Fair Work Commission|2025-07-10

Miss Maddison Clouder v Anytime Qld Pty Ltd, Mr Andrew Gow [2025] FWC 1978 (10 July 2025)

s.365 - Application to deal with contraventions involving dismissal (consent arbitration)

Application to deal with contraventions involving dismissal - consent arbitration - Whether Applicant was dismissed for making a complaint of inquiry - First Respondent dismissed the Applicant because of concerns about performance - Application dismissed.

[1] On 15 December 2024, Miss Maddison Clouder (Miss Clouder/ the Applicant) applied to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (Cth) (the Act) for an application to deal with a general protections dispute involving dismissal. The Respondents in the matter were named as Anytime Qld Pty Ltd (Anytime / the Employer) and Mr Andrew Gow (collectively the Respondents).

[2] The Application was listed for conciliation conference before Deputy President Dobson on 27 February 2025, but the matter did not settle. A certificate was issued under s.368 of the Act on the same day. On 10 March 2025, the parties made the application to the Commission to have the matter arbitrated.

[3] On 31 March 2025, I issued a Notice of Listing and Directions to the parties, and a hearing was held on 30 May 2025.

[4] The Applicant appeared on her own behalf. Ms Toni Hosking appeared on behalf of the Employer and Mr Andrew Gow appeared on his own behalf.

[5] The Applicant filed a witness statement on her own behalf on 14 April 2025,[1] and two statements on 6 May 2025. The first in response to the statement of Ms Hosking,[2] and the second in response to the statement of Mr Gow.[3] Ms Hosking, Regional Manager and Mr Gow, Business Coach provided witness statements[4] [5]dated 28 April 2025, Ms Hosking on behalf of the First Respondent, and Mr Gow as the Second Respondent.

[6] The Applicant commenced with the Employer as a casual Membership Consultant on 14 May 2024. This position was paid under the Fitness Industry Award 2020 level 3. At the time of commencing employment, the Applicant was 19 years old, however the Employer said it offered her this casual position with an adult rate of pay.

[7] Ms Hosking's evidence was that shortly after commencing employment, she noticed recurring issues with the Applicant's tardiness and frequent last-minute shift cancellations. On one occasion, Ms Hosking said the Applicant arrived two hours late for a scheduled shift, which resulted in a verbal warning. This warning was documented internally.

[8] The Applicant disputed that this was given as a 'warning.' The evidence provided by the Employer was in an email from Ms Hosking to Mr Gow on 4 June 2024:

I'd like to book in the meeting with Maddie and [other employee] next week. I think it'll work best if we kick off the meeting with Maddie first to give her some privacy/focus on how she has been going, and then have [other employee] join in halfway to discuss Kirwan with the both of them together.

Maddie has been doing really well. She has full awareness that she slipped up when she was 2hrs late on Friday. We have spoken about it; she was unwell the night before and had a rough night/didn't get much sleep and then missed her alarm (I knew she had been struggling that week so I know this just an attempt for an excuse, she still took full accountability regardless). I let her know that we are understanding of her situation, and we can normally be quite flexible, but the business still has boundaries/needs and reliability is a 'must have' quality for our staff, so this can't happen again.

I don't want this to take away from how well the girls have been doing and how hard they have been working, and I'm happy to leave them with this verbal warning and move forward now. Both had a lot going on, and both have made assurances it won't happen again."

[9] Ms Hosking submitted the following record of the Applicant's attendance over May and June 2024:

Monday 27 May: Time out of club (to take sister to the doctor for ear infection)

Saturday 1 June: Late notice shift swap with co-worker (car issues)

Thursday 4 June: Verbal warning regarding punctuality documented

Tuesday 18 June: Left shift early (family emergency)

Wednesday 19 June: Late start (supporting sister in emergency)

[10] In July 2024, Ms Hosking said the Applicant verbally requested to transition into a permanent part time role due to financial hardship. The Applicant rejected the assertion that she had made the request in that manner.

[11] The Applicant's evidence was that before she was offered the position as a casual employee, Ms Hosking responded to her application and said there were 2 positions available, one part-time position and one full-time position. The Applicant said when she went in on 13 May 2024 for her trial shift she was asked to start as a casual as another staff member was injured and going on holiday. Further, she said Ms Hosking wanted her to be flexible with her hours and once the other staff member returned, the Applicant would move to permanent part time for job stability to get a new car.

[12] Ms Hosking said she responded to this request to transition to permanent part time by booking in a formal meeting and review of the Applicant's performance, which was attended by Ms Hosking, Mr Gow and the Applicant on 31 July 2024.

[13] In this meeting, Ms Hosking said the Employer addressed the need for improvement in the Applicant's reliability and punctuality, which they explained was disrupting business operations and delaying the completion of her onboarding training. The Employer put the Applicant on a five-week performance plan to improve in these areas before they could discuss moving her into a permanent role.

[14] The Applicant's evidence was that they discussed the opportunity to go part time as the employee was back at work and she wanted to move to part time. The Applicant said she was then informed that the only part time role is the Assistant Manager role, and at this time the previous Assistant Manager stepped down, so this was a possible opportunity. She said they discussed some areas of improvement and set a follow up for 5 weeks. Ms Hosking then sent her a message stating she was going to put it into writing.

