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[211]
[2025] FWC 3225
General information, not legal advice.
Fair Work Commission
2025-11-25
Original judgment source is linked above.
s.365 - General protections
Endeavour Energy Network Management Pty Ltd Trading as Endeavour Energy
Application to deal with contraventions involving dismissal - jurisdictional objection - not dismissed on the basis the Applicant resigned - objection dismissed - application to proceed
Incident on 13 March 2024 and Endeavour's response
Development of the Reconciliation Action Plan (RAP) vision statement
Interviews with Employees of Colour and Program Development
Denial of Access to People & Culture (P&C) Process Data
I think she felt she wanted to take the strategy in a much more philosophical process which is one way that you can do things. In the Endeavour context we have stakeholders who want to see a lot more concrete and rigor around the plan about what you're doing, how you're doing it, the impact it's having: 'Can you please measure that and show us the value to the bottom line'? I think that part of it was something that she wasn't quite - had not quite had the experience in getting her head around and that was the bit we spend quite a bit of time on.[28]
Performance Improvement Plan (PIP) and probation extension
Elevate the impact of performance in the role of I&D [Inclusion and Diversity] Specialist to include stakeholder management, collaboration broadly across the business and to lead initiatives in consultation with the I&D Manager:
1. Build relationships and develop business partnerships with internal and external stakeholders.
3. Partner with others in the P&C team to connect with the various branches
4. Prioritise work to ensure delivery of the actions on the workplan are achieved
5. Design and project manage I&D programs. Manage a range and variety of projects simultaneously across the business
6. Actively and with initiative seek out opportunities to contribute to the ISD portfolio broadly.
Failure to meet the required performance targets by the relevant deadlines may result in disciplinary action, up to and including termination of employment.
(a) Ms Hoang did not adapt her approach when given feedback. Ms Roden gave an example of feedback she provided to Ms Hoang that her communication to employees was too academic and needed to be simplified;
(b) Ms Hoang did not engage with the broader workforce to plan and create Inclusion & Diversity work programs and initiatives. Ms Roden said that she had multiple conversations with Ms Hoang about the need for this engagement;
- (c) Ms Hoang was unable to execute key functions of her role. Ms Roden gave an example of the 'empathy interviews' Ms Hoang conducted with employees, and suggested that her approach to the matter was not robust enough for the data collected to be useful.[46]
(a) Raised concerns around Endeavour's diversity and inclusion work;
(b) Raised concerns in relation to Ms Roden's management. Ms Murison said that she found this surprising as Ms Hoang reported to Ms McManus and not Ms Roden. This included:
- A prior conversation regarding the decision for Ms Roden to chair the NAIDOC event instead of Ms Hoang's recommendation Mr Barton. Ms Murison said that Ms Hoang said that she provided feedback about her concerns to Ms Roden after this event and felt that she was being treated differently by Ms Roden as a result of her feedback;
- How Ms Roden dealt with a concern raised by a Muslim employee about a comment made by a Board Director. Ms Murison said she understood that the Board Director was herself a Muslim, and made the comment based on her personal experiences as a woman growing up in a Muslim country;
- Ms Roden micro-managing Ms McManus;
- The reasons for Ms Samaroo departing her role. Ms Murison said that she felt that this discussion would be inappropriate.
(c) Indicated that she believed that she had been grinding her teeth in her sleep as she had a sore jaw for some months. Ms Murison said that she asked for more information however Ms Hoang did not provide much more context. As such, Ms Murison said she considered it could have been related to any range of issues and that it was just a passing comment;
(d) Raised concerns around the confidentiality of her concerns about Ms Roden. Ms Murison said to Ms Hoang that she would keep her concerns confidential from Ms Roden;
(e) Raised concerns around the PIP and that she wondered if the PIP was retaliatory for the feedback she raised with Ms Roden; and
- (f) Indicated that her main concern was Ms Roden, and that she did not feel comfortable working with Ms Roden or providing feedback to her. Ms Murison said that Ms Hoang made no mention of feeling unsafe.[49]
(a) It was appropriate for Ms Hoang to be on a PIP as she needed to focus more on building relationships with others and build a brand and recognition across the company in relation to Inclusion & Diversity. She said that she observed Ms Hoang was quiet and tended to isolate herself in the office or worked from home;
(b) Ms Hoang formed a dislike for Ms Roden. In her view, Ms Hoang's perception of Ms Roden's motivations were not consistent with objective records; and
- (c) Ms Hoang did not agree with Endeavour's approach to Diversity and Inclusion and the reporting structure.[52]
Jan is excluding me again, this time in front of externals...Still trying to make it work, so I'll continue to keep my head down and nudge as best I can.[54]
Further interaction with Ms McManus and Ms Dobe in late February and March 2025
Endeavour's expectations of you in your role as Inclusion and Diversity Specialist include building relationships with internal and external stakeholders and through those relationships identifying the areas which require increased diversity and inclusion strategies and outcomes or where engagement from a diversity and inclusion perspective needs to be lifted and to do this in a way that is suitable and appropriate for our business. From this engagement, you are required to create and build projects to achieve these outcomes and ensure its implementation has lasting effect. This role is pivotal to Endeavour consistently ensuring that it is improving and implementing best practices.
