Fair Work Commission|2025-07-25

Kelly Pritchard v Commonwealth of Australia as represented by Services Australia [2025] FWC 2002 (25 July 2025)

The attached document replaces the document previously issued with the above code on 25 July 2025 and the previous refile issued on 29 July 2025.

Typographical errors previously corrected on 29 July 2025:

Paragraph [14] corrects "20 July 2025" to "20 July 2022".

s.394 - Application for unfair dismissal remedy

Commonwealth of Australia as represented by Services Australia

[1] On 28 April 2025, Kelly Pritchard (Ms Pritchard) filed an application pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act) seeking a remedy in relation to unfair dismissal with respect to her former employer, Commonwealth of Australia as represented by Services Australia (Services Australia).
[2] The application was the subject of a hearing conducted in the Commission at Melbourne on 9 July 2025. Ms Pritchard advocated for herself at the hearing. Services Australia was granted permission to be represented by a lawyer pursuant to s 596(2)(a) of the Act, and Ms Julie Zhou of Counsel appeared for Services Australia.
[3] Prior to the hearing both parties filed Statements of Evidence and Outlines of Argument in relation to their respective positions. The materials filed by Ms Pritchard were not in the form as directed and were comprised of a series of somewhat rambling emails which were difficult to follow. On 4 July 2025, in an effort to address this issue, I conducted a case management hearing in which I suggested to Ms Pritchard that she file a further witness statement to ensure she drew to my attention all of the matters she wanted me to have regard to. I provided Ms Pritchard until 4:00PM Monday 7 July 2025 to file a further witness statement and any further material she wished me to have regard to in this matter. Ms Pritchard did not take up this opportunity to file further material