[15] On 31 July 2024 at 2:10pm, Ms Hosking texted the Applicant the following:

"Hey lovely I've just popped in writing what we discussed today via email (regarding part time employment). It's just to confirm we have a plan of action in place [smiley face emoji] Any questions let me know!"

[16] Ms Hosking sent an email to the Applicant on 31 July 2024 stating:

Thank you for expressing your interest in a part time position with us. I believe you have great potential with Anytime Fitness. You have already shown us many great attributes that directly align with our company values, and it is a pleasure having you on our team.

As discussed today, there are 2 areas I'd like to focus on prior to discussing your change to a permanent role;

1. Reliability & Punctuality: There have been some repeated instances of coming to work 10-20 minutes late. Whilst I appreciate your communication every time this has happened, being reliable and punctual is a vital attribute for our permanent employees. Being a customer service based business, we need to trust that our staff are arriving on time to open the doors and answer the phones for any member and prospect enquiries/appointments.

2. Extra Duties: A part time role may include extra duties from time to time. For example, if the Manager is on leave, the club duties will fall to you until the Club Manager returns. It will be an expectation that you have an understanding of how the club operates and how to complete all tasks. We have already completed most of your onboarding list (attached for your reference), but there are a few jobs remaining for a part time role, so we will tick those off over the next month and make sure you are really comfortable with them.

If this suits you, then I'd love to work with you on these points over the next 5 weeks, and we will book in a follow up review from the week of Monday 16th September to discuss your progress and possibility of moving to part time [smiley face emoji]

I look forward to watching you grow in this space [purple heart, star emoji]"

[17] Over the course of the five-week performance plan, Ms Hosking said the Applicant did show a temporary improvement in her reliability and attendance. This allowed both Ms Hosking and other senior team members to complete a majority of her onboarding training, which the Applicant signed off on, confirming she was fully trained and confident in her duties.

[18] Ms Hosking submitted the following record of the Applicant's attendance over July, August and September 2024:

Monday 8 July: Left shift early for medical reasons (medical cert provided)

Tuesday 9 July: Called off for medical reasons (medical cert provided)

Wednesday 31 July: Discussed expectations and the need for improvement regarding

Monday 26 August: Time out of club (put dogs back in the yard)

Thursday 29 August: Left shift early (give sister a lift)

Thursday 12 September: Left early (give sister a lift)

Wednesday 18 September: Follow Up Performance & SOAR Review

Monday 23 September: Left shift early (take dog to vet)

[19] On 7 September 2024, the following text message thread was exchanged:

Applicant: "can we please let the girls know to complete trello after each shift, i'm just not sure what's getting done [worried emoji face]"

Ms Hosking: "Yeah of course, I'm happy for you to message who was on last and ask them too [smiley face emoji] sometimes direct communication/reminders between each other are the best"

Applicant: okay awesome i just didn't know if it was rude coming from me, i hate asking people to do things [crying laughing emoji] but ill just send a little reminder"

Ms Hosking: "No not at all! As you're working at Kirwan nearly full time and taking a lot of responsibility for the club, it creates a space for you to manage and communicate with the team [smiley face emoji] Everyone is so nice and happy to help anyways so they won't take it the wrong way!

As we start looking into part time opportunities for you, communication and leadership will be some good attributes to have..."

[20] At the five-week follow up on 18 September 2024, Ms Hosking said the Employer offered the Applicant the part time role as Assistant Manager. On 19 September 2024, Ms Hosking emailed the Applicant:

Once again, congratulations on earning yourself a promotion to Kirwan's part time Assistant Manager!

You have shown a lot of growth in your role these past few months and we can't wait to see what else you'll achieve within the AF space [smiley face emoji]

As promised, please see attached your new part time contract. Can you please have this signed and returned to me by Friday 4th October?

Just confirming that we will also book a 6 month performance and pay review upon your next birthday in March 2025.

As always, feel free to reach out if you have any questions [smiley face emoji]"

[21] Ms Hosking's evidence was that due to the Applicant's history of absenteeism and unreliability; the role came with an agreed upon three-month probationary period to ensure her improved performance would continue. This role was 28 hours per week and included a promotion to the Fitness Industry Award level 4. Ms Hosking said that due to the financial hardship the Applicant was expressing, the Employer also offered her a pay rate which was $3.96 above the Award rate to show commitment to her as a permanent employee. The Applicant formally accepted her new role on 2 October 2024.

[22] The Applicant submitted that this statement is false. Instead, she said she was made aware of the $3.96 pay rise when Ms Hosking sent her a message letting her know she was going to be paid this increase. She said her pay decreased once she went into the permanent-part time role from $31.09 Monday - Friday rate, and $32.33 Saturday rate as a casual membership consultant to $28.00 an hour as an Assistant Manager that had no Manager present and was the Acting Manager. The text message read:

"Hey lovely! Just confirming I have sent your new part time contract via email. I also just wanted to loop you in that we will initially be paying you $3.96 above the minimum rate for your age. And then upon your next birthday, we will do another pay review [smiley face emoji]"

[23] The Applicant accepted she was paid by the Respondent $3.96 an hour above the Award rate. The Applicant also accepted she asked for more money however said she felt she was effectively running the club.