Your performance has demonstrated that you have not been able to meet these outcomes to support Endeavour's inclusion and diversity strategy and your competency remains below what we expect of a Specialist at the level required for this role and what we need for a fully functioning member of our team. Because of this, and despite our considered efforts to support you in performing your role, in our view your performance is not to the standard reasonably expected by Endeavour and unfortunately, we are proposing to terminate your employment with Endeavour.
We would like to understand from you whether there are any reasons why you believe that your employment should not be terminated. Please provide your response to me in writing by COB Tuesday 25 March 2025. If you have any questions about this process or wish to discuss the matter please give me a call on [redacted]. I am happy to provide you with a period of paid special leave through 25 March 2025 if it will assist you to provide your response. If this is something you wish to take up please confirm it in writing with Jo.
365 Application for the FWC to deal with a dismissal dispute
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
- to whom a training arrangement applied; and
- whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
- the demotion does not involve a significant reduction in his or her remuneration or duties; and
- he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.
Where the respondent to a s 365 application contends, in its response to the application or otherwise, that the application was not validly made because the applicant was not dismissed, this must be determined prior to the Commission 'dealing' with the dispute under s 368 including by conducting a conciliation conference.[76]
[47] Having regard to the above authorities and the bifurcation in the definition of "dismissal" established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the "heat of the moment" or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although "jostling" by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is "forced" by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer's conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.
[48] It is necessary for an applicant for an unfair dismissal remedy whose employment has terminated because the employer has acted on a communication of resignation on the part of the employee to articulate whether they contend they were dismissed in the first or the second scenario above (although it may be possible for both scenarios to arise in a particular factual situation). Where the applicant is self-represented or inadequately represented, it may be necessary for the member of the Commission hearing the matter to clarify with the applicant the precise basis upon which it is contended that the applicant was dismissed. If this is not done, it may lead to the wrong test being applied to the matter.
So after repeated attempts at trying to rectify performance and giving lots of performance feedback, those two critical pieces of work that I gave to Ms Hoang were the International Women's Day event, and our gender pay gap statement. Both of those were - the gender pay gap statement, we missed the deadline from WGEA, so I had to call up and get some advice around how we could manage that to still be included, because they had a cut-off, and so I did that. And the International Women's Day agenda just wasn't progressing. So we were kind of three weeks out. We hadn't invited anybody, the agenda wasn't locked in, we hadn't locked in external speakers. And so I raised my concern to Ms Dobe in the first instance, around what do we need to do to continue to kind of get some performance structure happening. And the advice was around - at the end of the PIP, so going back to the PIP, we - I wanted to keep Ms Hoang on. I was desperate to keep working with her, and so we agreed that I would make sure that we had regular performance discussions, and so this was part of that. For me, those two pieces of work are where it really escalated to her not being able to deliver the requirements of her role independently, and that's when the decision was made to then go down the path of the show cause letter.[83]
the very act of giving [Ms Hoang] the notice to respond to is her opportunity to respond and is important, in my view, that you set out the concerns quite clearly and articulately so that she knows exactly what she's responding to rather than me just having a meeting with her about something. There needs to be more structure and format to a matter like this which, you know, I think as you appreciate is relatively serious. So, it's important that the concerns get captured in the show cause letter, that that letter is then given to Leigh and that she is then given an opportunity to respond.[85]
It depends on what it is. So, for example, like safety type ones and that there'd usually be like a safety investigation. Like if someone's not followed a procedure or something on the network there's usually safety investigations. And then they would have already usually been interviewed as part of that and then there might be a letter like this. Other things, it may be something where we engage an investigator something. If it's serious kind of bullying allegations or something like that we'd engage an investigator. So there would be a letter of allegations. There'd be an investigation and then there'd be, depending on what the outcome is a show cause letter or something like this, if it was substantiated. Or it could be some other kind of outcome, depending on what the finding would be about it. It just really depends on the circumstances of the matter.[86]
DEPUTY PRESIDENT WRIGHT: Were you aware that the show cause letter actually had a line in it where termination was proposed, or is it the case that you - that that bit of the process was looked after by Ms Murison?