[4] The materials filed by the parties are voluminous. I have had regard to all of the material filed, even where not specifically referred to in these reasons. The following summarises the evidence based on my findings in relation to it.
[5] Services Australia is an Executive Agency of the Commonwealth Government responsible for administering social security and welfare payments. Its functions were formerly undertaken by the Commonwealth Department of Human Services, previously known as the Department of Social Services, when Ms Pritchard's employment began in 1996.
[6] Ms Pritchard's employment continued until it was terminated on 8 April 2025. By this time Ms Pritchard had been employed for twenty nine years and eleven months. Throughout that period, she had worked for the various iterations of the relevant Government Agency responsible for administering social security and welfare payments, which eventually become known as Services Australia.
[7] For much of her career Ms Pritchard worked as a "Service Officer" and was involved "debt raising" - the calculation and raising of debts within the compliance areas of what is now Services Australia. The debts in question generally arise from an overpayment or incorrect payment made to a recipient of social security or welfare payments (or similar). An investigation may be conducted as to what caused the overpayment or whether the debt is legally recoverable. Once the debt is "raised" the Service Officer will contact the recipient of the payment (described as "the customer"). The conversation with the customer must occur in accordance with an "Operational Blueprint" and will generally involve an explanation of the debt, payment and right to review. If the customer disagrees with the decision to raise the debt, the Service Officer can refer the debt to a Review Officer or a Subject Matter Expert.
[8] "Debt recovery" is a different process which involves contacting customers in relation to a debt and establishing a debt recovery action. Services Officers can perform both debt raising and debt recovery processes. Ms Pritchard was sometimes involved in debt recovery work, as well as other types of work within the remit of the Agency now known as Services Australia.
[9] Conversations between Service Officer and customers can be stressful for both parties. Activities such as these were the subject of a Royal Commission into a system known as "Robodebt" which was well publicised for its findings as to the significant risks associated with debt recovery activity relating to social security payments for recipients and for the people carrying out the work[1]. Ms Pritchard worked for the former iteration of Services Australia during the period of the conduct of the Robodebt Scheme.
[10] It is important that high standards are attached to the performance of this work. Sub-standard performance could mean that Australia's social security system is not administered in accordance with law which could lead to significant financial and legal consequences. The stress that can arise for recipients and Services Australia employees alike warrant controls and limits on the nature of the administration of the system at is cold-face - the exchange between Services Australia employees and recipients. Tools such as standard operating procedures (however described) and quality control mechanisms are applied by Services Australia to achieve the standards required of the work
[11] Ms Pritchard's employment was terminated after she was the subject of a performance management process conducted under the Department of Human Services Agreement 2017-2020[2] and the Services Australia Performance Management Policy, which ran over the course of more than 12 months, beginning on January 2024 and ending when Ms Pritchard's employment was terminated on 19 April 2025.
[12] Services Australia asserts that it had a valid reason to terminate Ms Pritchard's employment arising from performance issues that were identified, and which resulted in the implementation of the performance management processes, and the fact that those issues persisted despite the performance management processes. It has been necessary for me to focus on those processes and the assessment of Ms Pritchard's performance during this period to determine this matter. There were also rather vague references made in some of the evidence to conduct issues relating to Ms Pritchard. This evidence was not expanded upon before me, nor was I pressed to take it into account. Given that some of it is of a slightly personal nature, largely untested and not said to be the basis upon which Services Australia terminated Ms Pritchard's employment I consider that to avoid any unnecessary embarrassment or indignity for Ms Pritchard (over matters which are not proven) it is unnecessary to refer to that evidence.
[13] In July 2021, Ms Pritchard took on a temporary role as a Senior Support Officer, triaging formal reviews for an area of Services Australia involved in appeals and reviews. This temporary role was extended and ceased in July 2022.
[14] After this role ceased, on 25 July 2022, Ms Pritchard returned to work at the Payment Assurances Operations Branch of Services Australia (POA Branch), in the POA Heatherton Team 3. She initially worked at the Mornington Office but shortly after returning to the POA Branch moved to the Bentleigh Office. In this team she returned to working in debt raising. The team also performed some debt recovery functions which Ms Pritchard was also involved in.
[15] Ms Pritchard's supervisor was Ms Jayde Salter, who is the Team Manager of POA Heatherton Team 3. Not long after Ms Pritchard returned to the POA Branch, Ms Salter decided to downgrade Ms Pritchard's "proficiency rating" from "Proficient" to "Learner". This decision was permissible under Services Australia's "Operational Blueprint" in circumstances including where a person had taken a long period of leave or had been undertaking different duties. These were Ms Pritchard's circumstances - where she had not raised a debt for about 12 months because she had been working in the appeals and reviews areas.
[16] The alteration of Ms Pritchard's proficiency rating to that of "Learner" meant that she was subjected to more scrutiny in respect of her work that would otherwise be the case. All of her work was checked prior to being finalised on the record, as opposed to smaller samples of work had she been rated as "Proficient".
[17] To some extent a controversy appears to have arisen between Ms Pritchard and Ms Slater as to whether Ms Pritchard's proficiency rating should have been downgraded, or whether it should have been upgraded at some point. It appears clear to me that whether the rating should have been upgraded at some point or not, any such action was in any event subsumed by the performance management processes which ensued from the beginning of 2024.