[24] The Applicant agreed she had weekly meetings where her KPI's were discussed, and that reporting was done on the KPI's each month. The Applicant agreed it was made clear how she could contribute to improving her KPI's. The Applicant accepted that it was spoken about that the business at Kirwan was not achieving its goals. The Applicant agreed that she had sufficient support in relation to being trained in the role, however argued she did not have sufficient support in relation to the level of responsibility and the pay rate she was receiving.

[25] Ms Hosking said immediately after the Applicant commenced her part time role on 7 October 2024, her performance and reliability declined again. The Applicant said Ms Hosking referred to 3 pieces of evidence which were not addressed with her at the time and only brought to her attention until now, 6 months after her termination.

[26] On 30 October 2024, only three weeks after commencing her part time role, Ms Hosking said the Applicant again expressed financial hardship and requested a new employment arrangement or a promotion into the full time Club Manager role to earn more money. The Applicant's text read as follows:

"Hey Toni, i just wanted to check in again about my new role, i am absolutely loving it and i can't see myself with any other business but i really am struggling on $700 a week, its not realistic for me. I know you already mentioned that you didn't have any more hours to offer me on my permanent part time role which i completely understand but i was hoping we could come up with something.

As you mentioned today our Kirwan gym doesn't have a manager and i was wondering if we could talk about me moving into this role as i am managing the gym.

Again i am so appreciative to be in this role, i love the team and how welcome i feel being at Anytime fitness but i really am struggling and would love to work this out. I look forward to discussing this with you."

[27] The Applicant said this was false. Her evidence was that she previously reached out to Ms Hosking in the club asking for more hours as she wanted to earn more money as she was only earning $700 a week. She said this was declined, and a few days later reached out as she was managing the club on her own and was asking to get paid in line with her responsibilities. The Applicant referred to the following text message exchange which occurred prior to 30 October 2024:

Applicant: "also i was just wondering i noticed you said [other employee] is working Wednesdays during december and as we usually have two other people on for Thursdays. Would i be able to do the full day with [other employee] rather than just 3-7? just thought i would ask as it would really help right before Christmas [smiley face emoji]"

Ms Hosking: "Unfortunately that would be adding more to payroll right now which I just don't have approval to do. Thursdays are usually pretty quiet and don't need 2 people in the morning, we only had 2 on as it was [other employee]'s only day of availability (and she's not in a condition to work on her own at the moment).

Moving a shift from one day to another is fine for payroll but sadly I can't add more hours on right now worry [prayer hands emoji] Especially as it usually dies down in Dec too"

"You are rostered on for extra hours up until your Christmas leave now though and if anyone needs anything covered I'll definitely ask you [smiley face emoji]"

[28] Ms Hosking submitted the following record of the Applicant's attendance over October 2024:

Saturday 5 October (after Monday public holiday). Messaged on the Saturday of the long weekend to ask if she can stay on leave longer and not return until Wednesday now. Did end up coming in for the Tuesday shift as planned as the team were all also enjoying their long weekends and the club is usually extra busy after public holidays.

Monday 7 October: Was on planned time off with return to work on Tuesday 8 October: Commenced part time role

Friday 25 October: Called off sick (medical certificate provided)

Monday 28 October: Called off sick (medical certificate provided)

[29] Ms Hosking said due to the Applicant's underperformance, this promotion request was denied. However, to find a compromise and create a supportive solution, Ms Hosking said she instead agreed to offer the Applicant some extra hours to help alleviate financial stress. She said this would also allow more opportunity for the Applicant to work on her duties and performance.

[30] Ms Hosking submitted that despite being provided with additional hours to relieve financial stress, the Applicant continued to cancel shifts. Ms Hosking said in one instance, the Applicant cancelled a full-day shift due to booking in a personal hair and eyelash appointment.

[31] The Applicant said this is false. Her evidence was that 21 November 2024 was her rostered day off. She said on 23 October 2024, Ms Hosking offered her a shift to which the Applicant told her she already had an appointment booked, had already paid a deposit, and would get back to her if she could work it. The Applicant said Ms Hosking went ahead and changed the roster without confirming it with her.

[32] A text message thread submitted by the Applicant shows that this shift was offered on 23 October 2024, as a pick up from another employee and was offered by Ms Hosking, but not accepted by the Applicant at that time. On 18 November 2024, the Applicant texted Ms Hosking to confirm she could not perform the shift on 21 November 2024, referring to it as "a roster update". Ms Hosking stated this had been on the roster since it had been published the other week.

