dismissal, she worked with her for 30 minutes in a friendly and productive way. She never told her she felt harassed by her and found her view, that her leave was a ‘period of relief’, hurtful.

[59] The applicant claimed that she was appreciated and thanked for her work and gave examples of others describing her as ‘brilliant’ and work ‘excellent’. She believed that senior levels of management ‘could count on me at any time’.

[60] In respect to her dismissal, the applicant said that on 24 July 2020, she was invited by Mr Normand to attend a meeting on 31 July 2020 at 2pm to discuss the outcome of the Worklogic investigation. The day before the meeting, they exchanged emails about the location of the meeting and the need for her to be physically present. Had she known she was to be dismissed, she would have come to the office, because her home was ‘her sanctuary’. She would also have arranged for an FSU support person.

[61] At the meeting, also attended by Ms Maude, Mr Normand appeared to be reading from a script on a screen. The meeting lasted for less than 10 minutes The applicant’s recollection of the conversation was as follows:

Mr Normand: ‘The external investigator has found a few of your misconduct allegations proven or part proven. None of them were found to be unreasonable conduct by Isabel.’

Ms Kordek: I don't understand. But thank you for the process.’

Mr Normand: ‘However, I have made the decision to dismiss you.’

Ms Kordek: Well, that 's the end of the conversation!’

Mr Normand: ‘You passed probation satisfactorily. But there have been concerns raised with you since the beginning of your employment ... ‘

Ms Kordek: That's unfair. I've been given no warnings. You can't do that."

Mr Normand: ‘The reason for your dismissal is interactions between you and other colleagues in December 2019. 11

Ms Kordek: Can you tell me what those interactions were?’

Mr Normand: ‘No, you will receive a letter ... Your entitlements will be paid immediately. Do you have any questions?’

Ms Kordek: ‘What's the point? I will file for unfair dismissal.’

[62] About an hour later, the letter and summary of the Investigator’s findings, without any particulars, arrived. She filed an unfair dismissal application that day. The applicant said that at no time was she given any indication her employment was at risk.

[63] The applicant stated she did not and does not agree with the findings of Ms Roberts. Ms Roberts overlooked her evidence in making findings of fact. She felt neither the respondent nor Ms Roberts took her allegations seriously, or investigated them fully. The applicant said she was devastated losing a job she loved and intended to stay a long period of time. She claimed to have spent considerable personal time in learning about taxation and insurance products, including entire weekends. She believed this pays dividends for Marsh.

[64] In the week following her dismissal, she entered into a conveyance with a $400,000 mortgage. She would not have done so, if she knew her employment was at risk. She has now had to move and she is experiencing stress and anxiety and it has impacted on family relationships. She claimed to have been diagnosed with an anxiety disorder. The applicant’s conclusion reads:

‘274. Despite what I have experienced, I don't hold a grudge against Ms Tran or Ms Rea or Mr Normand or Marsh HR. I think I could work with them again. I don't think that the damage to our relationship is irretrievable. I would be happy to undergo any necessary training. I would also be happy to participate in mediation. Neither was offered to me by Marsh.

275. In any event, Marsh is a large organisation, with multiple related entities. I already worked closely and well with other employees at Marsh. My job already involved liaising and working with members of other teams.’

Ms Rea’s reply statement

[65] Ms Rea responded to the applicant’s statement as follows:

(a) D&L was not the applicant’s full remit (60% of her time). She was required to provide technical advice on general insurance, such as Travel, Motor and Property. Given her lack of insurance experience, Ms Tran arranged for her to ‘shadow’ a colleague to learn the intricacies of D&L.

(b) Ms Rea approved the applicant’s 2% salary increase in 2020. She denied the words attributed to her by the applicant. She recalled saying ‘I’ve had good feedback from Michael McSweeney (Chief General Counsel) on your duties and levies work. Throughout this year, we need to work to expand your remit to other lines of insurance’.

(c) Ms Rea explained to the applicant that Ms Tran had requested assistance to address the issues in their 31 January 2020 email. As the applicant indicated her health was impacted, the issue had to be raised with HR. Ms Rea denied saying she did not want to be involved. She advised that her role was independent and that the goal was to find a way for the applicant and Ms Tran to work together.

(d) It was agreed on 27 February 2020 to change the applicant’s title as she had requested and her additional work on Motor and Travel policies, fidelity and workers’ compensation was expressly excluded.

(e) In Ms Rea’s email to the applicant of 26 March 2020, she said, inter alia:

‘If you feel like this is overburdening beyond your remit/capabilities then please discuss with me. We have done everything possible to accommodate your work requests, but please make enquiries before reporting every issue to a higher authority. It is difficult to work like this. (I have copied Tanya Drakes …).’

This email was in response to the applicant’s second email of the same day on the same topic, and followed exchanges on 23 March 2020 when the applicant returned to work without medical clearance and by ignoring directions that all employees work from home due to COVID-19. In the same week, the applicant attempted to set her own working hours as 5am to 1pm, without any consultation.

(f) Ms Rea was patient with the applicant and not insensitive. She agreed to her setting up her own work station paid by the Company. However, she had to be firm as the Company was doing everything possible to accommodate her demands, with little appreciation. She needed to set boundaries and would not be replying immediately to late night or early morning emails.

(g) Ms Rea did not know the applicant did not have a practicing certificate as her resume indicated she had three previous lawyer roles. In any event, she did not ask her for legal advice. She was merely commenting on her strengths.

(h) Ms Rea did not always respond to specific emails from the applicant, because she would receive multiple responses to a single request and did not want to encourage more rebuttal emails.

(i) The applicant pushed back from doing work and said it was the responsibility of others. In the applicant’s email of 29 May 2020, she said ‘I won’t be able to do more than this next week on Travel and Motor – this is in Isabel’s remit. My official remit is Terrorism and D&L’. Ms Rea added there was no ambiguity about her expectations of the applicant’s duties and responsibilities. She was given meaningful work, but when she went on sick leave and returned on 23 March 2020, the work had already been completed.

(j) The business had never required the applicant to work on sick leave.

(k) The email exchange on 28 February 2020 demonstrated that the applicant was not open to feedback and only wanted to emphasise her own views.

(l) Ms Drakes was the only person Ms Rea told she felt like she was being harassed by the applicant. She did not believe telling the applicant would have changed her behaviour.

(m) Ms Rea’s issue was not her work in the D&L space, but her unwillingness to cooperate in other areas or provide assistance to the Team.

Witness oral evidence

[66] At this juncture, I wish to take the unusual step of making comment about the applicant’s cross examination of the respondent’s witnesses which will put my summary of their evidence in proper context. The summary will not include the applicant’s many statements and speeches during her cross examination of the respondent’s witnesses.

[67] The applicant’s cross examination of the respondent’s witnesses was rambling and unfocussed. It was littered with her making speeches, commenting on the witness’ answers, attempting to engage in arguments with them and making snide and sarcastic comments, sometimes sotto voce and not recorded on the transcript. Her cross examination was designed to trick the witnesses into answers without properly setting up the question, or not referencing and showing the witness, the documents she was asking about. Despite my frequent interventions and explanations, the applicant simply ignored my directions to conduct her cross examination properly and respectfully. At two points, I had to warn her that unless she did so, I would adjourn the proceedings until she complied. Needless to say, she ploughed on regardless.

[68] Over two days of excruciating, wasteful and meandering cross examination of just three witnesses, she emerged with little credit and if she believed she advanced her own case, she is sorely mistaken. One might expect such conduct from an inexperienced and unrepresented litigant, but for a well-educated person, including with a purported law degree, it was ‘beyond the pale’ and beggars belief. It might well explain why, after being previously represented by two law firms and the Union; see: [6] above, she now represents herself. I am reminded of what Abraham Lincoln once said: ‘He (or she) who represents himself (or herself) has a fool for a client’.

[69] Moreover, her courtroom conduct was entirely emblematic of her attitude to work and her work colleagues which ultimately led to her dismissal. More significantly though, her animus and hostility towards the senior management witnesses, makes the prospect of her reinstatement (assuming she succeeds in establishing her unfair dismissal), utterly unthinkable. More about this later.

Mr Normand

[70] In cross examination, the applicant sought to suggest Mr Normand had exaggerated his tenure at Marsh because he included his time in the business of Jardine Lloyd Thompson, when it was acquired by the respondent in April 2019.

[71] Mr Normand was asked if it was usual practice for the respondent to engage in an external investigation into a complainant’s allegations which results in a finding about the complainants themselves. He agreed he did not conduct an investigation himself into his concerns that there was a risk to the health and safety of others by the applicant’s complaints and conduct towards her Ms Tran, Team and others. He believed he exercised due skill and care in reviewing Ms Roberts’ report and coming to the conclusions he did. Her actions and false allegations had resulted in Ms Tran’s medical issues requiring the assistance of a psychologist. Mr Normand accepted there was no direct contact between the applicant and Ms Tran from 31 January 2020, when for both their benefit, Ms Tran moved to another level in the building while the Company worked through the issues. He was also aware the applicant had almost two months off in March and April 2020.

[72] Mr Normand said he was comfortable with the process undertaken, Ms Roberts’ report and the evidence which supported her conclusions. At the applicant’s invitation, he cited one example of her querying Ms Rea’s response to her about the hours of work. There were repeated examples of the applicant not accepting the word of her manager and questioning the information provided. He proceeded to give further examples in respect to the invoicing through iProcurement and his assessment of whether the allegations the applicant made were made in good faith or not; such as the job description allegation, which she refused to engage with. Mr Normand noted that even if a factual circumstance was proven, it does not mean a claim of harassment was proven. The applicant referred to the respondent’s harassment policy which reads, inter alia,

‘If after an investigation is found to be substantiated, both parties would be told of the decision and the reasons for it. The human resources manager will recommend action taken to prevent the behaviour reoccurring, repair reasonable loss or damage, ensure no reprisals, et cetera.’

Mr Normand answered by stating that the day’s leave without pay on 14 February 2019, came many months after the fact and had been agreed by the applicant at the time.

[73] Mr Normand reiterated that the decision was made to terminate the applicant’s employment as a result of reviewing the findings of the Report and requesting she attend a meeting to provide her with the outcome and communicate to her that the respondent was moving to dismissal. He had also asked her if she had any response to the Report and she declined to answer.

[74] Mr Normand accepted that there is a process for managers to raise health and safety issues. These concerns had been raised by Ms Rea and Ms Tran. The investigation of these concerns were in the Report. He believed the applicant contributed to the delay in finalising the applicant’s complaints which contributed to Ms Tran’s stress and anxiety.

[75] As to another example of the applicant being a risk to workplace health and safety, Mr Normand referred to an email from Ms Boothby on 7 July 2020, which reads, inter alia:

‘The thought of working alongside Geena in the office I would find distressing due to the unreasonable nature of her behaviours. I'm also concerned that dependent upon the outcomes Geena may cast her net wider and out of malice accuse me of similar, unfounded claims.’

Mr Normand said this was evidence of a person’s view based on working with the applicant.