[18] During the last few months of 2023, Ms Salter began to form concerns about Ms Pritchard's performance. Some of the concerns arose through Ms Salter's scrutiny over Ms Pritchard's work, such as listening in to her calls with customers - scrutiny which was consistent with the nature of Ms Salter's role as the Team Manager. The nature of the concerns were, in particular, instances in which Ms Salter considered Ms Pritchard had engaged with customers in a way that was inconsistent with the Operational Blueprint, such as by providing customers with superfluous or unauthorised comment or information beyond the scope of what is required by the Blueprint.
[19] Ms Slater's concerns led her to decide to implement an "Informal Support Plan" in relation to Ms Pritchard. This was provided to Ms Pritchard on 17 January 2024 and involved weekly reviews over six weeks against three targets: (1) for Ms Pritchard's average handling time of calls to meet the team average; (2) for quality call listening assessments to result in the achievement of minimum standards; and (3) for Ms Pritchard to sustain 95% "Quality On Line" accuracy. When Ms Salter provided this plan to Ms Pritchard, she advised that, should the targets not be met, a formal "Back On Track" Plan (BOT) would be implemented.
[20] Additional supports were provided to Ms Pritchard during the operation of the Informal Support Plan, including Team Leader and Quality Development Officer (QDO) assistance and an hour each week scheduled for reviewing feedback as part of learning and development. Ms Pritchard said in her evidence that not long after the commencement of the plan, much of the quality checking began to occur virtually, and sometimes the quality assist person was either learning in their own role, or "stretched" and not always able to assist. Notwithstanding these complaints, the evidence shows a significant level of interaction between Ms Pritchard and her supervisor during this period around the goals set in the plan, including a weekly meeting specifically to discuss supports required to meet the plan objectives.
[21] Ms Pritchard conceded in her evidence that during the six weeks of the Informal Support Plan she was unable to meet all three goals set in any one week. It was considered that she had not met the goals of her Informal Support Plan. As a result, Ms Pritchard was placed on a "Back on Track Plan" (BOT Plan).
[22] A BOT plan is a similar process to that of an Informal Support Plan. In Ms Pritchard's case, the BOT plan was to run from 25 March 2024 to 7 June 2024 but, due to Ms Pritchard taking leave, was extended until 6 September 2024. Services Australia argued that the standard of performance set by the plan was lower than that involved in the Informal Support Plan because, based on Ms Pritchard's feedback and input into the plan, only two goals were set: (1) to meet 5 quality call standards on 80% of calls listened to, and (2) to attain and sustain 95% "Quality On Line" accuracy. A third goal - relating to average handling times - was discarded. Again, during the plan, Ms Pritchard was provided with additional support including a weekly meeting with her supervisor in which support and feedback was provided, additional support provided by Quality Development Officers and the opportunity to sit and observe colleagues in their performance of similar skills
[23] On at least one occasion during the BOT plan Ms Pritchard was able to query why a particular assessment had been made in relation to one of her observed calls, and, upon review, have the negative assessment reversed to positive.
[24] By the time of the BOT plan's conclusion Services Australia considered that Ms Pritchard had not meet the targets. Over the period Ms Pritchard was assessed as having met both goals set in only one of the ten weeks. In three of the ten weeks, Ms Pritchard did not meet either goal. In the extremely detailed record of Ms Pritchard's performance during the plan (which also includes her own week-to-week response to the assessments made), examples are provided of her failure on several occasions to carry out or adhere to the required "privacy and secrecy" process to verify a customer's identity, providing customers with inaccurate information, leaving customers on hold for excessive periods, not managing to maintain her composure in discussion with a customer and at times providing customers with unnecessary or superfluous information (such as informing a customer that her own work would be "double checked", opining on the child support system or that "the system needs a kick up the bum from our end").
[25] After the conclusion of the BOT, in discussion with Ms Slater, Ms Pritchard expressed the central complaints she continues to maintain about this process: (a) that it is subjective, and (b) that the goal of achieving a 95% "Quality On Line" rate is unachievable. In relation to Ms Pritchard's complaint about subjectivity, I consider that while the assessment of matters such as the language and tone she used with customers is to some extent subjective, the evidence shows the assessments made were based on objectively set standards which attempt to confine the nature of conversations between Service Officers and customers only to certain matters over which, presumably, Services Australia considers it can exercise more control of information quality. The assessments were not made by one person, but by various people, including Quality Assurance Officers and Ms Salter.
[26] Ms Pritchard's contention that a 95% Quality on Line rate is unachievable has more merit. This goal essentially requires that in 95% of the matters Ms Pritchard handled, she made no mistakes in her entries into the system or engagement with the customer, as per the required guidelines, such as the Operational Blueprint. It means that if Ms Pritchard handles 20 such cases in a week, she can afford only one mistake or fail to achieve the objective. Ms Pritchard's evidence, which I accept, was that often a Service Officer will not handle 20 activities in a week. This means in effect that only a perfect score is satisfactory.
[27] In answer to this criticism, Services Australia refers to the overall importance in the proper administration of Australia's social security system and the adverse consequences that can arise if mistakes are made. It says that the target of 95% accuracy is an organisational-wide goal. There is merit in this explanation. It seems to me that in respect to matters such as the accurate recording of the identity of customers, providing accurate information and adhering to the limits set as to the nature of customer interaction, an extremely high standard of accuracy is a justifiable work requirement.