[33] Ms Hosking submitted the following record of the Applicant's attendance over November 2024:

Friday 8 November: Andrew Gow & Maddison Clouder Coaching Call

Monday 11 November: Called off (injured arm on weekend, went to hospital Monday)

Tuesday 12 November: Called off (injured arm, hospital appointment)

Wednesday 13 November: Late start to shift (hospital appointment morning of)

Saturday 16 November: Arrived 29 minutes late, no communication

Monday 18 November: Some hours out of club (hospital appointment for arm again -

Thursday 21 November: Cancelled shift after asking for extra hours (due to a lash and hair appointment)

[34] Due to further performance issues that Ms Hosking said she was observing and working on with the Applicant (such as decision making, working independently, team communications, KPI's, self-confidence, and again, reliability), Ms Hosking reached out to the Employer's Performance Coach, Mr Gow, to book in a one-on-one coaching call directly with the Applicant. Ms Hosking said her objective was to provide another layer of support for the Applicant's growth.

[35] The Applicant said this is false. Her evidence was that after she had reached out to Ms Hosking on 30 October 2024, she had not heard anything for 6 days, so she reached out to Mr Gow on the 5 November 2024 to talk directly with him. She said they spoke privately and booked in a call on the 8 November 2024. The Applicant said she sent Ms Hosking a message notifying her she had reached out to Mr Gow for this call and was staying back to attend this meeting. The Applicant submitted text message threads which confirms her version of events.

[36] Between November and December 2024, Ms Hosking said the Applicant again verbally requested either a pay increase or a promotion to Club Manager.

[37] The Applicant said this is false and she did not verbally request another pay rise. Instead, her evidence was that on 2 December 2024, she had called Mr Gow on her lunch break and spoke to him about her concerns with still not getting paid in line with her responsibilities. She said she acknowledged that she was still learning and if the Manager position was not an option at this point in time, she was happy to work more hours. The Applicant's evidence was that Mr Gow said he would talk to Ms Hosking and organise a meeting to discuss the promotion or increased hours.

[38] Mr Gow's evidence was that the Applicant called him to raise that she was having financial concerns, express that her current wage was not enough for her to live on, and that she was also struggling with growing the club and hitting her KPI's. He said the Applicant referenced old equipment, lack of time to get outside the club and do outreach and didn't provide any solutions or ways to change the current results.

[39] He said the Applicant added several suggestions including more hours and asked him what options the Employer had. His evidence was that he listened and explained that the Employer would review the hours, and her hourly rate, and that if there was adequate reasoning for an increase, based on previous results and discussions, that they would let her know. Mr Gow said he restated before the call ended, that the business would need to decide based on performance and budget, so that he would get back to her, he also stated that this decision was a joint one, that he could not make alone.

[40] Mr Gow's evidence was on 3 December 2024, he contacted Ms Hosking, to discuss the phone conversation that had taken place between him and the Applicant the day prior. Mr Gow said Ms Hosking clearly reviewed each of the concerns raised and explained to him that the Applicant was already on 28 hours per week, which was the most of any team member in the club, that extra support was being applied by the other casual team members and that the Applicant's promotion to the Fitness Industry Award level 4 was at a pay rate which was $3.96 above the minimum Award to show their commitment to her as a permanent employee.

[41] Furthermore, Mr Gow's evidence was Ms Hosking explained that the Applicant had only achieved her 28 hours per week on 3 weeks throughout the period since her promotion and that this was due to decisions made and changes to the schedule by the Applicant. Ms Hosking expressed that the hours, the increase in hourly rate and all the support had been given as requested by the Applicant, to support her to improve performance and become more consistent in her role. At this point, it was clear and agreed on the phone call, that Ms Hosking and Mr Gow would need to be very clear with the Applicant about performance, wages, and her consistent unreliability were problematic, and that they would agree and set a plan to work with the Applicant to improve these.

[42] The Applicant said she then received a message from Ms Hosking on 4 December 2024 wanting to book in a progress call to check in on her growth and areas of opportunities before the year was up.

[43] Ms Hosking submitted that as the Applicant was still underperforming in her duties, she booked in another formal meeting between Ms Hosking, Mr Gow and the Applicant on 6 December 2024. The purpose of this meeting was to clearly outline the Employer's performance expectations and to create a developmental plan, which included a 3-month timeline for improvement before her next performance and pay review, which was scheduled to take place on her next birthday, 10 March 2025. Areas of opportunity discussed in this meeting were: reliability, decision making, leadership, team communication, KPI's and other duties not being performed.

[44] Mr Gow's evidence was that during this meeting, it was made very clear verbally and documented that no pay review was to take place until March of 2025. He said this was important, because it was already agreed that the Applicant's current wage was well above the Award for her age and responsibilities. Areas of opportunity discussed in this meeting were: reliability, decision making, leadership, team communication, KPI's and other duties not being performed.

[45] The Applicant's evidence was that they spoke about her goals and opportunities, but in her opinion, the whole point of her reaching out to Mr Gow for the meeting was to discuss her role and responsibilities, and her pay and hours which was not mentioned once in the meeting. The Applicant said Ms Hosking expressed that the Applicant was still being unreliable, and not up to standard to move into a manager role just yet, but she was told to keep treating the Kirwan club as her own and make her own decisions for the club.

[46] Ms Hosking said immediately after the meeting on 6 December 2024, the Applicant privately messaged Mr Gow to request a pay increase again. The message read:

"Hey Andrew, thankyou so much for meeting with me today and going over my goals and the future at Anytime Fitness Kirwan.