[76] On the second day of hearing, the applicant proceeded to go through each of the allegations she raised in the Investigation and asked Mr Normand whether they constituted a risk to the health and safety of others. The allegations also go to the breakdown in the trust and confidence of the employment relationship. Much of the cross examination in this respect was self-evident from the allegations and the findings that they were not substantiated. Although the applicant’s questioning was largely argumentative and self-serving, I shall attempt to summarise the salient points.

[77] The applicant sought to suggest that some power imbalance was the reason she did not question her first day’s pay being denied when she was required to commence on the next day, according to the contractual arrangement and for her complaint that she was treated as a junior employee, because she was initially titled ‘Associate Technical Consultant’; noting that this was later altered to comply with her demands. Mr Normand agreed there was a difference, but this could be attributed to many factors. In any event, Mr Normand understood the applicant had accepted the description at the time (although she did raise a concern) and did not query it until November 2019; some 10 months later.

[78] Allegation 3 concerned a claim Ms Tran intimidated the applicant on 23 August 2019, with comments about someone else’s redundancy. When asked why four days later she wrote ‘You are a fantastic manager’, Mr Normand said this was quite incongruous. The applicant then asked if this was just her trying to ‘suck up’ to the manager, who had just intimidated her. Mr Normand said that this was dishonest and evidence of no constructive relationship. The applicant then diverted to Ms Roberts’ reference to a ‘derailment of the process’ (by the person) made redundant. She asked Mr Normand what this meant. He said it has no particular meaning in a HR context.

[79] Mr Normand said a further example of the breakdown of trust, was the applicant’s allegation Ms Tran had purposefully given her trivial and demeaning tasks. Rather, the evidence was she was treated no differently to anyone in the Team, all of whom would perform administrative tasks from time to time.

[80] When asked about the applicant’s claim, Ms Tran was trying to force her to work while off sick, Mr Normand said Ms Tran’s communication to her at the time, was nothing of the kind. She had said:

‘Thank you for checking your work. You received a flurry of emails but please do take it easy and recover. Log in from home if you're up to it but really just rest up, it can wait.’

Mr Normand said there was no different instructions to Ms Boothby.

[81] The applicant claimed that Mr Normand had said in cross examination the day before, that she had raised all of her allegations in good faith. Mr Normand denied he had ever made this admission and the transcript supports his position.

[82] As to the iProcurement issue, Mr Normand said that not all payments are processed through iProcurement, and managers can make decisions inconsistent with strict policy depending on the circumstances, and where exceptions apply – as was the case in this instance. The manager had told her the matter did not need to go through iProcurement, but she refused to accept it and then claimed it was a breach of the law, the Code and Company policy; which it was not. This contributed to a breakdown in the employment relationship.

[83] As to the allegation the applicant had been isolated and information withheld from her, Mr Normand noted that the evidence was she declined to attend meetings when invited and she had been included in all emails to the Team. Mr Normand said that making allegations against your manager, which are proven to be false, demonstrates a breakdown in trust and confidence.

[84] In respect to refusing to do work for the Finance Team, the applicant was taken to her email of 26 August 2020, in which she refers to ‘donkey’ work for Finance and that she ‘fully intended to push back on this task in the future’. The applicant claimed this was not a refusal of work. Mr Normand said that Ms Tran had not told her not to do the work.

[85] Mr Normand said that the allegation Ms Tran had failed to provide her with work expectations was inaccurate (the applicant then sought to challenge the Investigator’s characterisation of her allegations, but this was never put to Ms Roberts). Mr Normand said that not only did Ms Tran provide her with a written job description, she had asked her to review it and refine it, but she did not do so.

[86] Mr Normand agreed that as part of his responsibilities, it is mandatory for him to be aware of all Company policies. Mr Normand said that when he was looking at the Technical Support Team’s job description, he was not criticising the quality of the document, as it may vary from time to time; rather, he was testing the applicant’s allegation that Ms Tran had not provided her with one. This was false. He added that people will often get the same generic job title, but with different job expectations. He did not believe the applicant was asked to write her own job description, nor would that be expected. What Ms Tran was trying to do was to discuss with the applicant the specific tasks and responsibilities expected of her. Mr Normand did not accept that this was inconsistent with the Mental Health and Wellbeing policy which speaks of clear job expectations of employees. He believed the manager and the employee should work in a dual partnership to achieve that clarity. Ultimately, however, accountability rests with the Manager.

[87] Mr Normand believed that in respect to the allegation Ms Tran did not acknowledge or greet the applicant when they passed in the hallway, was because she was feeling scared and anxious of the applicant as a result of her email on 31 January 2020, in which she had accused her of aggressive and unreasonable behaviour. Mr Normand said this further demonstrated a breakdown in the employment relationship.

[88] Mr Normand referred to a complaint the applicant made about Ms Tran in February 2020 in respect to work allocation, and noted Ms Tran was not even her direct report at the time. Making a complaint about work allocated to her by Ms Tran, when Ms Rea was responsible, further disclosed a breakdown in the employment relationship. As to Complaint 2, Mr Normand said Ms Tran had not excluded the applicant from a training session. Ms Tran was not the organiser; Ms Boothby was. In any event, she was invited and did attend. The applicant conceded this was a new complaint she made during the investigation, after Ms Roberts invited her to raise any other concerns.

[89] Mr Normand said Complaint 3 concerned a complaint about an instruction from Ms Rea about the intranet which had been explained, but she refused to accept it. This was also a belated complaint raised during the investigation itself. The applicant said she was on sick leave at the time. However, Mr Normand understood she had taken it up with Ms Rea. As to the applicant’s complaint that she had better insight into what work needs to be done, rather than her manager, this was not her role. It was common for work to be allocated outside a person’s job description and it was reasonable for a manager to allocate such work, so long as it is believed to be within the person’s skills, experience and training.

[90] Mr Normand agreed that the Report did not make any adverse findings against anyone. This was because the allegations were against a range of individuals that were found to be unsubstantiated. He accepted that at no time, had it been suggested that her allegations and complaints were made in bad faith.

[91] The applicant sought to question Mr Normand about an email which Ms Tran appeared to send to herself on 19 November 2019, but addressed to her then Manager, Mr Hutchinson. Ms Lopes explained that these were notes made by Ms Tran for her discussion with Mr Hutchinson that day. In the email, Ms Tran uses the term ‘development feedback’. Mr Normand said this expression is not specifically used in HR, but he understood it is referable to developing both technical and behavioural performance. Mr Normand could not comment on whether this concept was discussed between Mr Hutchinson and Ms Rea.

[92] Mr Normand said that to the best of his knowledge, there is no performance management policy at Marsh. When shown a document headed ‘Marsh and McLellan Companies – Year End Performance Process – Self Evaluation (GK33), Mr Normand said he had never seen it before. Mr Normand was asked that if he had any concerns in relation to an employee’s performance or conduct, should they not be reporting this between 11 November-6 December 2019. He answered that the end of year process should not be about ‘springing surprises’ on employees, as feedback should be given over the whole year. Mr Normand understood that this process was about identifying people eligible for salary increases, which apply in the next year. He understood employees received such increases, including the applicant in April 2020, during the COVID-10 period. Mr Normand was not aware of any negative feedback at this time about the applicant, but that does not mean it had to be recorded for this purpose, as the first discussions are usually verbal. These are not always formally recorded. The issues became more pronounced from November 2019. Mr Normand agreed Ms Tran had raised concerns about their working relationship in December 2019, but it should have been formally addressed, including by taking the appropriate action. Mr Normand agreed that all employees are required to immediately report any risks to health and safety.

[93] Mr Normand acknowledged that employees email each other, even if they are only a few feet apart, and there was a ‘free desking’ office arrangement. The applicant’s point was that Ms Tran had said she ‘self isolated’ from others. Mr Normand was asked about Ms Tran’s email of 2 December 2019; see: [17] above. He said a manager might seek to raise tiny issues in a conversation and not necessarily put everything in writing. He regarded this as more constructive than email exchanges. Nevertheless, he accepted some people feel more comfortable putting things in writing. There should be a level of flexibility to resolve issues in this respect. Follow up emails may be appropriate. Mr Normand believed Ms Tran’s email raised reasonable concerns about her health and safety. It was incumbent on both of them to seek to resolve their issues. Mr Normand accepted that not everyone feels the same way about particular situations.

[94] Mr Normand expected that in providing weekly summaries of one’s work and any issues which arise, they should be discussed and not put into writing. This was particularly the case about the applicant’s alleged confusion with her role. Mr Normand did not accept the applicant’s email responses were about her job description. Ms Tran had asked her for a chat, but this did not happen. Mr Normand said it was perfectly reasonable for a manager to contact HR with serious concerns about an employee, but not initially provide specifics until further inquiry. The applicant then asked Mr Normand about each of the paragraphs in her dismissal letter.

[95] Mr Normand said Ms Tran agreed in December 2019 to defer discussion about the issues until the next year. The applicant sought to have Mr Normand agree that serious issues should have been addressed immediately, not delayed. In any event, Mr Normand understood Ms Tran raised her health and safety concerns with Ms Drakes.

[96] Mr Normand was asked about the following section of Ms Tran’s email of 31 January 2020 which reads:

‘I understand the need to try and mediate, however I believe the relationship is unsalvageable. Geena has various emails today which I find self-serving and unconstructive, make me doubt about any genuineness about working productively with me or this team. You've asked me what I would like to happen. As best I can sensibly respond, I'd like Geena to leave the team in whatever form is least disruptive to me, the team and Marsh.’

He believed this comment speaks to the breakdown in the employment relationship. Mr Normand accepted the applicant had said before:

‘I'm ready, willing and able to continue doing my best work for MMC with a respectful and productive with you as my manager.’

In answer to questions from me to the applicant, she agreed that this exchange occurred six months before her dismissal, so Ms Tran’s view was not even taken up at that time.

[97] Mr Normand was then asked about his understanding of ‘mobbing’ in the bullying context. I noted Mr McArdle’s letter six months earlier which foreshadowed a stop bullying application, which was not pursued. The applicant then put to Mr Normand that when Ms Drakes sent her the Complaints policy, she had given her incorrect advice, because it refers to advising an employee of rights to refer a complaint to the Commissioner for Equal Employment Opportunities, when no such office exists (I interposed here to question the seriousness of such an allegation, because of the old name for the body appearing in the Policy, when anybody, including one with legal training, would know the various anti-discrimination bodies in NSW and Federally. The applicant pressed the issue by asking if it would be more correct to say that reference could be made to the Commission, but ignoring there still exists a Human Rights Commission. While I accept this was a mistake, it demonstrated the level to which the applicant stooped with absurd trivialities of absolutely no consequence or import). The applicant claimed that any competent HR representative would know this information was incorrect. Mr Normand considered some of the applicant’s allegations could be considered vindictive and not made in good faith.

[98] Mr Normand was asked about providing procedural fairness when dismissing an employee. He conceded that allegations against an employee should be put to the employee prior to the dismissal meeting and this did not happen in this case. He explained that he chose immediate termination to protect the health and wellbeing of four colleagues. In any event, Mr Normand did not believe the applicant would cooperate in the meeting and that his performance concerns could not be resolved. Mr Normand said that it could be reasonable to change someone’s job remit while they are on sick leave, and change a person’s remit where the person had no practical training or experience.