[28] As a result of not having been assessed as meeting the objectives of the BOT plan, and in accordance with its processes for managing underperformance, Ms Pritchard was placed on an eight week Formal Performance Counselling (FPC) plan.
[29] Ms Salter gave Ms Pritchard a copy of the FPC plan on 24 September 2024. In a meeting held on 26 September 2024 to discuss the plan, Ms Salter told Ms Pritchard that if she did not meet the expectations set out in the plan, a potential outcome was the termination of her employment, making reference to the relevant part of the enterprise agreement which provides as such. This was later confirmed in an email Ms Salter sent Ms Pritchard on that day. In the discussions with Ms Pritchard during this period she was also informed on several occasions of her right to have a support person present in the meetings held to discuss the plan and in meetings held during its operation.
[30] The FPC was due to run over an eight week period commencing on 30 September 2024 until 22 November 2024. This timeframe was adjusted to 1 October 2024 to 18 December 2024 due to Ms Pritchard taking leave during the relevant period.
[31] Once again, the objectives set out in the FPC plan were that Ms Pritchard (1) meet quality call standards on 80% of calls listened to, and (2) attain and sustain 95% "Quality On Line" accuracy. Similar supports as provided during the Informal Support Plan and the BOT were provided, including a weekly meeting to discuss the plan with Ms Salter. During the FPC plan, on several occasions a representative from Ms Pritchard's Union, the CPSU, also attended weekly meetings.
[32] Whereas in relation to the BOT Plan, Ms Pritchard took up the opportunity afforded to her to provide feedback to many of the assessments provided each week against the plan, Ms Pritchard did not provide much of her own written feedback in relation to the FPC during its conduct.
[33] Services Australia determined that Ms Pritchard did not achieve the objectives set out in the FPC plan. Over the period Ms Pritchard was assessed as not having met both goals set in any of the eight weeks and neither goal in five of the eight weeks. Another very detailed record was kept (and provided in evidence) of Ms Pritchard's performance during the plan. Examples are provided of her failure on several occasions to carry out or adhere to the required "privacy and secrecy" process to verify a customer's identity, providing customers with inaccurate information or straying into areas in which she was not trained, leaving a customer on hold for long periods (on one occasion described as a period that was "incredibly long") and at times providing customers with inappropriate or superfluous information or using colloquial language (such as informing a customer on one occasion that "I'm about to lose my job anyway so why not"). It also records discussions having been had with Ms Pritchard during the period as to quite low levels of work being completed during some of the later weeks of the plan. She was also counselled about taking extended breaks. Also during the later weeks in the plan, the feedback provided to Ms Pritchard that she confine her work and her engagement with customers to those areas required by the Operational Blueprint - perhaps the central concern with her performance throughout the entire period of her performance management processes - became more pronounced.
[34] Prior to finalising the FPC Plan, when meeting with Ms Pritchard about it, Ms Salter again asked her to provide any comments she wished to make. Ms Pritchard again did not take up this opportunity.
[35] Ms Salter compiled the final assessment in relation to the FPC Plan on 20 December 2024 in which she made a recommendation that Ms Pritchard's employment be terminated. She sent the final assessment to the Services Australia's human resources area and to Ms Pritchard.
[36] In early 2025, the National Manger, Workplace Relations Branch of Services Australia, Mr Steven Cooney, was briefed in relation to Ms Pritchard. Mr Cooney has the relevant delegation to terminate employment due to misconduct, poor performance or excessive or authorised absence. This brief which had been compiled based on the performance management processes recommended the termination of Ms Pritchard's employment.
[37] Mr Cooney said in his evidence that upon receiving the brief, he requested more information including whether Ms Pritchard had been directly involved in the Robodebt Royal Commission or had sought support offered to employees impacted by that investigative process. The evidence appears to indicate that Mr Cooney was told Ms Pritchard had not been directly involved in the Royal Commission and had not sought support.
