Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application dismissed

[1] This decision concerns an application by Ms Kiran Anand (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) in relation to her employment with Volgren Australia Pty Limited (the Respondent).

[2] The Applicant commenced her employment with the Respondent on 3 May 2023 and was employed as an Accounts Payable Officer. The Applicant's employment was terminated on 7 March 2025 for conduct related reasons and which had resulted in an irreconcilable breakdown of the working relationship between the Applicant, her team and the Respondent's management, such that there was no reasonable prospect of a positive working environment. The Applicant was paid 5 weeks' pay in lieu of notice.

[3] The matter proceeded to an arbitration on the merits of the application on 24 June 2025 after a case management conference where my Chambers issued directions on 23 April 2025. In the hearing, the Applicant was unrepresented and did not have any witnesses other than herself. The Respondent also unrepresented relied on 3 witnesses during the proceeding. The witnesses for the Respondent were Mr Nick Petrakis (National HR Manager), Mr Alex Macwan (Manager) and Mr Andres Sammarco (CFO).

[4] Section 396 of the Act requires that I decide four matters before considering the merits of the application. Firstly, there is no dispute, and I find that the application was made within the statutory period required. I find that the Applicant is a person protected from unfair dismissal. There is no evidence before me that the Respondent is a small business and therefore protected by the small business dismissal code nor is redundancy relevant to this application.

[5] Having considered and made findings on each of these initial matters and there being no dispute that the Applicant was dismissed (s.386), I am required to consider the merits of the Applicant's application.

[6] Prior to the Respondent's request on 17 February 2025 of the Applicant to participate in a new online performance review process, between August to October 2024 the Applicant had tried to escalate a review of her performance in the hopes of receiving an increase in remuneration.

[7] In January 2024, the Applicant was granted a 5% pay rise. In early August 2024 the Applicant approached her Manager to seek a pay review. On 15 August 2024 the Applicant escalated her request with the CFO asserting that her performance was "exceptional" and that she is a "great worker and team player", and included the Chief Executive Officer (CEO) in the email. The CFO responded and informed the Applicant on 16 August 2024 that her Manager would contact her soon to arrange an individual performance evaluation. On 28 August 2024 the Applicant's Manager met with her and informed that due to having received a 5% pay rise in January 2024, her next pay review would be in early 2025. She was also directed not to involve the CFO or CEO in her requests for a pay review.

[8] On 16 September 2024 the performance review was conducted with the Applicant and she was informed that she was meeting expectations in her role and that her salary would be reviewed again in early 2025. On 3 October 2024, the Applicant once again escalated her concerns to the CFO requesting the outcome of previous meetings regarding her pay review. A meeting was conducted on 7 October 2024 between the Applicant, her Manager and the CFO where she was verbally warned about her conduct in involving the CEO and her requests for a further pay increase.

[9] The Respondent submits that subsequently, the Applicant's performance in her role and general conduct in the workplace noticeably declined after the 7 October 2024 meeting. This is not accepted by the Applicant.

[10] This application arises from the Respondent's dismissal of the Applicant on the basis that the working relationship had deteriorated and reached an irreconcilable breakdown, including as a result of the Applicant's refusal to follow a lawful and reasonable direction to participate in a new online performance review process in February 2025.

Whether the dismissal was harsh, unjust or unreasonable

[11] The remaining issue requiring a determination is whether the dismissal was harsh, unjust or unreasonable. Whether the dismissal was harsh unjust or unreasonable depends on an assessment of all the relevant facts and circumstances, including those set out in s.387(a) to (h) of the Act which are considered below.

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

[12] The Respondent has submitted that there was valid reason for the dismissal relating to the Applicant's conduct in failing to abide by lawful and reasonable direction of the Respondent. It is necessary to consider whether the direction was lawful and reasonable and whether the Applicant's conduct in failing to abide by the direction gave rise to a valid reason for the dismissal of the Applicant.

[13] The Respondent says that the Applicant repeatedly refused lawful and reasonable directions to participate in new performance management processes and to meet with the National HR Manager to discuss the impasse between herself and her Manager regarding her salary and performance and that this was in breach of clause 3(b) of the Applicant's employment contract. Further, that this led to an irreconcilable breakdown in the working relationship between the Respondent and the Applicant. The Respondent also submits that the Applicant refused to follow a lawful and reasonable direction not to email the CEO. This was a reasonable request. In a company of 475 staff, it is a misallocation of the CEO's time to be dealing with the dispute about a pay rise from an employee at the Applicant's level.

[14] The Respondent further submits this followed a review and multiple efforts to address the Applicant's concerns regarding a pay rise in the second half of 2024.

[15] The Applicant submits that in the latter part of 2024, she had already provided information regarding her performance to relevant managers and was believed that she did not need to repeat herself in the new online performance review process.

• [16] In determining whether the refusal to carry out the lawful and reasonable directions of the Respondent constitutes a valid reason for termination, I must have regard to all the circumstances, including the nature and degree of the Applicant's conduct.[1]

[17] I accept the Respondent's evidence that it had transitioned from a paper based to an electronic performance review system and that by February 2025 an email was sent staff to begin the performance review process. It is not disputed that there was correspondence between the parties in February 2025 regarding this new process.