[99] In a second day of cross examination, it was established that Mr Normand received the Investigator’s Report on 23 July 2020 and he contacted the applicant that day about the meeting on 31 July 2020. Mr Normand understood that all relevant parties had an opportunity to comment on the evidence through the investigation process. Ms Drakes gave the brief to Worklogic and she updated him on progress every fortnight. They did not discuss the content of the investigation, just its progress. Mr Normand confirmed that he did not investigate the applicant’s further complaints which emerged during the investigation.

[100] Mr Normand had no reason to believe that Ms Boothby was other than open and honest in her dealings with the Investigator in respect to the issue concerning Ms Flynn and redundancy. When I queried what this had to do with the applicant, she stated that it is ‘predictable’ that management people stick up for the bully and want to maintain the status quo. She claimed that Ms Boothby was engaged in character assassination of her. Mr Normand accepted that there was no evidence of the applicant acting aggressively or hostile towards Ms Boothby. The communications the applicant was concerned with, were between Ms Tran and Ms Boothby. Ms Normand denied he ignored evidence critical of Ms Boothby who the applicant claimed had acted disrespectfully and hostile towards her. Mr Normand said he read the Report in its entirety and did not go to every single email and speculate as to a person’s motivation behind them. Mr Normand agreed that the respondent has a disciplinary policy. Ms Lopes was happy to produce it.

[101] Mr Normand denied that Allegations 3, 6, 11, 12 and 13 were false. He acknowledged that he had asked himself if the applicant had genuinely believed in her complaints. Mr Normand agreed he did not go through, item by item, in the dismissal meeting and then told her she was to be dismissed. The applicant made a few comments that it was unfair, he ‘can’t do this’ as she had not received any warnings. Mr Normand had proceeded to read parts of the letter and when she asked for details of the incidents, he said ‘you will receive a letter’. He agreed the letter did not particularise the allegations, or who had made them, but all of the issues were identified in Ms Roberts’ Report. She knew the persons who felt uncomfortable working with her, were Ms Tran, Ms Rea and Ms Boothby. He believed his actions were warranted in the situation and there was no need for a further investigation to check if her allegations were, in fact, substantiated. Mr Normand conceded the letter had been prepared before the meeting and the applicant was not given an opportunity to change his mind.

Ms Rea

[102] At the applicant’s invitation, Ms Rea gave a summary of why she believed the applicant’s dismissal was justified. She said:

‘In general there was constant undermining of my authority, I would suggest; disagreement with orders given; checking back with HR on notifications that I had provided; undermining of my authority by referring to the chief general counsel and the chief financial officer in rebutting things that I had requested were done; disagreement not once or twice with requests to perform activities at certain points in time, but three times on one occasion - that's just one occasion; there are multiple examples in my evidence of Geena Kordek refusing to undertake activities that were requested.’

[103] Ms Rea accepted that her responsibility was to sort out any conflict between expectations of others about the applicant and her role and she did so. Ms Rea pointed to 3 emails around 1 June 2020 where the applicant reluctantly did work on direction. She also sought ‘kudos’ for doing other work which was well within her remit. She made multiple rebuttals to be involved in design and distribution work. The applicant had also challenged her clarification of award coverage and sent a note to the Team, without any consultation with her.

[104] Ms Rea was asked about a job description being a way of demarcating a person’s work remit. She agreed it was. However, demarcation lines are used when convenient. Ms Rea denied there were no examples of the applicant refusing to do certain tasks because they were demeaning, below her skill or not within her job description. There were numerous examples, as recorded in many emails. Ultimately, Ms Rea believed she had to respond to her in writing, because the applicant was setting her up for failure at some point.

[105] At the applicant’s invitation, Ms Rea referred to numerous examples of emails which demonstrated the applicant was unwilling to accept feedback and was unhappy about being assigned work she did not agree with. Ms Rea further said the applicant took every opportunity to challenge and rebut the respondent’s direction to work from home and not come to the office, due to COVID-19 restrictions.

[106] Ms Rea said much of the evidence dealing with the applicant’s views of Ms Tran and her management were clearly inappropriate (she ‘can go fly a kite’) and demonstrated an inability of her to properly communicate with Ms Tran, even when Ms Tran was not her manager. Ms Rea said initially, she consistently asked the applicant not to send multiple emails about the same matter and just call her to discuss. Ms Rea’s intention to resolve issues in the Team, rather than tying up HR on minor issues, which could easily be fixed quickly.

[107] Ms Rea provided many examples of the applicant relentlessly pushing her point by sending four to six emails on one or two topics. Ms Rea was of the view that wherever there was a disagreement about work allocated, or that she did not agree with it, it became a problem, or she would go on sick leave. Any feedback provided came back with a disagreement or some disgruntled rebuttal.

[108] As to an example of the applicant calling into question the judgement of her colleagues in respect to outside stakeholders, Ms Rea gave the following answer:

‘There is a note from Geena in relation to a meeting to be held with Allianz, which are one of our insurers, in relation to the project - the DDO project which Geena - which has been mentioned numerous times today. Following on from approval from legal to have a meeting with an insurer, after Geena raised that as an issue Geena sent me separately something that - a note to say, "I don't think it's prudent. I think that we need to have our own issues organised first and I don't believe that Allianz are being altruistic." The reality is that the design and distribution obligations are on both insurers and on brokers, and part of the requirement is that a broker cannot sell a product that doesn't have a target market determination attached to it, so it's necessary for insurers and brokers to work relatively closely to make sure that the target market determination is available in time to meet the regulations required. It's against the regulation for brokers to sell a product that doesn't have a target market determination and for this reason the Australian legal council confirmed that he felt that it was in our interests to work alongside the insurer. We have since had similar meetings with a number of insurers. It's something that is being done across the industry, simply because without an insurer product brokers don't have a product to sell.’

[109] Ms Rea also said the applicant’s hostile attitude to the Company was her signalling, on more than one occasion, of an intention to make a protected disclosure, and she did so. It was found to be unsubstantiated and the applicant has not taken it any further (details withheld due to statutory restrictions on publicising details).

[110] Ms Rea denied she was prejudiced against the applicant. She recalled Ms Tran’s email of 31 January 2020, suggesting the applicant leave the Team because the relationship was ‘unsalvageable’. In fact, Ms Rea told Ms Tran that this was not possible and the issues needed to be worked through. Ms Rea denied starting to work with HR at this point to exit the applicant from the business. Ms Tran’s email does not suggest she, or HR agreed, with her course of action. Ms Rea did not see the need to verify everything Ms Tran said was true. She formed a view after her own dealings with the applicant.

Ms Kordek

[111] In cross examination, the applicant agreed she was highly educated. She holds three Masters degrees, a Bachelor of Science, a Juris Doctor and a Graduate Diploma of Legal Practice. She has worked in legal or quasi legal roles since 2014, having clerked at the Land and Environment Court in 2014, worked at Hunt & Hunt in 2015 and held two in house counsel roles from 2016 until commencing employment at Marsh. She had commercial negotiation skills. She believed she was joining Marsh as a Technical Consultant, but this became a demotion. Having already resigned, she had no option but to accept it at the time. She did not know what a junior employee meant, but she never had to manage anyone, other than herself.

[112] The applicant agreed she had worked at more than eight different places since joining the respondent. She believed that, despite being a lawyer, negotiating her terms of employment was illusory as it was always presented on a ‘take it or leave it’ basis. The applicant said she was apprehensive about leaving a legal role as the profession was ageist, particularly towards women, and once she left it was a ‘point of no return’. When Ms Tran hired her, she mentioned something about team dynamics, which she was unsure about.

[113] Ms Lopes took the applicant to her self-assessment as self-starting, a quick learner, emotionally intelligent, ethical and an honest team player. While agreeing ‘team player’ meant someone working collaboratively with others, she stated that if others are putting up walls, it becomes dysfunctional. She did not accept that an employee should ‘sheepishly’ follow every direction of a manager and had a right to speak up if something is believed to be wrong. She believed people have different ways of working and this should be accommodated. Communication is not just one way.

[114] The applicant was asked about her claim that Ms Tran was ‘cavalier’ about Company policies. She believed her way of invoicing was correct and Ms Tran’s was not. She believed this was unreasonable conduct which prompted her solicitor’s letter. Her ‘professional boundaries’ were exhausted and she just said ‘Look, I’m done’.

[115] The applicant was asked if her understanding of ‘emotional intelligence’ meant a person should be genuine and recognise the impact of their actions on others. She said she did not want to assume how people reacted to her. She did not believe emotional intelligence means someone is genuine. Her purpose in emailing Ms Tran at 4:45am on 31 January 2020, was to explain to her how her actions were affecting her and she wanted it to stop. The impact she hoped for was Ms Tran to correct her behaviour. She did not believe her email would upset her, even though it was sent on her first week back after six weeks of annual leave.

[116] The applicant agreed she emailed her again at 11am that day about her ignoring her in the hallway and claiming an entitlement to respect. She claimed Ms Tran started ignoring her the day before when she refused to order flowers for a work colleague. She denied it would have been more respectful to have arranged a meeting, which were always difficult, with Ms Tran shouting at her. Meetings were unproductive and everything needed to be in writing.

[117] The applicant agreed that there were times she might say something sarcastically or jokingly which is ‘not sort of true’. The applicant was referred again to her title change of Technical Associate. She said Ms Tran told her that she would have difficulties with other Team members, who regarded themselves as specialists, if she came in with no insurance background at their same level (this was not mentioned in her statement). She accepted she did not object at the time, but felt she had no choice. Ms Lopes suggested she said the exact opposite; ‘Thank you. I think the email signature is a good idea and I have no problem with it’. She said it would not have been a problem, if it was presented in a different way. She just went along with it. She did not believe in being demoted for her own good. She denied being dishonest. The same considerations applied when she did not object to starting her job the next day, than earlier agreed. She wanted to give a good impression and expected someone to pick it up later, and pay her for the day.

[118] The applicant was reminded that in an email to Mr Hutchinson on 7 November 2019, she said she had deliberately joined (Marsh) without expectation or preconceptions and that she was happy and enjoying her role. She said she loved her D&L role, which was 60% of her role. She agreed she did not raise the title issue or the one day pay issue in her performance review process. Her experience was ‘managers of a bully, love the bully’ so it was not a good idea to raise these complaints with Mr Hutchinson. However, she had intended to raise the issues with him at some time.

[119] The applicant was asked about Ms Flynn’s redundancy which she found highly questionable. She believed Ms Tran had told her on 23 August 2019 the business was desperate to stop her making a bullying complaint She was ‘gobsmacked’. She believed this was intended to intimidate her from ever making a complaint. She felt like Ms Tran was trying to make her an accomplice in something which did not sound right. She agreed that several days later she wrote a note to Ms Tran which read ‘I think you’re a good boss and I really enjoy working for you’. The applicant denied this note was inconsistent with Ms Tran bullying her. She believed Ms Tran was under pressure and she sent the note to ‘cheer her up’ (when I suggested that this was an example of her being sarcastic, she denied it and said she was genuine in the comment).