[38] On 22 January 2025 Mr Cooney caused a letter to be provided to Ms Pritchard which advised that Services Australia was considering terminating her employment on the basis of unsatisfactory work performance. It invited Ms Pritchard to provide reasons as to why her employment should not be terminated.
[39] Mr Cooney received several responses from and on behalf of Ms Pritchard during the first half of February 2025, including from her Union, the CPSU. In the substantive response provided by Ms Pritchard, she challenged the integrity of the performance management process, especially in relation to Ms Salter, who Ms Pritchard alleged had subjected her to excessive, unfair and biased scrutiny. On the evidence before me, while it is clear enough that Ms Pritchard was never particularly happy about the performance management processes she was being subjected to, these were the first occasions on which she directly challenged the legitimacy of the process and Ms Salter's role in it.
[40] Ms Pritchard's Union, the CPSU, advocated on her behalf as to her long standing tenure, experience and the things she has achieved during her employment. The Union argued that Ms Pritchard's performance assessment during the performance management processes was "mixed" and at times "came close" to meeting objectives and also urged Services Australia to take into account the effect of the Robodebt scheme over participating staff (such as Ms Pritchard) and the personal effect termination of employment would likely have for her.
[41] The evidence before me does not support the challenges raised by Ms Pritchard in relation to the process she was subjected to. On the evidence before me, her performance was assessed by a range of different people, including Ms Salter but also a variety of quality control and other personnel. The standards applied to her were objective, not biased. The level of scrutiny arose because of concerns over her performance that were based on objective assessment.
[42] On 28 February 2025 Mr Cooney met with Ms Pritchard and her Union representative to discuss her responses. Arising from this meeting, and based on his consideration of the responses Ms Pritchard had provided to the proposition that her employment would be terminated, Mr Cooney said he was open to exploring transferring Ms Pritchard to an alternative role in another team at a different site, and asked her to consider suitable business areas she would be willing to be transferred to. He asked for her feedback to be provided by 7 March 2025.
[43] Mr Cooney said in his evidence that part of his reasons for making this offer were that Ms Pritchard was a long standing employee, and he was also aware that ceasing work just short of 30 years service may have negative implications in relation to her superannuation entitlements.
[44] During March 2025, several meetings occurred between Mr Cooney and Ms Pritchard and her Union representatives in which discussions occurred about alternative roles and work locations for Ms Pritchard within Services Australia. These were informed by Mr Cooney's efforts to identify a suitable alternative role for Ms Pritchard. It appeared one might be available - a role with Services Australia's child support area, but Ms Pritchard declined this role as being unsuitable.
[45] Ms Pritchard proposed that a role within Residential Aged Care Assessments might fit her skills and experience. There was evidence before me that this option was explored by Services Australia, but there were no positions available at Ms Pritchard's level. Ms Pritchard tendered in evidence a job advertisement for this role which referred to APS-Level 4 (her level) as well as APS Level-3. On this basis she appeared to believe that the assertion that these roles were not available at her level (APS-Level 4) was not true. However, I accept Mr Cooney's evidence that his investigations into this option revealed that the role was not available at Ms Pritchard's level.
[46] Unfortunately, by the end of March 2025, while on the evidence before me it appeared some promising discussions were occurring about the possibility of Ms Pritchard moving into a different role, in the meantime, her performance within the POA Branch continued to deteriorate. The issues which had begun to intensify during her FCP Plan at the end of 2024 - such as dwindling work output, taking extended breaks and continuing to make mistakes - worsened. It also appeared that from Services Australia's perspective the only role available for Ms Pritchard to be redeployed into was the one she had rejected - the Child Services Role.
[47] On 8 April 2025 Mr Cooney caused a letter to be sent to Ms Pritchard advising of her termination of employment. The letter advises that the reason for the termination of her employment is her failure to meet performance expectations and addresses her response to the proposition that the employment be terminated, and the efforts to identify other roles.