I just wanted to check in just as i'm a little confused on my role. I know when i spoke to you earlier this week we said we were going to try and get more hours or possibly look at my responsibilities and have a look at my pay rate and since i am doing all the responsibilities of a manager i was just wondering is that going to get looked at?

Right now i know i am growing so i 100% understand the manager position not being available at this point but i would really love to meet in the middle so i am getting accommodated for the amount of responsibilities i am doing, if that means i have to work more hours to be accommodated for my pay i am more then happy to.

Sorry i just wanted to check in since we didn't really touch on that subject in the meeting. I know you..."

[47] The Applicant again stated Ms Hosking's version is false. Her evidence is that she messaged Mr Gow after the meeting as she was confused after they'd spoken on 2 December 2024 about the concerns that she'd thought they would discuss at this meeting were not discussed, instead she said she was made out to be unreliable.

[48] Mr Gow's evidence was that upon receiving the message from the Applicant, he called Ms Hosking to engage her in conversation as it is her responsibility to work directly with the team, and he wanted to make sure that they were all on the same page. On that call with Ms Hosking, he said they agreed that the Applicant might not be accepting their feedback or the importance of the meetings. He said they reaffirmed that whilst the Applicant had contacted and asked for a pay increase, that there were no grounds for it, and that the Applicant was already being fairly remunerated and given the hours to achieve her goals. He said they then agreed that they would follow up with the Applicant the following week to reiterate their expectations firmly and clearly. Ms Hosking confirmed that this conversation between herself and Mr Gow occurred and agreed with his summary.

[49] The parties' evidence diverged on why a follow up meeting was not held on Monday 9 December 2024. Mr Gow believed the Applicant was not at work, however text messages indicate that she had changed her shift to an 8am to 5pm and left at 5:41pm. The Applicant had indicated to Ms Hosking on 8 December 2024 that her dog had passed away and she wanted to make arrangements and grieve with her family on the afternoon of 9 December 2024. She also called off from work on 10 December 2024 for the same reason. A text message thread commencing at 8:18am between the Applicant and Ms Hosking on 10 December 2024 went as follows:

Applicant: "Morning Toni, did you say you would be in this morning? i'm really not up to coming in today i've asked [other employee] to come in from 10-7 but she finishes dusk at 12 so i was going to see if she could come straight after that if you could mind the office until she is in?"

Ms Hosking: "Unfortunately I'll be catching up on errands this morning."

Applicant: "Okay Toni no worries, I think you really need to look at putting a manager on so in times like these when i need it i have someone who can help out"

Ms Hosking: "Andrew and I will be in touch to follow up from our discussion on Friday regarding expectations and reliability in your role. Take the day to feel better, and we'll chat later."

[50] The Applicant alleged that she was threatened with the meeting after she had brought up Ms Hosking needing to put a manager on because she was not helping out. The Applicant said she then followed up later that day if she had been in touch with Mr Gow about the meeting as she said she wanted to talk to Mr Gow about Ms Hosking being absent from work, and she could not take a day off when she needed it because Ms Hosking would not come in to work and it meant the club wouldn't be staffed.

[51] The Applicant submitted that if she had gone into work and covered the club like she always did, there would not have been any issue and the follow up would never have occurred. She contended that Ms Hosking was not happy that she spoke up about needing to hire a manager as she was not present at work and when the Applicant needed support she did not have any.

[52] Ms Hosking contended that on the same day, she observed that the Applicant had made unauthorised changes to her rostered shifts to suit her personal needs. Ms Hosking notified her via SMS that these changes were not approved and reverted her hours to reflect business requirements: "Hi Maddie, I noticed your shift for this Thursday was also changed without approval? I approved last week's change, however this week your extra hours were rostered on for 3pm-7pm, not 10am-2pm. I know you wanted some extra hours, and the hours I had available were allocated for the afternoons. So this has now been changed back. If you no longer want the extra hours, we can discuss that."

[53] At 2:00pm on 10 December 2024, Ms Hosking emailed Mr Gow, with the subject line "Maddie - Meeting Summary + New Concerns." The email read:

Just following up on my last email and our meeting with Maddie on Friday.

Purpose of the meeting; Maddie has asked for either more hours, more pay, or the chance to move into a Club Manager role. However, I felt that she was not ready/performing well enough for this, and so we wanted to address some areas of opportunity in a meeting with her to set some better expectations.

To summarise the meeting, here are some areas of growth that we discussed with her:

1. Reliability: She has now commenced her 9th week in the Assistant Manager role, yet she has only attended her full 28 hours for 3 of these weeks. That leaves us with 6 weeks that we have had to organise covers for her and run the club without her. We cannot provide her with more hours until I see her full 28 hours being reached each week (excluding emergencies and sickness - with medical certificates).

2. Decision Making: We need to see her grow into a confident team member who can draw on her own expertise, knowledge and experience to make executive decisions that benefit both the business and the members. If I was to go on leave for 2-4 weeks, can she confidently run Kirwan on her own without seeking direction from myself or others? Right now, my answer to this question is a no. We need to get this to a confident yes over the next few months, preferably before her birthday in March, and definitely before my leave to Japan in May.