[120] The applicant denied Ms Tran had been demonstrating support for her, as she kept making promises, but failed to deliver. On 20 November 2019, she raised concerns about fairness and being respected. She agreed these were serious issues and Ms Tran suggested a meeting which was rescheduled at her request. Then without a meeting, she raised further concerns of unfair treatment. She did not think Ms Tran’s response (that when she raised concerns, she was not prepared to talk about them), was a fair response and it was not clear. She just did not want to talk about the issues, at that point in time.

[121] The applicant believed Ms Tran was demeaning her by making recommendations and providing feedback. It was micromanaging. She kept reminding her to do things. The applicant claimed she was not attacking the person, but she disagreed with certain behaviours and wanted them to stop. She had always responded professionally.

[122] The applicant denied hanging up on Ms Drakes on 6 February 2020. Ms Drakes was pestering her and ignoring her concerns, so there was no point in continuing. The applicant believed her solicitor’s letter of 13 February 2020, demonstrated she wanted to create a respectful working relationship with Ms Tran, notwithstanding she sought to be transferred to the Legal or Compliance Teams. It was Ms Tran who did not want a working relationship and wanted her out. The applicant did not believe the solicitor’s letter was an escalation of her complaints. It was a matter of expedience and she was experiencing symptoms and her doctor had even suggested she go to hospital (there was no evidence of this when I asked for it). She believed the letter was a pro forma letter, notwithstanding a reference to her filing a stop bullying application. While the applicant believed her role best fitted in Compliance, she conceded it was the Company’s prerogative to determine where the role best sat.

[123] The applicant agreed that alleging discrimination and harassment in law is a serious matter. This was not inconsistent with her emotional intelligence, as such behaviour should never occur. She did not believe her making such allegations would cause friction in the working relationship, because she was not the perpetrator and had genuinely believed she was being harassed and discriminated against.

[124] The applicant maintained her view that Ms Tran had surreptitiously tripled her work remit, even though Ms Rea gave evidence that it was on her instruction. She believed Ms Tran was behind it. She also believed Ms Lopes’ letter to her seeking medical certificates, was also discriminatory and harassing. She went to HR about her hours of work because Ms Rea had made statements about work conditions, which turned out to be incorrect. She believed Marsh was also failing in its health and safety responsibilities towards her, and no measures were taken to protect her. The applicant claimed she spoke to the Anti-Discrimination Board (‘ADB’) about participating in an investigation while on sick leave (there was no corroborative evidence of this contact and it was never mentioned in her statement).

[125] The applicant considered by 4 May 2020, Ms Tran had been involved in misconduct. It was not necessarily bullying, because timing is important. She stated Ms Rea was not a suitable person for the role she was in. She had neither the skills for the role and was unfair towards her. She said at the time ‘A company that allows my health to be put in jeopardy is not a company that I ned work for’, but did not believe this comment demonstrated a breakdown in the employment relationship. Nor was it untenable for her to name a number of managers and allege they had engaged in discrimination, misrepresentation and bullying (while at the same time, seeking reinstatement).

[126] The applicant claimed she still had friends at Marsh and when I asked where their evidence is, the applicant said she could provide text messages. I denied her request to adduce further evidence and said:

‘No. You don't produce - this is what you have been doing throughout this proceeding, drip-feeding material when you think your case might be slipping away? … You are not permitted. You were issued with directions which you are required to comply with’.’

[127] In further cross examination, the applicant said that Ms Rea was prejudicial against her, because Ms Tran had ‘been in her ear for many months’ and did everything possible to paint her in the poorest light. This was insidious – sick and twisted.

[128] In respect to Ms Roberts’ investigation, the applicant agreed she had the opportunity to review the witness transcripts and had made a few changes. She claimed she was truthful and honest in her three interviews. In one transcript, she had said:

‘You're saying there was an intent from the beginning, before you even started, and that's the reason that she asked you to - … Well, I think, yeah. I mean, my - if you ask me why all of this has happened, my theory is I said because Isabel's a bully and she is doing it because she can, because the organisation has allowed and normalised it for some time’.

[129] The applicant confirmed that this serious allegation continued to be her belief. She also told Ms Roberts that Ms Tran avoided putting things in emails for ulterior purposes, because ‘bullying thrives on secrecy’ and ‘plausible deniability’. This was despite Mr Normand’s evidence that having meetings was typical in the business. The applicant then claimed that bullying managers go to HR and they work together to put someone on a PIP and then unfairly dismiss them. The applicant described her view of HR as a ‘healthy distrust’.

[130] The applicant denied having done anything inappropriate. She not engaged in a hostile manner with Ms Tran and had not challenged Ms Rea’s authority. She could not comment on Ms Rea’s feelings towards her. The applicant was referred to her emails to senior Marsh staff after her dismissal, in which she continued to protest her dismissal, accuse Ms Tran and others of bullying and harassment, and claim she had no opportunity to respond to the allegations. She believed she had always acted in the best interests of the respondent.

SUBMISSIONS

[131] At this juncture, I note that both parties relied on their written submissions lodged in accordance with my directions. At the request of the applicant, the parties filed written closing submissions, in lieu of oral submissions.

For the respondent

[132] In written submissions dated 16 September 2020, Ms Lopes confirmed the nature of the respondent’s business and the applicant’s employment as set out in the witness statements of Mr Normand and Ms Rea. I need not repeat it here.

[133] Turning to valid reason, Ms Lopes said that the respondent took immediate steps to minimise contact between the applicant and Ms Tran following the issues outlined above being raised, and changed the applicant’s line of reporting to Ms Rea. It was determined by Mr Normand that the employment relationship had broken down. Ms Lopes submitted that the respondent had a valid reason to terminate the applicant, citing the ‘impact of cumulative inappropriate interactions with her colleagues’; see: Carroll v Karingal Inc [2016] FWC 3709 (‘Carroll’) at [62].

[134] Ms Lopes claimed that the respondent had lost trust and confidence in the applicant’s ability to perform her role, which posed a health and safety risk to other employees. She described the applicant’s interactions as ‘aggressive and hostile’, resulting in the breakdown of the employment relationship.

[135] Regarding the meeting on 31 July 2020, Ms Lopes submitted that the applicant was notified of the reasons for her termination at this meeting, after she was already notified of the outcome of the investigations into her workplace complaint, amongst other things. The applicant was informed that the reason to terminate her employment was the manner in which she engaged with her colleagues, as opposed to her having unsatisfactory work performance. Ms Lopes put that the termination of the applicant’s employment was an appropriate and proportionate response, taking into account the health and safety of other staff members, adversely affected by the applicant’s conduct.

[136] Turning then to remedy, Ms Lopes said that it would be inappropriate to reinstate the applicant as there had been a complete breakdown in the relationship, and the respondent had lost faith that the applicant could perform her role in the future; see: Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 (‘Perkins’), cited in Nguyen v IGA Distribution (Vic) Pty Ltd [2011] FWA 3354 at [40]. In the alternative, if the Commission were to consider compensation, the applicant had only been employed for 18 months, and had been paid four weeks’ pay in lieu of notice. It would therefore be inappropriate for the Commission to award any compensation in such circumstances. If the Commission were to award any compensation, it should be reduced to reflect the applicant’s misconduct.

For the applicant

[137] In detailed and lengthy written submissions dated 8 October 2020, prepared by the applicant’s former legal representative, Mr S Howe of Turner Freeman Lawyers, the applicant contended that the dismissal was ‘harsh, unjust and unreasonable’, pursuant to s 387 of the Act, and that reinstatement is an appropriate remedy. I do not intend to recount that which has been summarised from the applicant’s witness statement.

[138] In summary, it was put that the applicant’s dismissal, was ‘harsh, unjust and unreasonable’ because:

‘a. there was no valid reason for the Applicant's dismissal in respect of her capacity or conduct;

b. the reasons for the Applicant's dismissal were not provided to the Applicant at the time of the dismissal, have changed over time and the Applicant was not offered an opportunity to respond to them;

c. the meeting at which the Applicant was terminated was conducted in such a way that the Applicant was unreasonably precluded from having a support person present;

d. the size and resources of Marsh mean that it should be held to a high standard in respect of the procedures that it adopts in respect of disciplining and dismissing employees;

e. the dismissal wash (sic) harsh, because:

i. dismissal was a disproportionate response to the alleged conduct/performance;

ii. the Applicant's personal and financial circumstances;

iii. the difficulties in finding further employment in the context of the COVID-19 pandemic; and

iv. the Applicant's acknowledged good performance.’

[139] After setting out the background to the application, the applicant turned to the Ms Roberts’ report into Ms Tran’s conduct. Whilst it did not make any findings which were adverse towards Ms Tran, it does not make any findings or recommendations in respect to the applicant’s conduct. The report does not demonstrate that the applicant behaved aggressively, nor does it demonstrate inappropriate behaviour to a standard that would justify her dismissal.

[140] Although it was said that the applicant’s communications are ‘direct’, it was not put to her that this type of communication was inappropriate. Had it been put to her that she should communicate in a different manner, there is no evidence to suggest that she would not have complied. Overall, the Investigation Report is not a basis for the respondent to conclude that the applicant’s behaviour was inappropriate.

[141] The applicant referred to the cases cited by the respondent in its opening submissions, and distinguished her conduct from those in Carrol, Froelich, and Stratton. In Carroll, it was the applicant who was the subject of investigation, which did not occur in this case. That case also involved overt and verbally aggressive conduct by the applicant which was investigated. In Froelich, that case involved physically aggressive behaviour. To suggest that email communications are in a similar category as physical aggression should be rejected by the Commission.

[142] The applicant then turned to the alleged ‘health and safety concerns’ of the respondent. If such allegations are to be made, they should only be accepted if the requisite standard is met; see: Law v Groote Eylandt Mining Company Pty Ltd T/A GEMCO [2018] FWC 1824. This should include:

a. the seriousness of the breach/incident;

b. company policies setting out safety procedures and consequences for breaches and whether employees have been trained in them;

c. whether the incident/breach was isolated or recurring in nature, and

d. whether or not the employee concerned was a supervisor and expected to set an example.

see: Scoffern v The Griffin Coal Mining Company Pty Ltd [2020] FWC 3201.

The applicant denied that she was a health and safety risk to other employees, nor does the Report make any findings of this kind.

[143] The applicant proceeded to deny the findings of the Report; namely, that she was not treated fairly or with respect by Ms Tran. Instead of Marsh dealing with the problems, the issues between her and Ms Tran continued. She said that ‘workplace disagreements and conflict are not uncommon occurrences’, and if not managed properly, they can escalate. Disagreement and conflict do not constitute a valid reason for dismissal. She further said that allegations about her conduct were raised in about November-December 2019, but as they were not dealt with at the time, they could not have been taken seriously.