[18] The Applicant responded on 14 February 2025 to the initial email sent to all staff, effectively refusing to participate in the new process stating that:

'I already had a meeting with my Manager and CFO last year and in email [National HR Manager] was included. I don't think I have to do this again.

In the meeting I was told what to do and that's why I am emailing you.

Please communicate with them and get it sorted.'[2]

[19] The CFO responded on 17 February 2025 by email advising the Applicant:

'This is a new process being implemented by the Company in 2025 with HR leading it so all employees get a periodic performance review, and it is documented in our system. Please follow the guidance and complete it.'[3]

[20] Within the hour, the Applicant responded by email and said words to the effect that she no longer feels like participating in the performance process. Later that day, she emailed the National HR Manager taking issue with the fact that her earlier correspondence regarding her 2024 performance review was not recorded or considered.

[21] Several more emails followed between the Applicant and the National HR Manager. The Applicant's responses included repetition of her grievance that her hard work was not recognised, that the Respondent's Managers lie and that she would not attend any meeting to discuss the Respondent's new processes.

• [22] The email correspondence on 18 February 2025 between the Applicant and the National HR Manager included a commitment by the National HR Manager 'to have the discussions/outcomes in writing to avoid any misunderstandings that might arise from our verbal communication'.[4] The Applicant rejected the invitation for a meeting. As is clear from the email correspondence and the Applicant's oral evidence, she did not believe that she needed to have any further direct discussions about her performance and that her Manager should be contacted to obtain relevant information regarding the performance review. In contravention of an explicit direction, the Applicant also copied in the CEO in one of the February email exchanges between herself and the National HR Manager.

[23] At the hearing, the Applicant clarified her email comments that she did not 'feel safe talking face to face with Management...'. The Applicant said words to the effect that this related to what she asserts is a lie by her Manager regarding discussions with her. The Applicant also repeated her written her submissions that her performance was exemplary and that she did not need to provide any further information for the new online performance review process.

[24] The direction to the Applicant to participate in a new online performance review process was clearly lawful and reasonable in my view. It is not disputed that the Applicant was given multiple opportunities to carry out this lawful and reasonable direction and to have a discussion about it but refused to do so. Likewise, the direction to the Applicant not to involve the CEO in her performance review complaints was in direct defiance to a lawful direction given in late 2024.

[25] The Applicant appeared to have a singular perception of her ability believing that she was always doing her best for the company and was a staff member that should've been recognised as 'exceptional'. She appears not to be able to accept that the Respondent could validly have an alternate view. It appears incomprehensible to the Applicant that she was not awarded a second annual pay rise in 2024 and continually refers to this as one of the reasons she did not participate in the new online performance review process in February 2025.

[26] I am of the view that the email exchange between the Applicant and the Respondent and the Applicant's own evidence at the hearing, illustrates that she was still focused on her 2024 unsuccessful attempts for a pay rise and refused to accept the Respondent's prerogative to initiate an online performance review process for its staff that included her. The Applicant appears determined to 'maintain the rage'. The new initiative applied to all staff and the Applicant did not have a reasonable explanation for her refusal to follow a lawful direction to participate in the new initiative. Further, she refused to follow the reasonable direction not to copy the Respondent's CEO in her pay review dispute.

[27] For the reasons above, I find that the Respondent had valid reason to dismiss the Applicant.

Whether the person was notified of that reason and whether the person was given an opportunity to respond (s.387(b)-(c))

[28] The Respondent submits that the Applicant was informed of the reasons for her termination at a meeting on 7 March 2025 and gave the Applicant an opportunity to respond to the matter of the loss of trust between her and her Manager. At the hearing, the Applicant said words to the effect that 'I did explain myself', in reference to the March 7 2025 meeting.

[29] The reason given for her termination was that there was an irreconcilable breakdown of the relationship between management and the Applicant, referencing recent and numerous discussions 'involving Humans Resources.'

[30] The discussion was followed by a termination letter dated the same day.

That there was a refusal by the employer for the person to have a support person (s.387(d))

[31] The Respondent submits that there was no request by the Applicant to bring a support person to any meetings and accordingly no relevant refusal by the Respondent to allow the Applicant to bring a support person with her to any meeting. This is not disputed by the Applicant.

Whether the dismissal was related to unsatisfactory performance and whether the person had been warned about that unsatisfactory performance before the dismissal (s.387(e))

[32] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant in this matter.

Size of the employer's enterprise and absence of a dedicated human resource department (s.387(f)-(g))

[33] The Respondent employs approximately 475 employees. It has a dedicated Human Resources team and a National Manager in Human Resources.

Other relevant factors (s.387(h))

[34] In the Form F2, the Applicant submits that the termination letter 'was really broken my career and my personal life.' She submits that her health has also been affected. The Applicant in her submissions provided a letter by her General Practitioner noting that she is 'feeling low in her mood' and was referred to a psychology counsellor. No further evidence was provided in this regard.

[35] I have considered all matters I am required to consider, including all the factors in s.387 and conclude that the Applicant's dismissal was not harsh, unjust or unreasonable. It was not unfair. The application is dismissed.

[1] Izdes v L.G Bennett & Co Pty Ltd t/as Alba Industries [1995] IRCA 499

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