MS McMANUS: I knew that there would be options for different things at the end, and that termination was not the outcome of the letter. Like, that's not the only outcome of the letter. I definitely knew that there were opportunities for other things, and that's what I was personally hoping for.
DEPUTY PRESIDENT WRIGHT: Is that something you discussed with Ms Murison?
MS McMANUS: I'm trying to remember. I think it was - I think the discussion was whether - like, what do we need to do to really push forward this accountability around performance.
DEPUTY PRESIDENT WRIGHT: Because I don't know whether you've looked at the show cause letter recently, but it doesn't actually refer to there being any other options. I can take you to it if you want me to but it's - there is some wording which sounds like there's been quite definite decisions made in relation to performance issues, or findings, and then it refers to termination being proposed. So my reading of the letter is that decisions have been made that performance is not satisfactory, and that there's been a preliminary view that termination is appropriate, subject to hearing from Ms Hoang. It doesn't actually have anything about other options. Is that something that comes as a surprise to you, that it doesn't have other options, or are you familiar with the letter and you know what it says?
MS McMANUS: I've seen the letter but I read the letter as - and my conversations were there were other options. And then even the Friday before that, I was still approving system access for Ms Hoang to do something to do with our April 1 event. So I wasn't expecting that to be the outcome.
DEPUTY PRESIDENT WRIGHT: So once Ms Hoang's response was received, would you have been part of the decision-making process to work out what to do next?
MS McMANUS: Yes, because it would've probably been another performance structure that I would have had to manage as her manager.[87]
...usually in good practise HR, the performance improvement plan comes before the show cause. The show cause is the end. It's one of the - it's, like, the penultimate, you know, action before termination. And that did not happen in my case. There was no warning. There were no warnings. There was no further performance improvement plan. There's nothing documented in the evidence.[88]
In the context of the events of 19 April, the failure to offer Mr Wederay a support person of his choice was a failure of substance. A support person can assist an employee to assert their rights, act consistently with their rights and not act contrary to their interests. In the context of the events of 19 April, a support person would have been entitled to take a role in moderating Mr Wederay's agitated state, give him confidence to state his objections to the written warning, assert his right not to sign the warning, counsel him against a heat of the moment resignation, ascertain his real intention and counsel him on whether a heat of the moment resignation, once expressed, should be instantaneously withdrawn. The conduct of Cabin Services in not offering Mr Wederay an opportunity to be accompanied by a support person of his choice was a significant and material failure on its part.[90]
Support persons have an important and useful role to play when involved in investigatory and disciplinary matters in the workplace. While a support person is not an advocate per se and should not hijack a lawful and reasonable process or answer for an employee, I do not subscribe to the absolute view that they should only be seen and not heard. This is because there may be circumstances in which an employee might be experiencing difficulty in comprehending aspects of the process or an employer might be misconstruing an explanation and the support person present can help improve the quality of the dialogue.[92]
What must be shown is that the conduct of the employer was "intended to bring the employment to an end". The usual purpose of an investigation is not to bring about termination of employment. The intention is to ascertain, with a degree of certainty, what event or series of events transpired. Once that information is gathered, then the employer may decide what action is appropriate.[100]
[1] Witness Statement of Leigh Hoang dated 26 May 2025 (Hoang Statement) [10], Digital Hearing Book (DHB) 52
[7] Statement of Jan Roden dated 10 June 2025 (Roden Statement) [16]-[17], DHB 230
[8] Hoang Statement [28]-[35], DHB 54-55
[9] Statement of Joanne McManus dated 10 June 2925 (McManus Statement) [34], DHB 236
[10] Hoang Statement [36]-[39], DHB 55
[19] McManus Statement [39]-[40], DHB 237
[21] Hoang Statement [64]-[66], DHB 58
[24] Witness Statement of Diane Samaroo (Samaroo Statement) [7]-[10], DHB 77
[29] Statement of Emma Murison (Murison Statement) [48], DHB 195
[32] Hoang Statement [78]-[79], DHB 60
[49] Murison Statement [24] DHB 190-192
[60] Hoang Statement [112]-[116], DHB 64-65
[68] Statement of Mark Barton dated 20 May 2025 (Barton Statement) [11]-[12], DHB 76
[72] Hoang Statement [155]-[157], DHB 70
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Leigh Hoang
Endeavour Energy Network Management Pty Ltd Trading as Endeavour Energy [2025] FWC 3225