[144] Turning then to the remaining subsections of s 387 of the Act, the applicant said that:

•  she was not notified of the purported reason in plain and explicit terms prior to the 31 July 2020 meeting (s 387(b));

•  she was not provided with the reasons for dismissal until the decision to terminate her employment was made, and the dismissal was solely on the basis of the findings in the Worklogic Report (s 387(c));

•  had she known the 31 July 2020 meeting would be a dismissal meeting, she would have had a Union support person. Given she was not aware of this, it was an unreasonable refusal due to the nature of the way the meeting was scheduled; see: Champion v All Lifting & Safety Pty Ltd ATF All Lifting & Safety Trust T/A All Lifting [2016] FWC 6285 (s 387(d));

•  she was good at her job, and performance should be considered a neutral consideration in this matter (s 387(e));

•  Marsh is a large employer, and its process, notwithstanding the respondent having in house counsel, was ‘plainly deficient for an employer even of modest means’ (ss 387(f)-(g)); and

•  there are limited opportunities for work due to the ongoing COVID-19 pandemic. This has restricted her ability to find work. She is likely to suffer significant hardship. Marsh took no steps to advise her of any unsatisfactory performance or conduct, and therefore, dismissal was a disproportionate response (s 387(h)).

[145] The applicant submitted that reinstatement in this instance is not inappropriate. She relied on a number of cases; namely, Nguyen; Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 at [27]; Anthony Smith & Associates Pty Ltd v Sinclair (1995) 67 IR 240, Colson v Barwon Health [2000] FCA 627 at [42], Perkins and Technical and Further Education Commission T/A TAFE NSW v Pykett [2014] FWCFB 714, and put that the onus is on the respondent to establish that any alleged inappropriateness of reinstatement is soundly based. This case should be decided on its own facts. She said that Marsh relied on an alleged loss of trust and confidence, which is only one of a number of relevant considerations. There is no ‘magic formula’ in this regard to resist reinstating her, and a finding of a loss of trust and confidence must be made on an objectively reasonable and rational basis.

[146] The applicant said that firstly, the alleged loss of trust and confidence cannot be soundly based, merely on the findings of the Report. It does not make recommendations as to her conduct. Although there was some conflict, the ‘employment relationship should be understood to have some resilience in the face of friction’.

[147] Secondly, the applicant said there is no evidence that she would be resistant to changing her behaviour, especially as Marsh never made any efforts to repair the relationship consequent to the outcome of the Investigation. She said she would be willing to undergo mediation and training, if necessary. Even if the relationship between her and Ms Tran cannot be restored, this should not prevent reinstatement. Her role was an ‘anomaly’ and she is not in a position where she is confined to working in a small team, as she could also work in the Finance Team. Finally, it is also open to the Commission to order reinstatement, without specifying a particular position that she can work in, subject to it being on no less beneficial terms.

[148] In the alternative, the applicant said that if the Commission found reinstatement to be inappropriate, there are relevant factors which it should consider when awarding compensation:

‘a. the Applicant enjoyed her job and fully intended to stay in the job for a long time.

b. the Applicant was assessed as being good at her job, as evidence by her successful passing of probation and performance appraisal.

c. the Applicant remains unemployed and has not earned any remuneration since her dismissal.’

[149] In accordance with the authorities of Shorten v Australian Meat Holdings (1996) 70 IR 360 and Sprigg v Paul’s Licensed Festival Supermarket (1998) 8 IR 21, compensation should be awarded of no less than 26 weeks’ pay.

Closing submissions

For the respondent

Ms Lopes submitted that:

•  it was acceptable to add the title ‘Associate’ to the applicant’s email chain, due to her lack of experience in the insurance sector;

•  the applicant accepted delaying her start date from 4 February 2019 to 5 February 2019; and

•  there was no reason for Mr Tran to consider the applicant had any pressing issues at the commencement of her employment, as she said to her ‘I’m really excited about joining your team’.

[150] It was put that the applicant was being dishonest to Ms Tran, by not telling the truth about having issues with the commencement of her employment at the time. As a legally trained experienced professional, the applicant could have raised the issues with Ms Tran at the time. Her failure to do so commenced a breakdown in the relationship between the applicant and Ms Tran, which Ms Lopes described as ‘deep-seated distrust towards Ms Tran’. This was demonstrated by the two issues being raised as allegations of bullying in the letter from the applicant’s lawyer to the respondent, dated 13 February 2020.

[151] Ms Lopes then turned to the ‘theories’ that the applicant had about Ms Tran’s alleged bullying towards her. Ms Lopes said Ms Tran was not a bully, and that the respondent had allowed and normalised such behaviour over time. The applicant also alleged in her solicitor’s letter, that the redundancy of another employee in August 2019 was an example of bullying. This was denied and again demonstrated the distrust the applicant had towards Ms Tran throughout her employment with the respondent.

[152] Ms Lopes gave further examples from the applicant’s evidence, including her interactions with Ms Drakes and Mr Hutchinson to demonstrate the inconsistencies of the applicant’s evidence. On one hand, she would state that she was ‘happy and enjoying her role’ in November 2019, but on the other hand, she claimed she also felt ‘reprimanded’ at the same time. The applicant’s letter from her solicitor demonstrated that her intention was to escalate her complaints, which resulted in a breakdown in the employment relationship.

[153] In turning again to the respondent’s valid reason to dismiss the applicant, Ms Lopes referred to Commissioner Cirvovic’s finding in Carroll. In that decision, it was found that notwithstanding whether it was the applicant’s intention to bully people, the emphasis should be placed on its effect on an applicant’s conduct against other people, rather than whether the bullying itself can be substantiated. Similarly, there is little dispute in this matter as to whether the applicant actually engaged in such communications with other staff, particularly Ms Tran. It was submitted that such communications were ‘often hostile and pointed’.

[154] Further, Ms Lopes referred to the decisions of Froehlich v Nissan Motor Corporation (Australia) Pty Ltd [2014] FWC 5622 (‘Froelich’), Stratton v Hidden Valley Handicrafts [2014] WAIRComm 1258 (‘Stratton’) and Bartlett v Ingleburn Bus Services Pty Ltd t/a Interline Bus Services [2020] FWC 2914 (‘Bartlett’), which found that repeated inappropriate and hostile behaviour, even if this does not involve yelling or shouting, constitutes a valid reason for dismissal. Although single instances of behaviour in this regard may not result in a finding of misconduct, collective behaviour over a period of time can demonstrate a valid reason for dismissal; see: Bartlett at [54].

[155] Turning then to procedural fairness, Ms Lopes confirmed that the applicant was notified of the termination of her employment via Zoom on 31 July 2020. The applicant was given an opportunity to respond to the investigation’s findings, which she chose not to do. In again referring to Bartlett, and also the decision of Deputy President Asbury in Sully v CBMG North Pty Ltd [2020] FWC 3509, it was submitted that even if the applicant was provided with a greater opportunity to respond to the allegations, it would not have changed the respondent’s position in characterising her conduct.

[156] Finally, Ms Lopes confirmed that reinstatement of the applicant would be inappropriate given the untenable working relationship between the applicant and the respondent, and that there has been a complete loss of trust and confidence, and a breakdown in the employment relationship. There would be no role available for the applicant to return to, and that her return to the Technical Services Team, or any other role, would be untenable. The applicant had repeatedly stated that she does not trust her managers and has raised serious unsubstantiated allegations against the respondent.

For the applicant

[157] In closing submissions, the applicant repeated much of what is said in her written submissions above. Where the material overlaps, I will not repeat it here. In considering whether her dismissal was ‘unjust’, she invited the Commission to consider:

•  Ms Rea’s position that she did not raise any alleged concerns with me because she felt ‘I would go on sick leave again’ or that there would be ‘disagreement’ or ‘some disgruntled rebuttal’ as unjustified; and

•  the possibility that the respondent’s evidence reflects selfish motives of individuals to defend themselves and maximize negative impressions about me after I raised a complaint against Ms Tran; see: The Applicant v General Manager and Company C [2014] FWC 3940.

[158] Regarding unreasonableness, the applicant said that there was no evidence to suggest that her concerns were not genuinely held or considered valid by her, or that she did not make them in good faith and for a proper purpose: see; Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271. Given she was told to particularise her complaints, it is unreasonable for the respondent to complain that she did so. She said that she only engaged a solicitor as she was unwell at the time, and this is supported by her medical evidence. It is unreasonable for the respondent to complain that she was following its own policies and procedures, or that she has rights to bring claims under workplace laws or instruments.

[159] The applicant said that there was no evidence to suggest that she was being obstructive in resolving concerns with the respondent. She was conscious of the impact her complaints might have, and sought to minimise the disruption to the respondent and its employees. She had regard for the wellbeing of others, and assisted others, even when she was on sick leave.

[160] The applicant asked the Commission to consider the possibility that Mr Normand and/or Ms Drakes thought it would be easier to get rid of her because they considered her ‘troublesome’ as a result of her making complaints or inquiries regarding her employment. It was never put to her in the proceedings that she had a ‘deep seated distrust’ of the respondent, as put by Ms Lopes in the respondent’s closing submissions. She said the Commission should agree that a ‘healthy distrust’ is entirely reasonable. She said that a healthy distrust:

‘is no more than what prevents an employee from being naïve and gullible. It protects the employee (and by extension the employer’s business) from being taken advantage of by unprincipled actors. Only an untrustworthy actor could ever have a problem with the notion of healthy distrust’.

[161] Turning then to harshness, the applicant said that Mr Normand ‘has a very peculiar view of what constitutes fairness in dismissal that leaves much to be desired’. She said his behaviour was ‘unnecessarily callous’ when he did not respond to her inquiry as to whether the 31 July 2020 meeting needed to be in person. Given her health issues, he did not ‘act decently’ towards her.

[162] The applicant again pressed that reinstatement would not be inappropriate in the circumstances. She displayed equanimity towards the respondent, is an intelligent person, and there is no reason why she could not move on from this experience and work in her former role or for a different Team. She also said that Ms Tran no longer works for the respondent.

[163] The applicant pointed to a number of ‘adverse inferences’ that the Commission should consider in the respondent’s case. She said that it was contradictory that she received a pay rise at the same time that the respondent allegedly had concerns with her conduct. There was no evidence to suggest that she received the alleged ‘draft email’, nor was there any evidence that Mr Hutchinson or anyone else responded to it. Further, any alleged misconduct is contradicted by the fact that Ms Rea merely mentioned to Mr Hutchinson that ‘developmental feedback discussions’ might be afoot.

[164] The applicant said that it was of note that Ms Tran was not called to give evidence. The file note by Ms Tran referred to in the respondent’s closing submissions was post-dated (it was headed 8 November 2020, when the document appears to have only been created on 12 November 2020). In a similar vein, it is notable that Ms Drakes was not called to give evidence. There was nothing to suggest that she documented any discussions with her, nor was there any evidence that Mr Normand had discussions with Ms Drakes in reaching his decision, or that Ms Drakes took any action in response to the allegations.

[165] Finally, the applicant turned to the conduct of Mr Normand and Ms Rea. She said that he provided her no opportunity to respond to her alleged conduct, and that he conceded he took the Report and its attachments ‘as gospel’. He cherry picked negative comments, failed to undertake the required investigations, and used them as a ‘specious pretext’ for her dismissal. Ms Rea exaggerated the alleged difficulties she had with her, and the Commission should consider that Ms Tran had prejudiced Ms Rea’s view of her. When Ms Rea conceded in the hearing that she felt ‘relief’ when the applicant was on sick leave, this was ‘an unfortunate reflection of her placing her own self interests above legitimate company interests. Notwithstanding this, she does not distrust Ms Rea and believes she can continue to have a working relationship with her.