Ordering a remedy in relation to unfair dismissal.

[48] Section 390 of the Act provides that the Commission may order remedy if:
1. the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
2. the person has been unfairly dismissed.
[49] Section 396 requires that the Commission decide several matters relating to an application for an unfair dismissal remedy before considering the merits of the application. Those matters are:
1. whether the application was made within the period required in s 394(2);
2. whether the person was protected from unfair dismissal;
3. whether the dismissal was consistent with the Small Business Fair Dismissal Code (the Code);
4. whether the dismissal was a case of genuine redundancy.
[50] It was not argued, nor was it the case that Ms Pritchard's dismissal was a case of genuine redundancy, and her application was made within the period required in s 394(2) of the Act. Services Australia is not a small business, and the Code is not relevant.
[51] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed the person is an employee who has completed a period of employment with her or her employer of at least the minimum employment period; and one or more of the following apply:
1. a modern award covers the person;
2. an enterprise agreement applies to the person in relation to the employment;
3. the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[52] At the time of her dismissal, Ms Pritchard had been employed a period longer than the minimum employment period and her annual rate of earnings was less than the high income threshold. I find that Ms Pritchard was a person protected by unfair dismissal at the time she was dismissed.

[53] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
1. 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
2. whether the person was notified of that reason; and
3. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
4. 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
5. if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
6. 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
7. 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
8. any other matters that the FWC considers relevant.
[54] I am required to consider each of these factors, to the extent they are relevant to the factual circumstances before me[3].

Was there a valid reason for dismissal related to Ms Pritchard's capacity or conduct?

[55] In order to be a valid reason, the reason for the dismissal should be "sound, defensible or well founded" and should not be "capricious, fanciful, spiteful or prejudiced" [4].
[56] It is well established that the reason for termination of employment based on underperformance will be "related to the capacity" of the Applicant where the reason is associated or connected with the ability of the employee to do his or her job[5].
[57] Merely establishing the factual basis for the reason for dismissal does not by itself demonstrate it was a valid reason. Dismissal must be a justifiable response to the relevant conduct or issue of capacity[6]. A reason not of sufficient gravity to justify dismissal is not sound, defensible or well-founded[7].
[58] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer[8].
[59] On the evidence before me, the performance critique in relation to Ms Pritchard was sound and well founded. First, I consider Services Australia was entitled to take the view, as Ms Salter did towards the end of 2023, that Ms Pritchard should adhere more closely to its guidelines as to the manner in which customer interaction should occur, that she should refrain from relating superfluous information in those conversations and stick to the blueprint. Second, despite being given additional assistance and support against objectively set goals, during an Informal Support Plan implemented in January to March 2024, Ms Pritchard was unable to meet all three goals set in any one week of the six week plan based on an objective assessment conducted by a range of different people. During this period, Ms Pritchard made mistakes in her relay of information to customers and continued to be unable to stick to the guidelines for customer interaction. Third, that despite the additional support and assistance continuing during a "Back on Track Plan" conducted across March to September 2024 Ms Pritchard met both goals set in only one of the ten weeks of the plan. In three of the ten weeks, Ms Pritchard did not meet either goal. During this period Ms Pritchard continued to make mistakes (such as in relation to privacy and security verification) and continued to provide customers with unnecessary or superfluous information (such as relating her own personal views about the child support system or saying that "the system needs a kick up the bum from our end"). Fourth, that during a Formal Support Plan implemented in September through to the end of November 2024, Ms Pritchard did not meet both goals set by the plan in any of the eight weeks and met neither goal in five of the eight weeks. During this period Ms Pritchard continued to make mistakes and continued to engage with customers in a way that was inconsistent with guidelines. In the later stages of this plan, she was also counselled about a drop in her workload and taking extended breaks. Fifth, that over the course of these processes, Ms Pritchard's performance got worse, not better. By the end of 2024 Ms Pritchard's output had dropped and issues that had been the subject of the performance management process - accuracy and sticking to the guidelines - continued. Sixth, I consider that that Ms Pritchard's eventual protestation that the entire process was illegitimate and biased had no basis and is unfounded. Seventh, I consider that Ms Pritchard did herself no favours during February and March 2025 when, while under direct threat of termination of employment, Ms Pritchard's output and performance dropped again, and she continued to be counselled for taking extended breaks.
[60] The work Ms Pritchard was required to undertake requires a high standard of accuracy and it is appropriate that a close adherence to guidelines is maintained. Significant support exists to achieve this standard in the form of management support, quality assurance support and other resources - all significantly enhanced during the performance management processes Ms Pritchard was subjected to. Despite this, Ms Pritchard could not meet the standard required of the work. On this basis, I consider Services Australia had a valid reason to terminate her employment based on her capacity.