3. Leadership/Team Communication: At this stage, we have not seen her communicate and lead the team confidently. If staff errors or concerns arise in her team, we need to see her address them directly and appropriately with her teammates.

4. KPI's & Performance: We also touched briefly on the performance of Kirwan overall. Currently we know we're not where we want to be, and there can be many factors for this. In a management role, we need to dive deeper into finding out what the business may need to be successful.

5. Leads/Prospects: I also touched on the importance of not missing any leads. I have noticed that Kirwan does not always enter social media enquiries or casual visits as prospects into the Clubwise system, which is a non-negotiable. Our goal is to never miss entering a lead into Clubwise - no matter what your role is."

[54] The Applicant submitted that in this piece of evidence, it is clearly outlined what was discussed in the meeting. One of those topics being KPI's for Kirwan and understanding what the business will need to be successful. She said as this meeting was held only 6 days before her termination, if what Mr Gow and Ms Hosking are saying is accurate regarding her reliability being the cause for her termination, she would have thought it would have been addressed with her at a meeting about growth. She said this made it evident that these were not addressed with her.

[55] On 11 December 2025, the Applicant submitted that she followed up again with Ms Hosking about the meeting because she had not heard of anything for 24 hours. A text message thread submitted by the Applicant shows an exchange noting:

Applicant: "....have you got onto andrew to organise this meeting? I really would like to sit down and have a chat"

Ms Hosking: "We did have the meeting on Friday already regarding the improvements we need to see from you? I said we will be in touch to summarise and follow up. This was most likely going to be in writing via email, however if you would prefer another face to face meeting I can see when he is next available."

Applicant: "yes please i did text Andrew on Friday and gave him a call yesterday but i have had no response so if we could that would be amazing"

[56] Ms Hosking said at this point, the Applicant had been in her part time role for nine weeks but had attended all scheduled hours for only three of those weeks. The Applicant submitted that this was false and during her part time employment, she had 5 instances off work. Ms Hosking submitted the following record of the Applicant's attendance over December 2024:

Friday 6 December: Meeting to discuss the need for improvement in performance areas

Monday 9 December: Left shift early (upset due to dog passing over the weekend)

Tuesday 10 December: Called off (upset due to dog passing)

Wednesday 11 December: Meeting to address and follow up the expectations of being reliable as well as other performance/work qualities we need to see

Thursday 12 December: Meeting regarding termination of employment within probation period

[57] Ms Hosking submitted that prior to the meeting, she and Mr Gow discussed the direction of the upcoming conversation and agreed that they were still willing to support the Applicant's development if she acknowledged the concerns raised and committed to further training. Ms Hosking's evidence was that if the Applicant continued to disregard their feedback and concerns, they discussed the option of ending her part time role within the probationary period.

[58] Ms Hosking's evidence is that during the meeting, the Applicant immediately inquired about a pay rise. Ms Hosking said she reiterated that the Applicant's current performance did not meet expectations and declined the request. She said they again addressed concerns regarding the Applicant's independence, decision making, leadership, team communication, KPI's and reliability. Her evidence was the Applicant responded aggressively and refused to accept any accountability. That the Applicant deflected blame onto others and refused to self-reflect or consider further self-improvement. Ms Hosking said given the Applicant's response, they decided not to proceed with her probation and advised her that it is now within the business's best interest to terminate her part-time role.

[59] The Applicant's evidence was the assertion that she immediately inquired about a pay rise is false. Her evidence was Mr Gow started the meeting by asking why she wanted to meet today, and she responded saying she wanted to meet to go over her roles and responsibilities as this was her third time organising a meeting to acknowledge the roles and responsibilities she was doing in the club. The Applicant's evidence was she raised concerns with the treatment from Ms Hosking as the Area Manager - that being absent from work was affecting her as she could not have a day off when she needed and was threatened with a follow up when she raised that Ms Hosking needed to hire a manager as she could not step up to help out. She said Ms Hosking instantly started telling her how she was unreliable and not up to standard in her performance, which she was sick and tired of being told.

[60] The Applicant strongly refuted responding aggressively to Ms Hosking. She said she responded by addressing how Ms Hosking was always away sick, and the Applicant felt she was managing the club on her own. The Applicant submitted she expressed it's obvious she wouldn't be 100% in her performance when she was running every aspect of the club when Ms Hosking was meant to be taking care of the manager responsibilities. She said she also got upset as she was being told she was unreliable when she worked so hard for the club and took on so many responsibilities as there was no Club Manager. The Applicant contended that Ms Hosking got very defensive and started saying she was not taking accountability and was putting the blame on to other people.