CONSIDERATION

Statutory provisions and relevant authorities

[166] An unfair dismissal is defined at s 385 of the Act. That section is to be read in conjunction with s 396. The two sections read:

385 What is an unfair dismissal

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

(a) the person has been dismissed; and

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

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

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

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

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

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

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

[167] Specifically, I find as follows:

(a) the applicant was dismissed at the initiative of the employer on 31 July 2020;

(b) the applicant is a national system employee and Marsh is a national system employer (ss 13 and 14);

(c) the applicant’s unfair dismissal application was lodged within the 21-day time limit set out at s 394(b) of the Act;

(d) the applicant completed the minimum employment period set out at ss 382 and 383, being 18 months; and

(e) the applicant’s employment was governed by a contract of employment and a modern award, the Finance, Banking and Insurance Award 2010 (s 382(b)(ii)).

[168] It follows that the only matter required to be determined in this case is whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’, pursuant to s 385(b) of the Act and, if so, whether, and what remedy should be ordered under ss 391 and 392 of the Act. It is to those questions I now turn.

Meaning of ‘harsh, unjust and unreasonable’

[169] The matters required to be taken into account by the Commission under s 387 of the Act are:

(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.

Whether there was a valid reason for the applicant’s dismissal (s 387 (a))

[170] The meaning of valid reason in s 387(a) is drawn from the judgement of North J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (‘Selvachandran’). This meaning has been considered and applied by members of the Commission and its predecessors for many years. For example, in Rode v Burwood Mitsubishi Print R4471, a Full Bench of the then Australian Industrial Relations Commission (‘AIRC’) discussed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996, and by citing Selvachandran, the Full Bench said at [17]-[19]:

‘[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:

“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. 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 upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.’

See also: Nettleford v Kym Smoker Pty Ltd (1996) 69 IR 370.

[171] In B, C and D v Australian Postal Corporation t/a Australia Post [2013] FWCFB 6191, a majority of the Full Bench (Lawler VP and Cribb C) dealt with breaches by a number of employees of Australia Post’s IT policies, in respect to the sending, receiving and sharing of pornographic material. The plurality said at [34]-[36]:

‘[34] In considering whether there was a valid reason for a dismissal under s.387(a), the reason(s) being considered are the employer’s reason(s). In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1).

[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.’

[172] The above authorities (and many more), make clear that a ‘valid’ reason must be ‘sound, defensible or well founded’ and not ‘capricious, fanciful, spiteful or prejudiced.’

[173] Further, the Full Bench of the Australian Industrial Relations Commission said in Container Terminals Australia Limited v Toby [2000] Print S8434 at [15]:

‘[15] In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable: see generally Department of Justice v Hepburn (1999) 93 FCR 508, at 512-513 and cases cited therein. The focus of the consideration is upon the employer and the basis for his decision to terminate rather than upon its consequences for the employee. "What has to be examined is the validity of the reason, and its connection with the employee's capacity or conduct or its basis in operational requirements of the employer": see Qantas Airways Ltd v Cornwall (1998) 83 IR 102, at 106. In making such an examination "it is not the court's function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee's capacity or conduct..."; see: Walton v Mermaid (1996) 142 ALR 681, at 685.’

[174] Although not expressly described as misconduct, Marsh characterised the applicant’s conduct as a significant and an irreparable breach of trust and confidence in the employment relationship and a risk to the health and safety of its other employees. In this context, the definition of serious misconduct in the Act’s Regulations has some resonance. Regulation 1.07 sets out a non-exhaustive definition as follows:

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer's business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee's employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment. (my emphasis)

[175] It may be accepted that Marsh’s conclusions as to the nature of the applicant’s conduct was in breach of the highlighted provisions in the Regulation above. In cases of dismissal for misconduct, the onus rests on the employer to prove, to the Commission’s satisfaction, that the misconduct had in fact occurred. While this evidentiary onus must be discharged on the civil onus of proof (on the balance of probabilities), the more serious the allegation, the higher the burden on the employer to prove the allegation. In Briginshaw, at page 362, Dixon J said:

‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’

[176] Further, in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, the High Court said:

‘The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.’ (footnotes omitted)

[177] That the Commission for itself, must be satisfied that the misconduct occurred is well-established by the authorities of this Commission and its predecessors. In King v Freshmore (Vic) Pty Ltd (2000) Print S4213, a Full Bench of the Australian Industrial Relations Commission (‘AIRC’, as the Commission was then styled) said at [24], [26], [28] and [29]:

‘[24] 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.

...

[26] As we have noted above, s.170CG(3)(a) obliges the Commission to make a finding as to whether there was a valid reason for the termination of employment. In circumstances where a reason for termination is based on the conduct of the employee the Commission must also determine whether the alleged conduct took place and what it involved.

...

[28] It is apparent from the above extract that his Honour answered the question of whether the alleged misconduct took place on the basis of whether it was reasonably open to the employer to conclude that the employee was guilty of the misconduct which resulted in termination. This is not the correct approach. The Commission’s obligation is to determine, for itself and on the basis of the evidence in the proceedings before it, whether the alleged misconduct took place and what it involved.

[29] In our view the Senior Deputy President failed to determine for himself whether Mr King was guilty of misconduct in the way alleged by Freshmore and he should have done so as part of determining whether the termination had been harsh, unjust or unreasonable. When the reason for a termination is based on the misconduct of the employee the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The absence of such a finding leads us to conclude that the member below failed to properly determine whether there was a valid reason for the termination of Mr King’s employment.’ (my emphasis)

[178] Even accepting that a finding of misconduct was open to Marsh, such a finding must not be confused with the statutory language. The statutory instruct still requires the Commission to find that there was a valid reason for dismissal (s 387(a)). In Royal Melbourne Institute of Technology v Asher [2010] FWAFB 1200, a Full Bench of Fair Work Australia (FWA, as the Commission was then styled) relevantly held at [16]:

‘[16] In the circumstances of this matter the University purported to terminate Dr Asher’s employment for serious misconduct within the meaning of that term in the University’s enterprise agreement. If it successfully established that Dr Asher had engaged in serious misconduct it would necessarily follow that there was a valid reason for the dismissal. However, the converse is not true. As established by Annetta, the question that needed to be considered was whether there was a “valid reason” in the Selvachandran sense – whether the reason was sound, defensible or well founded. Whether it also amounted to serious misconduct may well be a factor relating to the overall characterisation of the termination but it was not an essential requirement in the determination of whether a valid reason exists.’

Opening remarks

[179] It is difficult to know where to begin in a case such as this. It is appropriate, I think, to make a number of general observations which have relevance to the facts and circumstances of this matter.

[180] First, the making of formal allegations/complaints by an employee which are subsequently found to be trivial or vindictive and/or unsubstantiated, may constitute a sound and defensible basis for the employee’s dismissal and be a valid reason dismissal in accordance with s 387(a) of the Act; see: Hanrick v Meridian Lawyers [2018] FWC 3256. Such a finding is a fortiori when the same allegations are the basis for a whistleblowing complaint which is similarly found to be without substance.

[181] Second, it is common for allegations of bullying or harassment by an employeeto be motivated, not by a concern for their own health or safety, but by silly and trivial personality clashes between work colleagues, or worse, vindictiveness, revenge, retaliation or jealousy for the accused person/person’s position or authority; see my earlier arbitrated decision in Cao v Metro Assist Inc; Rita Wilkinson [2016] FWC 5592.

[182] Third, it is sometimes the reality that the person who alleges they are being bullied, turn out to be the bully themselves. This results in the person/s accused of such serious matters, being subject to workplace gossip and ridicule with the often-sad outcome that it is their health and safety which is adversely affected and at risk, not the accuser’s. So much was evident in this case from the emotional and psychological effects on Ms Tran, Ms Rea and Ms Drakes (which I accept) from the relentless and unjustified campaign by the applicant against them.

[183] Fourth, in my experience, and I suspect those of my colleagues, the vast majority of stop bullying applications under s 789FC of the Act, are brought by persons who are the subject of disciplinary or performance issues and the application is used to deflect attention from their own shortcomings, to allegations against others. Invariably, the disciplinary or performance processes are immediately suspended while the employer, quite properly, undertakes an investigation, or engages an external investigator for that purpose. Obviously, this is time consuming, costly, and very stressful for all concerned. The result of deflection or deferral is achieved, but the adverse implications for the workplace are enormous.

[184] Fifth, it is very rare, for a person who makes unsubstantiated allegations against others, to accept the outcome of any investigation, be it internal or investigation, or even both. Such was the case here, where the applicant not only refuses to accept the outcome of Ms Roberts’ investigations, but accuses her of not conducting her inquiry fairly and not taking into account her views. It is just that the applicant would not accept any outcome she did not like, and seeks to unreasonably and unfairly discredit any investigation, unless it is completely vindicates her allegations against Ms Tran and others. I suspect, the applicant will take the same view about my conclusions in this matter.

[185] Sixth, invariably, the person who claims to be the victim of workplace bullying/harassment will provide medical certificates from a GP for absences said to relate to the stress and anxiety they are experiencing. The applicant here provided medical certificates (dated 6 March, 13 March, 27 March, 16 April, 29 April, 30 April and 29 September 2020) and a psychiatrist’s letter dated 5 March 2020. The psychiatrist’s letter reads:

‘I am writing in my capacity as the treating psychiatrist for Ms Kordek. She is presently affected by symptoms and is unable to attend to her usual responsibilities at work. I recommend a period of leave today for one week, to help her recover.’

However, in my view, a person who is motivated by mala fide intent, will not tell the doctor the full story and the Doctor will not have any contrary view from the employer. In any event, I consider that unless there is cogent, detailed specialist evidence from a psychologist or psychiatrist (which the above quoted letter is not), a GP’s cursory acceptance of whatever the patient tells them, and the psychiatrist’s brief letter of 5 March 2020, should be treated with some caution. I also note that the medical certificates provided do not disclose any medications prescribed for the applicant, or further specialised treatment. My own observations of the applicant, in person, over three days, does not disclose a person who was suffering from stress, anxiety or heightened emotions; rather, she appeared entirely confident, argumentative and dogmatic, even to the point of hubris and disdain for anyone who disagreed with her.

[186] Seventh, as to the applicant’s preference for all communications being by email and conversations being backed up by email, let me make it abundantly clear. There is no requirement for every communication between a manager and an employee, or between employees, to be by email. If this was so, a business would soon grind to a halt. I am constantly amazed that employees working side by side, see the need to communicate by email. It is wasteful and unproductive and in some cases, intended to create a paper trail for ulterior purposes. One might have expected that a person at the applicant’s level, and with her education, would act constructively and professionally, in face to face meetings with managers, rather than a barrage of emails about the same topics, sent at all hours of the night and day, with an expectation of immediate answers.