Was Ms Pritchard notified of the reason for dismissal?

[61] Notification of the valid reason for dismissal must be given to the employee explicitly and in plain and clear terms. But crucially, this must occur before the decision to terminate the employment is made[9].
[62] Ms Pritchard was provided with a copy of the final assessment with respect to the Formal Support Plan by Ms Salter on 20 December 2024. The document contained a recommendation that Ms Pritchard's employment terminated on the basis of her failure to meet the performance standards set out in the plan. On 22 January 2025 she was provided with a letter that said explicitly that Services Australia was considering terminating her employment on the basis of unsatisfactory work performance. Ms Pritchard was given an opportunity to respond to the reasons given. Thus, when she was advised of the decision to terminate her employment she had earlier been notified of the reason so she could respond. Her response, once given, was informed by the relatively comprehensive notification of the grounds which were in the end, the reason for her dismissal. I consider Ms Pritchard was notified of the reason for the dismissal.

Was Ms Pritchard given an opportunity to respond to the valid reason?

[63] An employee protected from unfair dismissal should be notified of a valid reason for the termination of their employment before a decision is taken to terminate that employment so that they can respond to it in such a way as there is an opportunity to influence the ultimate decision[10]. While the opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly[11], the employee must be 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[12].
[64] The process conducted by Services Australia provided Ms Pritchard with this opportunity. The performance issues which ultimately gave rise to the termination of Ms Pritchard's employment were first the subject of performance management at the end of 2023, and Ms Pritchard was supported to address those issues for the entirety of 2024. She was thus provided with a long period of time to address these issues. She was notified formally that termination was being considered by letter on 22 January 2025 and provided with the opportunity to provide a written response. Her response was eventually provided in several emails and a response also provided on her behalf by her Union. The evidence shows that these responses were considered by Mr Cooney in his decision to terminate Ms Pritchard's employment. I consider Ms Pritchard was provided with an opportunity to respond to the valid reason for the termination of her employment.

Did Services Australia unreasonably refuse to allow Ms Pritchard to have a support person present to assist at discussions relating to the dismissal?

[65] There is no evidence before me that Services Australia unreasonably refused to allow Ms Pritchard to have a support person present in discussions relating to dismissal. Support people were present in discussions - during her Formal Support Plan and then during meetings with Mr Cooney during March 2025 when the proposition that her employment would be terminated was being discussed.

Was Ms Pritchard warned about unsatisfactory performance before the dismissal?

[66] Services Australia submitted that Ms Pritchard was "warned", within the meaning of the Act, about unsatisfactory performance before the dismissal, because on 26 September 2024 she was told by Ms Salter that if she failed to achieve the standards set out in the Formal Support Plan this could result in the termination of her employment. It also submitted that throughout the performance management Ms Pritchard understood which aspects of her performance were of concern, had input into the performance goals set, and as such "was well-aware of why the Agency considered her performance to be unsatisfactory, and what she had to improve on in order to avoid potential termination".
[67] I accept that Ms Pritchard was "warned" about unsatisfactory performance before dismissal on 26 September 2024, in terms of it having been made clear to her that her employment was at risk unless the performance issues were addressed[13]. Outside of this specific communication, to some extent, Ms Pritchard was required to deduce that the result of her failure to achieve the performance standards set might jeopardise her employment. Having said that, such a deduction should have been fairly easily arrived at, and I consider that it should have been plain to Ms Pritchard that her employment may be terminated if her performance did not improve. The warning that Ms Pritchard's employment could be terminated if she failed to address the performance issues identified in the performance management processes she was subjected to, both express and implied, weighs against a finding that her dismissal was harsh, unjust or unreasonable[14].

To what degree would the size of Services Australia enterprise or the absence of human resources management specialists or expertise would be likely to impact on the procedures followed in effecting the dismissal?

[68] Services Australia is not a small enterprise and has internal human resources specialisation or expertise. I cannot fault the procedures it followed effecting the dismissal of Ms Pritchard's employment. I do not consider this factor weighs for or against a finding as to whether the dismissal was harsh, unjust or unreasonable.