[61] Ms Hosking submitted that she offered the Applicant a return to her casual position, which would allow her to remain in the fitness industry and would include regular performance reviews with continued growth opportunities to get back into a permanent role once her performance improved. She said the Applicant refused this offer, stating she did not want to return to casual employment. Ms Hosking said they accepted her answer. Ms Hosking said due to the Applicant's raised voice and emotional state, Mr Gow concluded the meeting with a follow up meeting planned for the next morning

[62] The Applicant's evidence was she and Ms Hosking argued back and forth, and she was instantly demoted to casual employment. The Applicant's evidence was she expressed she was the Assistant Manager, and she wouldn't accept moving into casual employment, as prior to speaking up about her concerns and exercising her workplace rights, there was no issues mentioned to her. The Applicant said she expressed it was not fair that she spoke up about what Ms Hosking was doing, and she was the one getting demoted and she would not be moving down to casual employment. Mr Gow concluded the meeting and said they would meet the following day to work on this together.

[63] The Applicant was asked that given the Kirwan Club was not meeting its KPI and performance goals what part of that did she take responsibility for. The Applicant said in response she was getting stressed and frustrated because the concerns she was raising about her level of responsibility, she was doing things on her own, what she was being paid was not being addressed and her issues were being pushed under the rug.

[64] Ms Hosking's evidence was that after this meeting, she and Mr Gow agreed that due to the Applicant refusing to accept her responsibilities, there was no viable path forward to continue her employment. They decided to formally notify the Applicant of her consequent termination via zoom call the following morning.

[65] It was put to the Applicant that she was not unilaterally demoted to a casual position on 11 December 2024, and that a casual position was offered and it was open to the Applicant to accept it. The Applicant denied that and said she was demoted to casual employment at the meeting on 11 December 2024.

[66] It was put to the Applicant that at the meeting on 11 December 2024, no formal complaint was made by her, and she had an emotional outburst and was ranting and deflecting the issues being raised with her. The Applicant said she did raise that Ms Hosking had not been at work supporting her.

[67] On 12 December 2024, Mr Gow and Ms Hosking met with the Applicant via zoom to notify her of her termination. She was informed not to attend her remaining two shifts for the week, but that she would still be paid for them. Ms Hosking also issued an email to the Applicant confirming the termination:

I am writing to you about the termination of your employment within your probation period at Anytime Fitness.

On Monday 4 June, you were provided with a verbal warning relating to punctuality after arriving late to work multiple times, including sleeping in for 2 hours on Friday 31 May. You were advised that this cannot continue.

On Wednesday 31 July, I again met and discussed with you and advised that we need to see an improvement in your reliability and punctuality.

On Friday 6 December, Andrew and I met with you to clarify some areas of opportunity regarding your role. Some of the areas outlined included; reliability, independent decision making, leadership/team communication as well as some prospects not being added to our system in a diligent manner.

On Wednesday 11 December, Andrew and I met with you a second time and you were advised that your reliability and other work expectations had not improved to the level required of your role.

Therefore, on Thursday 12 December, we have decided to terminate your employment within your probation period due to the following reasons:

Since commencing your casual employment in May, there have now been dozens of instances of cancelling, changing, or arriving late to scheduled shifts. This has created a pressure on the team and the business.
Since commencing your part time role 9 weeks ago, only 3 of these weeks have had full attendance.
When these concerns were brought to you, there was no accountability or responsibility to recognise and improve in these areas.

Your employment will end immediately. Based on your probation period, there is no notice required, however we have offered to pay out your remaining shifts this week. You will also be paid your accrued entitlements and any outstanding pay, up to and including your last day of employment on Thursday 12th December.

Please organise the return of your Anytime Fitness keys and uniforms by 12pm tomorrow/Friday (or let me know how you will be most comfortable returning the items)."

[68] It was put to the Applicant that the first recorded instance of her making a formal complaint was by email on Friday 13 December 2024, which was after the termination of her employment. The Applicant said her complaints were about her rate of pay, the absence of her Area Manager and about her roles and responsibilities and not just about her rate of pay. The Applicant said she did raise the complaints on 11 December 2024.

[69] Ms Hosking said even if the Applicant had been promoted to the Club Manager position, her rate of pay would not have increased because she was already being paid equivalent to level 4 of the Award. It was put to Ms Hosking that the Employer did not have a meeting with the Applicant to indicate she may have to be demoted to a casual position. Ms Hosking said there were four or five meetings with the Applicant where the need for her to show improvement was discussed.

[70] It was put to Ms Hosking that it was the Applicant that instigated these meetings. Ms Hosking said all of the meetings were instigated by herself or Mr Gow except the meeting of 11 December 2024. Ms Hosking said the Employer was trying to work with the Applicant and coming to the meetings with a solution-based approach, however toward the end Ms Hosking said she began to discuss with Mr Gow and the Owner, options including termination or offering casual employment.

[71] The Applicant put to Ms Hosking that at the meeting on 11 December 2024, she raised a complaint about Ms Hosking not being present at work, and her being instantly demoted after she said that. Ms Hosking said it was not an impulsive decision to offer the casual position and had been discussed with Mr Gow earlier. Ms Hosking said the meeting itself went for about one hour. Ms Hosking denied that the decision was impulsive, and she did not want to go down that path, however the Applicant's emotional outburst and aggressive deflection of issues showed the Applicant was not up to a leadership role.

[72] The Applicant submitted that on 11 December 2024, she made a complaint about the pay she was receiving, about the absence of her Area Manager, and about her roles and responsibilities. After she exercised these workplace rights she was instantly demoted to casual employment and dismissed not even 24 hours later.