[187] Eighth, it is very important, I draw a distinction between a person who is perfectly capable of performing their job and has no performance issues, with the same person whose poor conduct, hostile interactions with colleagues and defiance of management directions, makes them virtually impossible to manage and causes untold disruption and discontent in the workplace. Such was the case with the applicant here. Ms Rea’s evidence is telling in this regard. Accepting the applicant’s work skills were very good, Ms Rea said she was very ‘difficult’ to manage; see: [27] above. In my view, the applicant conflated the fact that performance issues were not raised with her, with the effect on performance by her continued defiance of Ms Tran and Ms Rea’s authority and her unacceptable conduct towards them and others. Not only did the applicant consider she was the ‘star’ performer, but she believed she knew more about the business than anyone else in management and told them so.

[188] Ninth, there is no doubt that the conduct and behaviour of the applicant was inconsistent with the trust and confidence expected in the employment relationship. When coupled with the obvious risk to the health and safety of her work colleagues, the respondent’s decision to dismiss her was not only open to the employer, but to my mind, was the only sensible, practical and logical decision the employer could have made.

[189] Tenth, it is unnecessary for an employer or an Investigator, to interview and take statements for every person involved in a particular allegation or complaint. Moreover, it unnecessary for an employer to seek statements from every person for the purposes of Commission proceedings. It is only necessary to have evidence from the relevant decision maker, persons who conduct meetings with the employee and witnesses to incidents of misconduct, or those who are involved in managing poor performance. In my view, the respondent complied with all its obligations in this respect. I shudder to think how many days this case would have taken if the applicant was let loose on cross examining Ms Drakes, Ms Boothby, Ms Tran and others who might well have been asked to provide statements. The strategic decisions taken in this respect were thoughtful, sensible and avoided unnecessarily prolonging the proceedings. While it might be thought unusual that the other main person in this case (Ms Tran) did not provide evidence, I am well satisfied that the prospect of the applicant cross examining her, posed a significant risk to her health and wellbeing. Her fears and anxiety in dealing with the applicant and her manager, let alone being the subject of her questioning in a legal setting by the applicant, were perfectly understandable and a risk not worth taking. There can be no criticism of the respondent for its decision not to call her to give evidence.

[190] Eleventh, it is very unusual for an employee to engage a solicitor to raise concerns about issues in the workplace before the employer has conducted an investigation, or even received a formal complaint. To suggest that Mr McArdle’s letter of 13 February 2020, was an ‘unemotional’ letter, is nonsense. It sets out the applicant’s list of allegations, makes demands on the employer and makes veiled threats of legal action. It was entirely inappropriate and unnecessary and a complete overreach in response to the applicant’s allegations.

Findings on witness credit

[191] I turn now to the witness evidence. In my opinion, the applicant was not a credible or believable witness. The preponderance of her cross examination was unresponsive, self-serving and argumentative, including by raising new matters for the first time. While she appeared very well rehearsed, when questioning got a bit tough, she just made up her answers on the run or raised new matters. For a well-educated person, including with a law degree, the applicant’s approach to her own cross examination was mystifying and inexplicable.

[192] A cursory glance of the transcript discloses that almost every answer of the applicant was another opportunity for her to make unresponsive, long-winded speeches, and implausible excuses and explanations. She consistently refused to answer simple direct questions and went off on long rambling, self-serving rants about how poorly she had been treated and how horrible Ms Tran and others were. The applicant’s reluctance to accept, or even concede that which was otherwise self-evident, was a deeply troubling aspect of her evidence. Her dogged belief that she had done absolutely nothing wrong and all her actions and communications were fair and reasonable, was to my mind, breathtaking in its disconnect from reality.

[193] Despite Ms Lopes’ best efforts and patience, she could have rightly objected to the applicant’s answers on numerous occasions. I suspect she understood that by letting the applicant have free rein, she was only ‘digging a bigger hole’ for herself.

[194] Given Ms Rea’s direct management of the applicant for the last six months of her employment, she was as best placed as anyone to observe and comment on just how difficult the applicant was to manage. I found Ms Rea to be an impressive, thoughtful and careful witness whose evidence was entirely consistent with Ms Roberts’ findings of fact about the applicant’s unsubstantiated allegations against Ms Tran and others.

[195] Ms Rea’s statement was straightforward, unadorned by exaggeration or hyperbole. She gave a persuasive assessment of how difficult the applicant was to manage and its deleterious impact on her personally, when she tried to do so, with little cooperation or positive result. Ms Rea was firm and authoritative in cross examination and displayed commendable restraint and patience with the applicant’s questioning. Although sometimes appearing quite stressed in the witness box when recounting her unpleasant experiences with the applicant, this was perfectly understandable and reinforced the believability of her evidence.

[196] Mr Normand was the decision maker, but had not been a direct party to the applicant’s conduct and behaviour. The applicant took unfair advantage of this by subjecting him to almost two days of cross examination, in which she attempted to trick him into answering questions about the nature of the other evidence and asking his views on hypothetical or general propositions Mr Normand could not possibly be expected to recall every tiny or insignificant incident and email. Her cross examination was unfair.

[197] Despite the applicant laboriously asking and arguing with Mr Normand about each of the allegations and if they were a risk to a person’s health and safety and contributed to the breakdown in the employment relationship (admittedly at my suggestion, which I regret), this line of questioning took the applicant’s case nowhere. I agree with each of Mr Normand’s characterisations of the applicant’s allegations and complaints, as found to be unsubstantiated by Ms Roberts.

[198] In my view, Ms Roberts’ investigation and Report were balanced, detailed, thorough and exhaustive. Her approach was empathetic, entirely appropriate and professional. She interviewed relevant persons and made sound findings of fact, on the balance of probabilities. Despite the applicant’s nit-picking attempts to discredit Ms Roberts and her report; see: Ms Robert’s cross examination above, these attempts were singularly futile and unsuccessful.

[199] I have read the full report, the witness interviews and relevant documents. While I am obviously not bound to accept Ms Roberts’ analysis and findings, and I must make my own findings and conclusions, in substance, the Report is entirely consistent with my own assessment and conclusions.

[200] It is worth noting that not only did Ms Roberts investigate all of the applicant’s then allegations, she invited her to raise any more issues of concern. Unsurprisingly, the applicant embraced this invitation with even more trivial and baseless claims, which Ms Roberts dealt with, and found to be without substance.

[201] In summary then, where the applicant’s evidence conflicts with Ms Rea, Mr Normand and Ms Roberts’ evidence, it is their evidence which I prefer. I return to the provisions of s 387 of the Act.

Was there a valid reason/s for the applicant’s dismissal?

[202] In over two decades on the Bench, and observing thousands of dismissed employees, I have never encountered an applicant with such an extraordinarily high opinion of themselves and their competence, which is delusional, divorced from reality and totally inconsistent with their actual conduct and behaviour in the workplace. Her glowing self-assessment is not better demonstrated by para 5 of her amended statement which deserves repeating:

‘I describe myself as a self starting, quick learner, emotionally intelligent, ethical and honest team player who is technically skilled in a range of disciplines.’

Perhaps this explains why the applicant has had so many short term jobs in the public and private sectors in her career.

[203] Regrettably, the applicant is slyly clever, supremely overconfident, manipulative, imperious, completely self-obsessed and some might say, a somewhat unpleasant individual. She agreed she is sarcastic and makes jokes which are untrue. Her cross examination, and her tone (obviously not reflected in this transcript) was dripping with sarcasm. It was exampled when a few days after complaining Ms Tran was a bully and a harasser, the applicant described her in a note as ‘the best boss ever’.

[204] The applicant had either little comprehension of the hurt and anxiety she was inflicting on others, notably Ms Tran, Ms Rea and Ms Drakes and the damage she was causing to the Team and the business as a whole, or she set out on a planned and vindictive course to deliberately do so. I will let the reader to be the judge.

[205] Of course, the applicant sought to demonstrate, through her many emails, that she was always willing to work with Ms Tran and cooperate with the Team. However, her actions, conduct and views, even in the same emails, demonstrate the complete opposite. This was an example of her clever and manipulative tactics. It was obvious, insincere ‘double speak’, which she had no intention of following.

[206] Throughout the case, the applicant did not accept a skerrick of responsibility for her appalling conduct, and not a whiff of empathy for the hurt she was causing. Her complaints began even before commencing employment and escalated exponentially over the course of 18 months. Unsurprisingly, she displayed no contrition or remorse. Everyone else was in the wrong, she knew best about a business (she had no experience in), and her conduct and behaviour was perfectly reasonable and understandable. With respect, she is very much mistaken. Her submissions are not borne out by the overwhelming preponderance of the evidence to the contrary.

[207] For these reasons, and in consideration of all the evidence, I am well satisfied there were valid reasons for the applicant’s dismissal in that she engaged in numerous incidents of inappropriate conduct, amounting to misconduct. She made serious, unsubstantiated allegations against Ms Tran and others, which she knew to be false, trivial or explicable. None of these allegations amounted to bullying or harassment. In truth, the applicant was the bully, not the bullied. Her actions and conduct posed a risk to the health and safety of work colleagues and constituted a fundamental and irreparable breach in the trust and confidence of the employment relationship.

Further matters to be considered under s 387 of the Act

[208] Subsections 387 (b)-(e) of s 387 are generally grouped under the rubric of ‘procedural fairness’ or ‘natural justice’ issues. To highlight the importance of procedural fairness issues, in unfair dismissal cases, I cite three authorities on the subject. In Crozier v Palazzo Corporation Pty Limited t/as Noble Storage and Transport (2000) 98 IR 137 (‘Crozier v Palazzo’), a Full Bench of the AIRC said at [73]:

‘As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment.’

[209] In Wadey v YMCA Canberra [1996] IRCA 568, Moore J made clear that an employer cannot merely pay ‘lip service’ to giving an employee an opportunity to respond to allegations concerning an employee’s conduct. His Honour said:

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

[210] Nevertheless, procedural fairness steps should be applied in a common sense and practical way. In Gibson v Bosmac Pty Ltd (1995) 60 IR 1 (‘Gibson’), Wilcox CJ said at [7]:

‘Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.’ (my emphasis)

[211] In a recent decision of the Full Bench, the following principles were enunciated as to sub-ss 387(b) and (c) of the Act. In Bartlett v Ingleburn Bus Services Pty Ltd t/as Interline Bus Services [2020] FWCFB 6429, the Full Bench said at [19]:

‘[19] The relevant principles as to the meaning and application of s 387(b) and (c) are well-established. They may be summarised as follows:

(1) Each of the matters specified in s 387, including those in paragraphs (b) and (c), must be taken into account as matters of significance, to the extent that they are relevant to the particular case at hand, and given due weight.

(2) Proper consideration of s 387(b) requires a finding to be made as to whether the applicant has been notified of “that reason” – that is, the reason for dismissal relating to the capacity or conduct of the applicant found to be valid under s 387(a) – prior to the decision to dismiss being made

(3) Proper consideration of s 387(c) requires a finding to be made as to whether the applicant has been given a real opportunity to respond to the reason for dismissal. As a matter of logic, unless the applicant has been notified of the reason, it is difficult to envisage that it could be found that the applicant has been afforded an opportunity to respond to that reason.

(4) Once findings are made in relation to s 387(b) and (c), they may then be weighed together with the other matters required to be taken into account in order to form a conclusion as to whether the applicant’s dismissal was harsh, unjust or unreasonable. Where it is found that the applicant was not notified of the reasons for dismissal and/or was not given an opportunity to respond, a relevant consideration as to the weight to be assigned to this is whether this meant that the applicant was deprived of the possibility of a different outcome in terms of avoiding his or her dismissal.’