[69] In giving consideration to whether the termination of Ms Pritchard's employment was harsh, unjust or unreasonable I have given consideration to several other factors. These are:
1. The effect of the termination of Ms Pritchard's employment over her personal and economic circumstances and her long period of service with Services Australia; and
2. Services Australia's efforts to obtain alternative employment for Ms Pritchard.
[70] Ms Pritchard submitted both to the Commission and to Services Australia that the termination of her employment after nearly 30 years employment would have an extremely significant effect over her personal and economic circumstances. There is no doubt this is the case. It is likely that to some extent, having worked in the administration of Australia's social security system for nearly 30 years, Ms Pritchard is institutionalised, and losing her job will be life changing. There was some evidence before me that Ms Prichard is in a defined benefit program in relation to her superannuation entitlements. I did not understand it to be the case that the termination of her employment at the time of the termination will jeopardise Ms Pritchard's eligibility for that program. But having been terminated just short of 30 years service will likely mean the eventual benefit is less than what it would have been, had Ms Pritchard continued to work for longer.
[71] Mr Cooney said it was for precisely these reasons that he sought to find an alternative role for Ms Pritchard. On the evidence before me, these efforts were genuine and rigorous. The effort was to find a role at Ms Pritchard's APS level 4, not at a lower classification, taking into account the detrimental effect on Ms Pritchard's employment entitlements if she were to be engaged at a lesser classification. A role was identified for Ms Pritchard, but she declined to accept it, which is unfortunate.
[72] The efforts to find an alternative role for Ms Pritchard came after an extremely lengthy performance management process conducted over all of 2024. She was in effect provided with additional support to assist her to meet the standards of performance required in her role for the entirety of the year. While the impact of termination of employment for Ms Pritchard is significant taking into account her length of service, I consider she was given every opportunity to avoid that outcome by the process implemented.

[73] Having considered each of the factors set out in s 387 of the Act, I find that they largely weigh in favour of a determination that Services Australia' decision to dismiss Ms Pritchard was not harsh, unjust or unreasonable. In particular, I consider Services Australia plainly had a valid reason for the decision and implemented a process providing Ms Pritchard with procedural fairness in relation to the decision. While several matters relating to Ms Pritchard's personal circumstances mean the consequences of termination for her are no doubt significant, they do not outweigh the other factors which justify the decision.
[74] On this basis the application is dismissed, and an Order[15] will be issued conjointly.

[1] Royal Commission into the Robodebt Scheme (Report, 2023) Vol 1

[2] While the Department of Human Services Agreement 2017 - 2020 has been replaced by the Services Australia Enterprise Agreement 2024 - 2027 it continues to have application to a performance management process commenced prior to 27 March 2024: see Witness Statement of Brigid Anne O'Reilly, 27 June 2025 [27]

[3] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 [14]

[4] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 [373]

[5] Crozier v Australian Industrial Relations Commission [2001] FCA 1031 [14]

[6] Raj Bista v Glad Group Pty Ltd t/a Glad Commercial Cleaning [2016] FWC 3009 [34]

[7] Kylie Smith v Bank of Queensland Ltd [2021] FWC 4 [124], [126]

[8] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681 [685]

[9] Newton v Toll Transport [2021] FWCFB 3457 [182]

[10] Crozier v Palazzo Corporation (1996) 98 IR 137 [73]

[11] RMIT v Asher [2010] FWAFB 1200; (2010) 194 IR 1 [14] - [15]

[12] Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1 [7]

[13] Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000)

[14] See also Komeyui Management Pty Ltd v Guy Goonewardena [2024] FWCFB 425

Printed by authority of the Commonwealth Government Printer

Kelly Pritchard v Commonwealth of Australia as represented by Services Australia [2025] FWC 2002

At a glance

Court

Decision date

Source

Judgment (45 paragraphs)

Kelly Pritchard v Commonwealth of Australia as represented by Services Australia [2025] FWC 2002 (25 July 2025)

Parties

Legislation Cited (1)

Cases Cited (5)