[73] The Applicant contended that before her dismissal she had not received any written warnings or verbal warnings about her performance or being late to shifts. She referred to two main instances to support the assertion that she was performing well:

On 4 December 2024, 8 days before her dismissal, she received a text message from Ms Hosking, stating "Morning lovely, Andrew and I would like to book in a progress call with you on Friday at 9am to check in on your growth and discuss some areas of opportunity for your goals before this year is up".

Secondly, when she was offered the Assistant Manager position and received an email from Ms Hosking stating "Once again, congratulations on earning yourself a promotion to Kirwan's part time Assistant Manager! You have shown a lot of growth in your role these past few months and we can't wait to see what else you'll achieve within the AF space".

[74] In the Applicant's submission, these two instances demonstrate that she was going really well in her employment. She contended that when she was running the club and wasn't raising concerns about her pay or responsibilities, everything was fine. However, once she exercised her workplace rights and spoke up, she was terminated.

[75] Ms Hosking submitted that the termination of the Applicant's employment was solely based on her ongoing performance issues and the refusal of her responsibilities. She contended that throughout the process, they treated her with dignity and respect, and made multiple efforts to support her professional development. Ms Hosking submitted pages of text messages demonstrating the Applicant calling in sick and being late to work to support this conclusion, as well as emails between herself and Mr Gow outlining the business' concerns.

[76] The Applicant strenuously disagreed that Ms Hosking made multiple efforts to support her professional development. She said this is false, her termination was not based on her performance issues or refusal of responsibility, because none of the issues stated in the termination letter were addressed with her. The Applicant submitted that this is the first time she is seeing most of these documents, 6 months after her dismissal.

[77] The Act sets out the relevant protections in ss.340 and 341 as follows:

(1) A person must not take adverse action against another person:

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.

Note: This subsection is a civil remedy provision (see Part 4‑1)."

(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee - in relation to his or her employment.

Meaning of process or proceedings under a workplace law or workplace instrument

(2) Each of the following is a process or proceedings under a workplace law or workplace instrument:

(a) a conference conducted or hearing held by the FWC;

(b) court proceedings under a workplace law or workplace instrument;

(e) making, varying or terminating an enterprise agreement;

(f) appointing, or terminating the appointment of, a bargaining representative;

(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;

(h) agreeing to cash out paid annual leave or paid personal/carer's leave;

(i) making a request under Division 4 of Part 2‑2 (which deals with requests for flexible working arrangements);

(ia) giving a notification, or receiving an offer or notice, under Division 4A of Part 2‑2 (which deals with casual employment);

(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;

(k) any other process or proceedings under a workplace law or workplace instrument.

Prospective employees taken to have workplace rights

(3) A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.

Note: Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement.

(4) Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earnings.

(5) Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2‑8 or 6‑3A (which deal with transfer of business)."

[78] The Applicant's case appears, in summary, to be that she was not made aware of the issues relied upon by the Employer to affect her termination, prior to the termination. Those issues mainly being her not performing up to the required standard of the roles she was being promoted into, and her reliability of attending shifts and being on time. However, this does not appear to be the case. Both parties have provided or referred to, and it was not disputed in evidence, that the Applicant was engaged in several meetings about her alleged unreliability. Whether the exact scope of the issue was sufficiently explained to her is debatable, however it does appear issues of concern have been raised with her, and the Applicant does acknowledge it in her material, despite then contradicting the acknowledgement a few sentences later.

Much of the evidence was contested as to who instigated various conversations and whether the meeting summaries or recollections of the meetings were correct or not. This is not actually materially relevant to whether the Employer did actually have concerns regarding the Applicant's reliability and performance, and if she had been made aware of these prior to dismissal. Further, the question that I must answer is whether the actual reason for dismissal was that the Applicant exercised a workplace right by raising complaints including about her pay and conditions, or lack of support or as the Respondents argue, that she was dismissed due to poor performance. As I made clear to the parties during the hearing, this is not a case about whether, objectively assessed, the Applicant was treated unfairly by the Respondents.

[79] What appears to have occurred over the employment relationship is that the Employer did instigate conversations regarding the Applicant's performance, including her attendance issues, but this may not have been as overt as it could have been. Based on the submitted evidence, Ms Hosking's emails that she says were intended to demonstrate that the Applicant was on a 5-week performance plan, could be construed as a positive email with only minor issues being raised. The Applicant submitted that she had never been properly presented with records of her unreliability to respond to prior to dismissal. I accept that this may have been the case, and the Employer may have instigated conversations in vague terms or in singular instances, causing the Applicant to not see them as linked. Therefore, I can understand to some extent, the Applicant's alleged confusion when she was dismissed for performance issues.

Miss Maddison Clouder v Anytime Qld Pty Ltd, Mr Andrew Gow [2025] FWC 1978

At a glance

Court

Decision date

Source

Judgment (206 paragraphs)

Miss Maddison Clouder v Anytime Qld Pty Ltd, Mr Andrew Gow [2025] FWC 1978 (10 July 2025)

Parties

Legislation Cited (1)