Whether the employee was notified of the reason for her dismissal – s 387(b)

[212] While the applicant was not strictly told of the reasons for her dismissal in the termination letter, there can be no doubt that the applicant knew, or would have been expected to know, that making serious unsubstantiated allegations against other employee and manager, might result in her dismissal. The reasons for dismissal do not need to be the same reasons in the termination of employment letter. It would have been a termination letter of mammoth proportions, if all the allegations and conclusions reached as to her conduct, were set out in the letter. In any event, in my view, the letter captured the gist of the reasons for dismissal; see: Singh v Sydney Trains [2020] FCA 1521. The applicant well knew what lay behind these reasons.

[213] The applicant’s allegations had been the subject of an external investigation and she was interviewed three times. It cannot seriously be suggested that she did know what the invitation on 23 July 2020 to attend a meeting with Mr Normand to present the Investigator’s findings, might be. As was said in Gibson, approved by Northrop J in Selvachandran:

‘Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section. That was the situation in the present case.’

[214] I consider this was also the situation in this case. Nevertheless, for abundant caution, I am prepared to accept that this factor weighs in favour of a finding of procedural unfairness.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person – s 387(c)

[215] The applicant was invited to respond to the Investigator’s findings in the dismissal meeting, but she chose not to. Nor did she seek another meeting to further challenge the respondent’s decision. Her immediate reaction was to foreshadow an unfair dismissal claim; see: [61] above.

[216] On her own evidence, the applicant insisted all communications be by email and she would not engage in ‘face to face’ discussions with her managers. Given this history, it is difficult to see how she would have engaged in any meaningful, or constructive way if she had been provided with a longer ‘show cause’ process. Given this, I also note that given the applicant was paid four weeks’ in lieu of notice. In my view, any further period of time for her to respond, would not have been greater than one or two weeks. I also accept that the applicant’s continued presence in the workplace amounted to an unacceptable risk to the health and safety of work colleagues. Mr Normand believed he had to act promptly to protect his other employees I accept this explanation. Nevertheless, it would have been preferable to have expressly warned the applicant that the 31 July 2020 meeting was a dismissal meeting and that she should have been provided with the Investigator’s findings at least 24 hours before the meeting.

[217] That said, I am prepared to accept that the applicant should have been given an opportunity to respond to the two reasons for her dismissal as set out in the dismissal letter, although it would be unlikely to have been productive. Ultimately, of course, it could not be said the applicant was caught by surprise with her dismissal or the result of her being able to respond to a ‘show cause’ letter would have made any difference to the outcome. I reject her evidence that she was shocked by the decision.

Nevertheless, this factor weighs in favour of a finding of procedural unfairness.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal – s 387(d)

[218] There was no evidence the applicant asked for a support person to attend the meeting on 31 July 2020, which she must have known was serious. She had previously had a support person for an earlier meeting and she had a week’s notice of the 31 July 2020 meeting. This is a neutral factor in this case.

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

[219] There was no evidence of any unsatisfactory performance of the applicant; in fact, Ms Rea’s evidence is to the contrary. As the applicant was not dismissed for this reason, this is not a relevant consideration in this case.

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

[220] Marsh is a large international company with dedicated HR expertise and advice and established practices and a Code of Conduct. HR was actively involved in the processes leading to the applicant’s dismissal. This is a neutral factor in this case.

Any other matters the Commission considers relevant – s 387(h)

[221] The applicant did not have long service with Marsh. I accept, and have taken into account that she has experienced financial pressures, stress and anxiety from having been dismissed. However, she would not be ‘Robinson Crusoe’ in this respect, comparing any employee who is dismissed. In any event, I do not consider any mitigating factors outweigh the seriousness of the applicant’s conduct, her refusal to acknowledge any fault, her failure to apologise for her conduct, express any contrition or remorse and her failure to recognise the hurt and anxiety she has caused, despite claiming to be ‘emotionally intelligent’. One need not look further than the Oxford Dictionary definition of ‘emotional intelligence’, described as:

‘the capacity to be aware of, control, and express one’s emotions, and to handle interpersonal relationships judiciously and empathetically.’

Unfortunately for the applicant in this case, her conduct amounts to the antithesis of such qualities.

[222] In respect to her failure to apologise or acknowledge any wrongdoing, in Hilder v Sydney Trains [2019] FWC 8412, I referred to a decision which is relevant to a question of the reinstatement of an employee where a valid reason is found for the employee’s dismissal. At [126] I said:

‘I refer to a recent Full Bench decision of the Commission in Hatnell v Esso Hatwell v Esso Australia Pty Ltd t/a Esso [2019] FWCFB 2895 which granted permission to appeal on two public interest grounds; one being:

‘(1) the appeal raises a significant issue of general application concerning the relevance to the evaluation of the appropriateness of reinstatement of a failure on the part of an unfair dismissal remedy applicant to apologise or acknowledge wrongdoing, in circumstances where there has been found to be a valid reason for dismissal based on the applicant’s misconduct’.

Later in the decision, the Full Bench said at [28]-[29]:

‘[28] Mr Hatwell’s first ground of appeal concerns the Deputy President’s conclusion that Mr Hatwell’s failure to apologise or acknowledge wrongdoing in respect of the misconduct which the Full Bench found constituted a valid reason for his dismissal was a matter which weighed determinatively against a finding that reinstatement was appropriate. It cannot in our view be reasonably contended that this was not a material consideration. In circumstances where Mr Hatwell had been found to engage in misconduct constituting a valid reason for his dismissal, but that there were mitigating factors which rendered the dismissal harsh, a critical issue was necessarily whether there were grounds for confidence that Mr Hatwell would, if reinstated, not engage in the same or similar conduct again having regard to the continuing presence of Mr Flens and other employees of the maintenance contractor at the Longford site. The role of an apology or an acknowledgment of wrongdoing in that context was explained in the Full Bench majority decision in Mt Arthur Coal Pty Ltd v Jodie Goodall as follows:

“[78] The primary issue which arose for consideration before the Commissioner in respect of remedy was whether there were proper grounds for confidence that Mr Goodall would, if reinstated, never again engage in conduct of the type which occurred on the night shift of 10-11 November 2015. That confidence was what was necessary to make the employment relationship workable. As we have already stated, the Commissioner with the advantage of having seen and heard Mr Goodall give his evidence was persuaded that he had a sufficient understanding that his conduct was inappropriate, unacceptable and not to be repeated. Nothing which has been put to us by Mt Arthur Coal has articulated a proper basis for the Commissioner’s findings in this respect to be disturbed on appeal. That being the case, there was a reasonable and rational basis for the Commissioner to conclude that Mr Goodall would be able to regain the trust of his colleagues and thereby re-establish a viable working relationship.”

[29] The circumstances of the proceedings here meant that once the question of remedy was remitted by the Full Bench to the Deputy President for determination, Mr Hatwell had the opportunity to give evidence, or make a statement via his counsel, to demonstrate that he understood that the conduct which was found to constitute a valid reason for his dismissal was “inappropriate, unacceptable and not to be repeated” such as to form a basis for confidence that a viable working relationship could be re-established. This might have taken the form of an apology to Mr Flens, an acknowledgment that the conduct he was found to have engaged in was wrong, or a commitment to never engage in such conduct in the future and to treat fellow workers with respect. However Mr Hatwell declined to take advantage of this opportunity, and as a result we consider that it was reasonably open to the Deputy President to conclude, as he did, that this meant there was a risk of a recurrence of the behaviour if reinstatement was granted, and to treat this as a matter of determinative weight.’

[223] I have also taken into account that the applicant continued to agitate her grievances and sense of unfairness with senior company managers after her dismissal. She said:

‘I just wanted to say that the number one reason that I raised my whistleblowing and bullying complaints about my immediate manager was because this manager was actively interfering with my work complying with insurance statutory charges

This included her attempts to prevent me me (sic) from complying with external audits conducted by a Regulator last year

I complained because there was an ongoing legal, regulatory, and financial risk for MMC

I raised my complaints in good faith

I raised my complaints in line with MMC policies and processes

I had nothing to gain from my complaints

I had the interests of MMC in mind

I hold myself to the highest standards of integrity and conduct

Any deviation from these standards is unacceptable to me

My conduct has been besmirched with allegations of incidents where others 'felt uncomfortable' around me because I was 'hostile' towards them

Apparently these incidents have occurred throughout my 18 month employment

Yet nothing was said during my 6 month probation

Nothing was said at my annual performance review at the beginning of the year

Nothing was said until yesterday, when it was given as the reason for my immediate termination at a meeting that I was told was to discuss the outcome of my bullying and whistleblowing complaints

I was not given any opportunity to respond to these allegations

My response to these allegations is that my immediate manager was responsible for fostering a hostile work environment

I raised my complaints in a genuine attempt to resolve the situation with MMC

In my complaints I have only asked that MMC follow its own rules as set out in Greater Good and its mental health, harassment, and other workplace policies

Thank you again

Geena Kordek’

Conduct post dismissal is a relevant consideration in respect to a finding of valid reason for dismissal; see: Shepherd v Felt and Textiles of Australia Ltd [1931] HCA 21 and Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1. While this was not an example of further misconduct, it serves to demonstrate that the applicant was very selective about what she told the senior managers. It bore no resemblance to the reality.

[224] Lastly, although I need not go to remedy, given the applicant’s hostility and animus towards the respondent’s managers, her accusation that Marsh ignored her complaints and failed to properly investigate them, her failure to acknowledge any wrongdoing and giving no assurances she would act any differently in the future, the prospect of the applicant being returned to the workplace in any role is utterly unthinkable. It could not be accepted under any circumstances and for the applicant to suggest she is a ‘team player’ and happy to take directions, is palpable nonsense. I am at a loss to understand, indeed it beggars belief, how the applicant could possibly sustain a submission that her reinstatement was appropriate, because the employment relationship had not broken down. It was shattered and destroyed. The applicant relied on a number of Commission authorities as grounds for her reinstatement. In my judgement, all of the cases she cited demonstrate precisely why the applicant should not be reinstated.

CONCLUSION

[225] For the abovementioned reasons and in weighing all of the matters the Commission is required to take into account under s 387 of the Act, I am satisfied that the applicant’s dismissal on 31 July 2020, was not ‘harsh, unjust or unreasonable’ or unfair. Finally, s 381(2) of the Act is a significant overarching object of Part 3-2 – Unfair Dismissal of the Act. It is expressed as follows:

381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in Re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.

[226] In my judgment, the outcome in this case is consistent with the object of Part 3-2 of the Act of providing a ‘fair go all round’ to both the employee and the employer.

[227] Accordingly, application U2020/10422 is dismissed and these proceedings are concluded. I so order.

DEPUTY PRESIDENT

Appearances:

The applicant appeared for herself.

Ms K Lopes, Partner, and Ms K Sullivan, Solicitor, Collins Biggers and Paisley Lawyers appeared for the respondent

Hearing details:

2020.

Sydney:

21 October
22 October
12 November.

Printed by authority of the Commonwealth Government Printer

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Appendix ‘A’